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February 17, 2011


ex post facto as a matter of fact!

by Andrea O'Connell

Ex Post Facto and the Revised Interpretation of Miranda

In yesterday’s post I wrote about the US Supreme Court decision to alter the application of the Miranda Warning. I mistakenly thought there would be a chance that the new Miranda Rule would apply in the Anthony case.  I was very wrong and extend my thanks to “Mike” for reminding me that criminal law will not look back and apply a new law to something that occurred in the past.

Ex Post Facto, Latin for “after the fact” provides Americans the protection from the court deciding that an act that was lawful at one time from turning illegal in the future.  Our US Constitution will not allow prosecution resulting from a changed law.

The Miranda Right, aka the right to remain silent, is a constitutional right and taken very seriously.  If you are suspected of a crime, and read your rights, it’s referred to as your being “Mirandized.”

Being Mirandized includes having these statements (constitutional rights) read to you by a law enforcement officer.  Although the Supreme Court did not specify the exact wording of the statement, the following phrases are excerpts:

  • You have the right to remain silent.
  • Anything you say can be used against you in a court of law.
  • You have the right to have an attorney present now and during any future questioning.
  • If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

A suspect must be told these constitutional rights when they are in custody, prior to any interrogation.  if it can be proven a suspect has not been informed of their rights, it may result in dismissal of the charges.

American Judges are sensitive to protecting the rights of citizens via Miranda.  There is a higher purpose at play and many Judges feel it’s necessary, and it is their duty to protect the rights of every citizen.  Even if one citizen is clearly guilty but was not properly Mirandized, it is better to let one guilty person go in order to protect the rights of the citizens at large who are truly innocent.

The new interpretation of Miranda by the Supreme Court weighs more favorably to law enforcement than to a citizen.  Now, if you are advised of your right to stay silent but decide to begin talking anyway, you have just waived your right to remain silent, and it is no longer incumbent on law enforcement to ask you if you wish to waive your rights.

Therefore, Judge Belvin Perry will look at the statements that Casey Anthony made to law enforcement on July 15 and 16, and he will determine if Casey was, as Cheney Mason alleges in his motion, “in custody” and never read her rights.  Judge Perry will base his decision on the Miranda Rules of 1966.

Many thanks once again to Mike for reminding me about Ex Post Facto!

2 Comments Post a comment
  1. offthecuff
    Feb 17 2011

    This should make for interesting suspense. A lot of police work is at stake here. When did LE stop helping her find her child, and start suspecting her? Her lies to them while they worked their hearts out to find this child infuriated them, as it did most everyone.

    • Feb 18 2011

      Hi Off the Cuff,
      Absolutely – the OCSO must have been furious at the fact that Casey Anthony told such a twisted story and stuck with it. I am sure that Melich knew from the get-go what he was getting into – he must have been briefed about events leading up to his being assigned the case; and I have no doubt that as he approached the Anthony house and garage, he smelled the car immediately. So, he finds out the child has not been reported for 31 days, he smells decomp in the car, the mother of the child is telling a bizarre story, and to top that off, she is emotionless. So, I am completely sure that Yuri and the other detectives and officers on the scene in the early morning hours of the 16th, knew that Casey needed to be watched.


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