Defending against the Statement
Any criminal defense attorney knows that a vast majority of criminal defense cases involve some sort of statement made by the defendant with most of them being classified as an admission. Too many criminal defense attorneys see a confession as an insurmountable hurdle. I disagree. I have been able to take a child pornography distribution case to trial with a confession and still get a not guilty verdict. Like anything else, its all in how you spin it.
Clearly, you will want to attack the statement in almost any case. Its much better to work with a blank slate. When the defendant makes any type of statement, even one that would not be considered a confession, the defense is often boxed into a certain set of facts. Thus, in every case where the client makes any type of statement, a Miranda motion should be filed. Most motions result in a hearing and this is a good opportunity to see how the defendant will stand up to cross examination if there is any thought to putting him/her on the stand. Even if the defense attorney wants the statement to come in, filing the motion helps create appealable issues in case of conviction.
Of course, if the statement is entirely self serving, the State may not bring it into trial unless the defendant testifies to the contrary. If the statement is helpful, it is doubtful that this will occur anyway. Even though the statement will not come in for this reason, it should be brought out that the client made the statement through the officer that took it. When the defendant testifies, he/she should be asked at the end if everything he/she said was consistent with what they told the officer (it should be!). In summation, the attorney should then argue that the statement (and therefore the defense) is credible because it was made before an attorney was involved and was not adequately challenged by the State.
There is an entire body of law on Miranda so I will not go into same here. However, from prior success I can add a few tips. Instead of just focusing on the readings of the rights themselves, defense attorneys should look at the motion in terms of the big picture. What is the atmosphere surrounding the questioning? What is the tone of the police? How long does it go on for? Do the police wear down the defendant? Does the defendant break? What is the body language. Be sure to describe, in detail, what the video shows so that you can make a crystal clear record. Even though the judge will see the video, paint the picture ahead of time.
If the statement does come in, then the entire defense must be built around it. This will often focus the entire defense case on the issue of knowingly, I.e did the defendant knowingly distribute the child pornography?