What Happens if the Police Arrest Me Without Reading My Miranda Rights?

In Miranda v. Arizona, The United States Supreme Court expanded the Fifth and Sixth Amendment by formulating something called the Miranda warning.  The Miranda rights are interpreted from the Fifth Amendment’s right against compelled self-incrimination and from the Sixth Amendments right to an attorney.  As the warning is stated by the police, the words are meant to put the suspect at notice of his or her Constitutional rights.   However, the Fifth and Sixth Amendment is enforceable only against government actors and Miranda rights are only applicable when the suspect is being interrogated in custody— the police exercise of the power to deprive a person of his or her liberty.  The warning must be given by the government actors--usually law enforcement agencies such as the police, FBI, or even the IRS--prior to the interrogation.  For every jurisdiction, it is somewhat different, but the idea is the same.  The usual Miranda warning states:

“You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand these rights?”

The most important part of the Miranda analysis is what happens if the police fail to “Mirandize”--read the suspect the Miranda warning?  A Miranda violation.   However, The United States Supreme Court has well established that the only redress allowed to the accused after a Miranda violation is the chance to suppress all the evidence that arises from the interrogation.  This means that anything the suspect said or admitted without being Mirandized when in custody cannot be used by the government to prove his criminal conduct.  The beauty of it is that any evidence that stemmed from the evidence obtained in violation of Miranda cannot be used.  Thus, if the suspect admitted to using the car parked on the next street to commit the crime in question, then the car and any evidence that stems from it must be suppressed and cannot be used.  The Supreme Court calls this the fruits of the poisonous tree.  If the tree, the evidence obtained in violation of Miranda is poisonous, then the fruits are as well.

Off course, with every rule there are its exceptions.  With Miranda, The United States Supreme Court has crafted many exceptions since its inception.  One exception is that the prosecutor can use the evidence for the purpose of shining negative light upon the accused’s character as a witness in court.   Another exception is if the police collect the evidence in question from an independent source, then it can be used to prove the accused criminal conduct.  You can see how everyone can get creative.

In conclusion, Miranda violations are not automatic dismissals of the accused case; however, the violation offers the accused a chance to suppress evidence that the police collected, thus making it tougher on the prosecutor to prove the accused criminal conduct.  

KAASS LAW is authorized to practice law in California.   The above content is intended for California residents only.  This content provides only general information which may or may not reflect the most current legal developments. KAASS LAW expressly disclaims all liability in respect to actions taken or not taken based on any of the contents of this website.

Click here to learn more about a Petty Theft, PC § 484 or PC § 488, click here.  

Click here to learn more about DUI, PC § 23152, click here.

Click here to learn more about Drug Possession, HSC § 11365

Overview on Third Party Beneficiaries: Most of you are a part of a contract that you do not even know about.

Non-parties to a contract.  Yes, this happens often. The easiest example of such a contract is a life insurance contract.  The insurance company is the promisor; the insured is the promisee; and the person who will receive the life insurance benefits is the third party beneficiary.

The general rule is that a contract operates to confer rights and impose duties only on the parties in the contract and no other person. However, there are exceptions. Exceptions include contractual rights involving third party beneficiaries, and contractual rights or duties that are transferred to the third parties.

Third party beneficiaries are people who benefit from a contract, which they were not a party to.  The law is convoluted; however, here is our best attempt to simplify it without losing content.

Third party beneficiary rights and duties overview:
1. The original contract will confer the rights and duties on the third party.
2. Intended v. Incidental - only intended beneficiaries have contractual rights. Intent of the parties to the contract determines whether the contract is intended or incidental.  Intended beneficiaries are usually either donees or creditors.
3. A contract cannot be cancelled or modified without the third party beneficiary consent if his/her rights were vested.

Vesting occurs when the third party beneficiary:
1. knows and relied on the contract,
2. knows and assents to the contract, or
3. brings a lawsuit.

Who can sue who and recover from whom?
1. The third party beneficiary can recover from the promisor,
2. Promisee can recover from the promisor,
3. Generally, beneficiary cannot recover from the promise, unless the creditor beneficiary can recover from the promisee; however, only from a pre-existing debt.

