Missing word in BSO's Miranda warning allows accused killers to go free

Thought some of our law enforcement\lawyer members would be interested:


By Jon Burstein
Staff Writer
Posted July 13 2005

In part:

 

What paper is this from?

I'd reserve judgment until AFTER reading the opinion. Miranda warnings have been around a LONG time; I find it hard to believe that any American law enforcement agency could be using an incorrect form.

Frankly, I suspect it's bogus.

 

Sorry about that:

http://www.sun-sentinel.com/news/local/southflorida/sfl-cmiranda10jul13,0,3149545.story?coll=sfla-home-headlines

May need a free username\password

Or Google: Miranda broward sheriff
and click "news"

 

I agree with Nosborne on this one. I reserve judgement until I see the actual brief (not the news story). Sound bites are meaningless (remember the McDonald's coffee verdict, there was much more to that than Reagan's soundbite version).

Cops are smart (at least the ones I know). Most of them know the law well and usually when they "skirt" the law it is done intentionally. Your rights and the constitution are never a "technicality" - they are what protects you from government abuse. Its pretty simple - either follow procedure or you lose.

 

Even the news story says that the state's attorney warned the sheriff that his Miranda form was defective as early as 2001.

There is nothing "technical" about being informed that you have a right to the presence of counsel DURING interrogation, folks. That is an important right; if you don't think so, you've never been in a Grand Jury hearing.

I get VERY suspicious whenever I see law enforcement acting reluctant to give complete warnings.

 

Believe it or not, The Rockford Files had a two-parter on Grand Jury abuses in California. California changed its Grand Jury procedures and the show probably had something to do with that.

IIRC, Rockford was not allowed to have legal counsel in the Grand Jury (it was not about him) and he was not allowed to decline to answer a question (Fifth Amendment) after having answered any question.

You'd probably like that episode if you can find it.

 

The Rockford Files is entertainment and not real life. You can have legal councel in CA but they usually cannot interfer with the provess. I am not a lawyer, but I believe you have the right to invoke your 5th amendments rights at any time.

I have never been arrested nor accused of anything more than a minor traffic offense, but I have a rule: Never answer questions - it is never to your advantage. I would also never take a polygraph (more junk science for non-scientists).

 

Seems pretty cut and dry to me.

You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements.

 

Don't laugh...

In the early 80's the Army had to change its rights warning form after a judge (supposedly in Hawaii) said the previous one was defective. I am no lawyer but didn't exactly see much difference in the new one. It was mostly semantics. To me it still said the same thing...

 

There's a philosophical question here. What's the purpose of the criminal justice system?

A. To protect society from criminals? Obviously people do prey on other people.

B. Or to protect society from the police and prison system? Obviously tremendous abuses of state power do occur around the world.

I think that this is one place where liberals and conservatives neatly divide. Conservatives tilt strongly for A, while liberals tilt strongly for B. That's probably a function of my insider's/outsider's distinction. Insiders identify with the system and want protection from dangerous rogue elements. Outsiders distrust the system and fear oppression by it.

OK, I haven't read the news story and am just hypothesizing here. But apparently there's no doubt that this gentleman is in fact a murderer. I assume that his confession wasn't tortured out of him. And I'll assume that it's true that he wasn't properly Mirandized. So what to do? Choose A or choose B?

Apparently the court rather dramatically chose B. They chose to privilege the rather abstract protection against self-incrimination over the all-too-concrete protection against murderers.

While that might be defensible, basing it on the fact that "The form advised suspects they could request an attorney before questioning, but omitted mentioning that they have a constitutional right to have an attorney present during questioning" does make the decisions sound rather ideological.

 

Bill

The answer is A and B.

Miranda wasn't really about Ernesto Miranda. He was a scumbag rapist who later died in jail like the douchbag convict he was. It was about the protection of each and every one of us from Police (aka "State") misconduct.

For every Miranda, there are probably as many arrested on false charges for whatever reason. These are the ones you wish to protect.

Again, the constitution is not a technicality. Any LE officer who thinks so has no business with a badge. This is also not a liberal/conservative issue as well. Both Cons and Libs like their civil liberties. Even scums like Karl Rove deserve their day in court, and their constitutional rights before summary execution for Treason. P

Also - don't assume that the confession was totally voluntary. This may be in fact the case - but you never know. I have always had the belief that all interrogations be videotaped in their entirety in order to be admissible. (Very cheap technology - no reason for them not to be). I know lots of departments (Oakland as an example) have just that policy.

 

BillDayson,

Your division fits quite neatly with the literature on the subject. A fellow named Packer (IIRC) said that there are two Criminal Justice models, viz:

-the Crime Control model, and

-the Civil Rights model.

Which model we stress seems to depend on whether we have suffered more at the hands of criminals or the state in the recent past!

Our Declaration of Independence talks a LOT about the abuses the Thirteen Colonies suffered at the hands of the British King whilst he was enforcing the law hereabouts. It says nothing about our suffering from criminal behavior. It seems logical, therefore, that our constitutional law from that era would tend toward the Civil Rights model.

During and (long) after crime waves, though, the public seems to be quite willing to surrender its civil rights in the name of crime fighting. Foolish; politicians are not above using "moral panic" for their own longer term ends...

I'd guess that, in general, what we do at any given time is find a middle ground between the two models, sometimes tending toward crime control, as now, sometimes tending toward civil rights, as right after the Viet Nam war.

 

I have to disagree there. Just last night, I was at a domestic in an apartment building that was called in by one of the neighbors, but the husband & wife were adamant that nothing was wrong. It was a really busy night, with priority calls starting to stack-up, so ordinarily I would have accepted that and moved on.

