12 August 2014

Why Won't Anyone Talk To Me?

by David Dean
  • You have the right to remain silent when questioned.
  • Anything you say or do may be used against you in a court of law. 
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
Well...are ya, punk?
Not Miranda, but Lorre looking like he needs some "coaxing."

Every writer of crime fiction runs into the Miranda Warning sooner or later.  How many TV episodes have ended with, "You have the right to remain silent..."?  There's just no getting away from those famous words arising from a 1966 Supreme Court decision regarding the Fifth and Sixth Amendment rights of one Mr. Miranda.  It was decided that his admissions during police questioning  leading to his conviction for rape and kidnapping were inadmissible, as he did not fully understand his right against self-incrimination, or the right to have an attorney present during questioning.  Out of that decision arose the warning that all U.S. police must give prior to custodial interrogation of a suspect.

A lot of young officers come out of the academy wringing their hands and mumbling the Miranda Warning over and over in their anxiety.  It's a mantra they don't feel comfortable going a day without saying for fear of running afoul of someone's civil rights.

Citizen: "Officer, can you help me find Fluffy, my cat?  I'm so afraid something's happened to her." 
Police Officer: "Of course, ma'am, I'd be happy to, but did you know that you have the right to remain...."

Not everybody needs to be delivered their Miranda rights.  It's okay for the police to talk with citizens, and even interview them without the Miranda litany occurring on every occasion.  It's a fairly simple formula that results in the mandatory warning: Interrogation + custody=Miranda.  And therein lies that grey area the police find themselves in so often.  What exactly is "interrogation" and "custody"?  Are interviews the same as interrogation?  If a person is in the police building, is he/she in custody?  We damn sure know what the Warning is, but the application can get fuzzy.  Maybe it's best just to sing it out from time to time in case someone's thinking of confessing.

Police interviews can be described (by me, at least) as the questioning of potential witnesses, complainants, victims, and even those temporarily detained at the scene of a crime or accident.  The object of such interviews is to determine exactly what has occurred and who may be involved or have witnessed the incident.  I know what you're thinking--if someone's been detained, don't you have to Mirandize them?  The short answer is no.  Not always and not if the officer is yet to determine that a crime, in fact, has been committed, and that the person he is speaking with is a suspect.  Once a person becomes an active suspect the relationship changes; especially if he has been detained.  The officer would be wise to read him his Miranda Warning at that point, if he's going to continue questioning him.  Now it's now longer an interview, with the overarching goal of determining the circumstances and players, but an effort to determine the amount of involvement by the suspect.  In other words, he has become the object of the questioning, and that's interrogation.

But what if this happy individual is a suspect, and you the police officer are interrogating him, but he's not in custody?  Example: You're sitting across from him in his own living room firing questions, while he answers them with a patient, but weary, air.  Does he get the Miranda or no?  Again, the short answer is no.  Even though he's being interrogated, he's not in custody.  He's in his own home, no cuffs or restraints are involved, and you don't have half a dozen uniformed officers surrounding him (hopefully).  That being said, it would probably be wise to do so, because if he does make any admissions, his attorney is going to do his very best to have them thrown out.  The absence of a Miranda Warning will form the centerpiece of this effort, and he will cite his client's trusting nature and ignorance of his right to have an attorney present as reasons to do so.  Attorneys have argued in the past that the mere presence of a police officer creates a custodial environment.  My own children would have agreed; fortunately the courts haven't yet gone that far, but you can see how skittish these things can make the police.

Even the suspect that voluntarily comes into the police department in order to be questioned is not necessarily considered to be in "custody."  So long as he understands that he is free to  leave the situation doesn't rise to the level of "custodial interrogation."  But the officer has to be very careful here.

Do suspects voluntarily confess?  Yes, yes they do.  And it even happens without the torture techniques for which the police are so well known.  There's several reasons for this in my experience.  One is that they just can't contain their guilt.  I know that seems a very antiquated notion these days, guilt, but there are some poor souls genuinely afflicted with conscience.  Fortunately for defense attorneys their number seems to be decreasing.