Know your rights as a third party beneficiary. The attorney's job is to know and consult you on your rights; however, you need be tenacious to pursue them.

KAASS LAW is authorized to practice law in California.   The above content is intended for California residents only.  This content provides only general information which may or may not reflect the most current legal developments. KAASS LAW expressly disclaims all liability in respect to actions taken or not taken based on any of the contents of this website.

How to Terminate a Contract that You Have Gotten Yourself Into?

Sell me this and sell me that, in today’s paperbacked commercial world, words are just not enough.

There are several scenarios where a contract may be terminated or revoked in common law. Basically for every contract, except for contracts involving the sale of goods; items movable at the time of sale.  

Here are some ways of terminating a contract:

1. Rejection  –  This happens when the offeror terminates the contract by: express words, counter offer, conditional acceptance, or additional terms. However, a counter offer can still be considered an offer if the counter offer ends in a question. This is not to be confused with bargaining. Moreover, you can tell when there is a conditional acceptance when you hear these words: if, only if, provided, so long as, but, on condition that. Lastly, changing the terms of the offer will terminate it the offer. The additional term kills the offer.

2. Revocation – When the offeror unambiguously terminates the offer. It must be done before the offeree accepts the terms and the offeree is notified of the revocation.

3. Death or insanity of either party can terminate a contract.

4. Lapse of Time – If there is a particular due date set for accepting a contract, the offeror has the right to terminate the contract if the requirement is not met.

5. Destruction of the subject matter can also cause a termination of a contract.

6. Supervening Illegality – This is when the subject matter in the contract becomes illegal.

7. Terms – The contract may be terminated if the other party does not cooperate with the terms of the contract. Whatever the offeror says, goes. However, if the offer is rejected, the offeror may restate the same offer and create a new power of acceptance.

This was just a slight overview on contract terminations/revocations. For more information contact us at: 310.943.1171.

Click here for more details on Business Law.  

What a CONTRACT Really is

Most of you are aware of them, but don’t really understand them.  Here is a slight overview.

A contract is a voluntary, deliberate, and legally binding agreement between two or more competent parties. Contracts are usually written but may be spoken or implied, and generally have to do with employment, sale or lease, or tenancy. 

A contract is formed when: 

1. There is an offer,

2. There is an acceptance of the offer, and 

3. There is consideration in exchange of the offer or acceptance.

Each party has its own rights and duties relative to the rights and duties of the other parties. However, while all parties may expect some benefit from the contract, it is not necessary that both parties will equally benefit. Existence of a contractual relationship does not necessarily mean the contract is enforceable, or that it is not void or voidable. Contracts are normally enforceable whether or not in a written form, although a written contract protects all parties. Some contracts must be in writing to be legally binding and enforceable. Those contracts include but not limited to: 

1. Sale of real property,

2. Installment plans, and

3. Insurance policies.

Be sure to read the entire content of a contract very carefully before putting you John Hancock or consult with an experienced attorney to draft the appropriate contract for you business needs.  

Learn more about::

Learn more about Recovering Damages from Breach of Contract and watch our Breach of Contract Damages Video.

Also read our Business Contract Dispute post and our Contractor Agreement for California Businesses post on our blog.  

Choosing the Right Business Entity for Your Businesses

Operating, owning or starting a business is becoming increasingly complex. Good business planning, whether for new or existing businesses must take into account the legal issues the business will face and consider the best legal structure for the business in today’s regulatory environment.

There are practical and legal issues to consider carefully in choosing the correct type of business organization to meet your specific needs. Options include: sole proprietorship, corporation, partnership, limited liability company; and for professional businesses, a limited liability partnership. Your business purpose and management goals should be planned strategically to decide on the right business structure for your specific business goals. 

Once you decide on the legal structure of your business, an experienced attorney will draft the appropriate documents, policies and procedures you will need and advise you on legal compliance requirements to ensure that you follow the rules that apply to your business. There are different filing and regulatory obligations for each type of business organization.

For more information contact our law firm in Los Angeles at: 310.943.1171.

KAASS LAW is authorized to practice law in California.   The above content is intended for California residents only.  This content provides only general information which may or may not reflect the most current legal developments. KAASS LAW expressly disclaims all liability in respect to actions taken or not taken based on any of the contents of this website.