Legal Question in Criminal Law in California

Re: Due Process

You haven't provided enough information for a thorough answer, but I want to address the part of your question concerning Miranda rights.

Many people believe the police always have to Mirandize anyone they arrest and that charges against the arrestee have to be dismissed if they don't. This is not how it works. A Miranda violation is not a "get out of jail free" card.

The validity of an arrest has nothing to do with Miranda warnings. Miranda becomes a factor in court -- and even then, only if the prosecutor tries to use as evidence answers the defendant gave to police questioning while he was in custody. (Note that "in custody" does not only mean when he was behind bars; people can be in custidy while the police question them at the scene and even before the police tell them they are under arrest.)

If the prosecutor never tries to use any evidence obtain in violation of Miranda, your son should be able to have that evidence excluded. If the tainted evidence is critical to the prosecution's case, your son may get the case dismissed or win an acquittal on that basis.

But if the prosecution *doesn't* try to use such evidence -- or if there is none (because the police didn't question him improperly) -- then Miranda is a non-issue for him.

But even if your son does get some evidence excluded under Miranda, the prosecution may have plenty of other evidence it can use. That evidence may be enough to persuade a jury and, if it does, then your son can be convicted and sent to prison.

Re: Due Process

What was your son charged with? and is he still in custody?