Another reason is to cut a deal.  I would say that this is the most common reason--self interest and preservation.  They're the practical ones--they know their butt (or some other appendage) is in a wringer and they want to cut their losses.  These kind of arrangements require the blessings of the prosecutor, as the police are not generally allowed these powers without him/her granting them.  The defendant's attorney is, no doubt, going to be part of these negotiations.

Inadvertent.  This category actually falls more into the "admission" category than the genuine confession.  Suspect is much smarter than the police and enjoys letting them know it.  This usually ends with the suspect stopping in mid-sentence with an expression of growing horror on his face as it dawns on him what he has just let slip.  Sorry, after the Miranda Warning, there's no take-backs.

In closing, it's worth mentioning the Miranda Waiver.  Most states issue the police cards with both the Miranda Warning and a Waiver printed on them.  If the suspect wishes to cooperate, the waiver is signed, along with a block acknowledging that they have been read their rights and understand them.  Here in New Jersey we also have a requirement to videotape interrogations that occur within the police department.  As nearly everyone is convinced that confession=torture/coercion, the reason for this is obvious.

Now, is there anything you want to confess?  I'm all ears.

11 comments:

Fran Rizer said...

Okay, Chief Dean. I confess. I really enjoyed this post and it clarifies a lot.

David Dean said...

Thanks, Fran; I'm glad the info was useful.

R.T. Lawton said...

David, as usual, you pretty well covered the subject in an easy explanation.

Anonymous said...

Some fine lines of distinction but good to know. I would not want any part of me caught in a wringer by writing a scene with bad info. Thanks!

David Dean said...

Thanks, R.T.

Yes, Bradley those fine lines and shady, grey areas are what get cops into trouble. Thank God, we have attorneys to tell us (after the fact, of course) how badly we screwed up and to sue us.

Peter DiChellis said...

Great post. I think tv shows have led some viewers (and mystery readers) to believe a suspect must be Mirandized when arrested: "You are under arrest. You have the right . . ." etc., etc.

But as you point out, these Constitutional rights apply before interrogation, not upon arrest. I understand in some jurisdictions, patrol officers are instructed not to interrogate or Mirandize arrestees, because detectives exclusively handle interrogations. If suspects reveal important information before interrogation, detectives follow-up on the info. Seems like a walking a tightrope, but there it is.  

I think all this creates an odd situation for writers: accurately portraying when Miranda occurs might not be as believable as an inaccurate portrayal, because tv has so ingrained this particular inaccuracy. But it also suggests some interesting story possibilities.

David Dean said...

You're absolutely right, Peter. Most cops Mirandize upon arrest just to be on the safe side (it can't hurt) even though they may have no plans to interrogate the suspect. It does help cover those spontaneous admissions that sometime occur during transport. You just never know what people might say when sitting in the back of a police car.

Leigh Lundin said...

Don't you love the dumb criminals convinced they're smarter than the police?

We think of the Miranda being a uniquely American warning, but (as I mention in an upcoming followup to my Debtor's Prison article), the concept has been around for more than a century and has spread around the world. I enjoyed hearing how it's used in practice.

David Dean said...

Yes indeed, Leigh, there are practical reasons why vanity and pride are considered cardinal sins.

Stephen Ross said...

Excellent, David!

FYI, here in New Zealand it's simply called a "caution" -- as in "The police have cautioned Mr. Ross as to his splitting of infinitives." It goes like this:

"You have the right to remain silent. You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court. You have the right to speak with a lawyer without delay and in private before deciding to answer any questions. Police have a list of lawyers you may speak to for free."

David Dean said...

I like the succinctness of "caution", Stephen. Here in the States, we seem to feel the need to name every law, or bill, for whoever inspired it. I guess it shows that we are a sentimental people, but it can get awkward in actual use. And I'm sure that the average guy could not tell you, so long after the fact, who Miranda was or why his name pops up in crime shows on television.