Criminal Law Blog
September 18, 2005
Miranda re-done: If You Give Up Your Right To Remain Silent, They Won’t Pretend They Didn’t Hear You
Part of the Miranda warning we know so well from TV says: “If you give up your right to remain silent, anything you say may be used against you.”
The rule might not always be so clear for Texas juveniles anymore.
When a child is charged with a crime, his lawyer might want to try to get a deferred prosecution for him. And a deferred prosecution is a pretty good situation, generally. I talked about deferred prosecution in another Criminal Law Blog.
Here is the twist for juveniles.
With House Bill 1575, the legislature has tried to change how the conversation goes in deciding whether a juvenile actually receives the deferred prosecution.
The added language is:
“In deciding whether to grant deferred prosecution …, the court may consider professional representations by the parties concerning the nature of the case and the background of the respondent. The representations made under this subsection by the child or counsel for the child are not admissible against the child at trial should the court reject the application for deferred prosecution.”
Suppose for a minute you are the prosecutor of a child who applied for deferred prosecution and (luckily, from your point of view) didn’t get it. The added language says, among other things, that whatever the child said is not admissible against him at trial.
Now suppose the child’s case goes to trial. Are you, the prosecutor, going to pretend you didn’t hear what that child said?
Of course not.
The prosecutor can’t offer the child’s statement (from the deferred prosecution conversation) against him, but he can still use the child’s comments to figure out what the potential defenses are, who the defense witnesses are, and where more evidence might be found.
The defense bar knows this.
So just as before, the only responsible advice I can give a client is: “don’t say anything unless I tell you it’s okay.”
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