Tuesday, May 25, 2010

Voir Dire, Miranda, and Interrogations

Here are a few tidbits from the recent 11th District Court of Appeals decision in Gately v. State. Sorry, no time for analysis, but thought the following holdings might interest you.  Not anything new, just good reminders.

To Preserve Error During Voir Dire Your Must Strike the Complained-of VenireMember -
To preserve error on a trial court’s denial of a challenge for cause, an appellant must take the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.  Because appellant did not use a peremptory strike on Northcutt, appellant failed to preserve error on his first issue.
Miranda Waivers Need Not Be Express to be Effective -
However, appellant argued that the statement was inadmissible because he did not expressly waive his right to counsel.  Neither a written nor an oral express waiver is required to support a finding that an accused waived his Miranda rights.  A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.  However, a waiver need not assume a particular form, and in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.”  The question is not whether an accused “explicitly” waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily.  Whether an accused waived his Miranda rights is determined from the totality of the circumstances.
A Suspect's Invocation of his Constitutional Right to Remain Silent, however, Must be Express -
A police officer need not stop questioning a suspect unless the suspect’s invocation of rights is unambiguous. The officer is not required to clarify ambiguous remarks.