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Police interrogation: Do you know your lawyer can be present?

The US Supreme Court is considering a Florida case in which the defendant – and Florida courts – said he hadn’t been adequately informed that his lawyer could be present.

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“The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning,” the Florida Supreme Court said in its ruling.

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Florida’s Chief Assistant Attorney General, Robert Krauss, is asking the US Supreme Court to overturn the Florida high court decision and declare that the Miranda warnings given to Powell reasonably conveyed his rights.

'Unduly technical' decision

“The decision below rested on an unduly technical and inflexible approach to reviewing the sufficiency of Miranda warnings,” Mr. Krauss writes in Florida’s brief to the court. If upheld, he said, the Florida decision would “frustrate the search for truth in criminal proceedings.”

US Solicitor General Elena Kagan filed a brief on behalf of the Obama administration siding with the Florida attorney general’s office. She says the warnings given to Powell were sufficient.

Ms. Kagan said that federal law enforcement agencies follow a policy of explicitly telling suspects: “You have the right to have a lawyer with you during questioning.”

She said this was “sound law enforcement practice” that fulfills the purposes of Miranda in “the most efficient and effective manner.”

But also she said the warnings given to Powell by Tampa police conveyed enough information to pass constitutional muster.

“As a constitutional matter,… the warnings read to [Powell] adequately advised him that he had the right not only to speak with counsel before questioning, but also to turn to his lawyer for help at any time, including during the interview,” she writes in her brief.

Powell’s lawyers disagree. They say federal courts that have examined Miranda warnings similar to Powell’s have found them deficient. The lawyers add that a survey of the various Miranda texts used in 900 jurisdictions in 49 states found only five advising of a right to a lawyer before questioning without also advising of a right to counsel during questioning.

“The Florida Supreme Court did not err in finding that the warning was misleading,” writes Assistant Public Defender Cynthia Dodge in Powell’s brief. She said the Florida court’s decision tracks the Miranda warning language adopted “by virtually every federal, state, and local law enforcement agency in the country.”

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