However, the husband wanted to play "shithouse lawyer", refused to even tell me his name, and started spouting off about the Constitution. That irritated me so much that I started digging, and eventually one of the neighbors came forward to say she saw the husband slap the wife in the laundry room. So, husband was arrested for Domestic A&B. If he had just answered my questions, and kept his mouth shut, he most likely would have slept in his own bed that night.

So, my advice;

Answer simple questions - Yes

Keep running mouth about your rights - No

 

Great story, Bruce!

I'll reserve judgment, too, until I read something more reliable than a TV news story.

As for conservative vs. liberal, fine. I'm in favor of the Constitution and the law. Sometimes we need to take measures to protect our rights. This country was built on that concept, that we couldn't leave it up to a tyrant--even a benevolent one--to make those decisions. The same laws that protected Miranda, Larry Flynt, and any other similar case also protect you and me.

We protect criminals' rights because we're supposed to protect everyone's rights. To deny the accused the rights he/she deserves because we want to protect society from him/her is to prejudge the person. And there's plenty of that available already to protect the public (pre-trail incarceration for potentially dangerous suspects, like O.J. Simpson, for example).

I don't want the government deciding when I can and cannot have my civil rights, thank you.

 

That episode of The Rockford Files was done specifically to reveal what was going on with the Grand Juries in California. They've since changed the procedures.

The situation at the time was that you had to claim Fifth Amendment rights throughout the process. Once you had answered a question you had waived your Fifth Amendment right to decline reply.

The Grand Jury process is not the same as a trial and I would take nothing about that process for granted. Unless things have changed in California, there is no equivalent to a judge in a Grand Jury. There is, or was, a panel of citizens who are/were putty in the hands of the prosecutor for their ignorance of the law.

 

I was referring to an official police interrogration -- not a simple contact. Of course I would give me my, address, etc. But my next question would be what the purpose of the contact was and if anything I said could be construed criminal. If the answer was yes, I would simply not answer anything.

Unfortunatley what you posted, although interesting, is just your side of the story. What matters is all perspectives on what occured and the sequence of events. Of course, this is what courts are for.

 

I'm having trouble figuring out what single word could convey a concept as not-easy-to-convey-in-a-single-word as that "they have a constitutional right to have an attorney present during questioning." What single word are we talking about, here? Do we have both the words on the flawed form and then the supposedly "missing" word(s)?

Indeed, but then it changes everything. One may invoke one's 5th Amendment rights at any time during any testimony. What one may not do is use the 5th Amendment to cherry-pick which questions s/he will or will not answer. In most states, once one invokes the 5th Amendment, his/her testimony is done. It is even possible, upon motion, for all testimony up to that point to be stricken from the record. That's not the same as saying that once one begins to testify, one therefore waives one's 5th Amendment rights at a future point in said testimony simply because one began it, as has been suggested here is/was the case. There's actually a bit more to it than that, of course, but that's the quick-and-dirty overview.

I don't want to argue with you about this, Bruce, because it would make me appear less pro-police -- and perhaps less pro-Bruce, as a police officer, for that matter -- than I actually am. As I have told you, I respect you and your job and decided long ago that if I were ever in your city and needed a cop, I'd hope against hope for you to be the one who answers the call. So, please don't take what I'm about to say the wrong way...

Your response is typical of those in law enforcement... which isn't meant as a criticism so much as a mere observation. People in law enforcement tend to have an "if you have nothing to hide, then..." kind of attitude. But finding the delicate balance between making statements of non-self-incriminating information and explanation, and making statements against self-interest of the incriminating variety, is nearly impossible for most average Joes walking down the street. So, many of them just say nothing... thereby taking the whole "you have the right to remain silent" thing literally. Of course, you and I both know that a recent Supreme Court ruling does not permit a suspect to remain silent as to identity... or at least not without there being consequences. But as to the rest of it, your story feels, frighteningly, like your perp got punished for exercising his rights. Of course, I realize that that's not really what you're saying. He got punished for assaulting someone. And, of course I realize that it is the things he did say (rather than that which he didn't) -- and the disrespect with which he said them -- which occasioned the second look which lead to his eventual arrest. I get that.

But the problem is so much more complex than your story and recommendations allow the reader to understand. The courts have held that you guys are allowed to say things like, "Look, just tell me what happened and everything will be alright," in the hope that the suspect will (mis)interpret that to mean that nothing bad will happen to him as long as he tells you everything you want to know... including self-incriminating statements. You (as a law enforcement officer) are allowed to mislead, misrepresent, lie, trick, fool, cajole, and engage in all other manner of disingenuousness (short of entrapment, of course) in order to get the suspect to incrminate himself -- all while hanging over said suspect's head the potent persuader of the threat of going to jail for simply refusing to do so.

And the reader, here, must remember that self-incrimination needn't be an unambiguous (or even an ambiguous) admission of guilt. Sometimes when law enforcement is interrogating a murder suspect, for example, it will not divulge to said suspect that he's being questioned about a murder and will, instead, ask him about a much less serious crime of which they know he's guilty or was at least either involved in or a witness to, and which may have happened at or near the murder scene. When he admits to whatever they're asking him about the lesser crime, he may not realize that all they wanted to do was place him at the scene of the murder. You guys are allowed to do that -- and worse -- in order to get what you want from the suspect. Even denying the crime -- or whatever the suspect thinks the crime may be -- is risky since the mere act of doing so may reveal, by the way it was worded, or what it was in response to, or for any of a number of other reasons, something to police that helps them identify him as the suspect they're looking for.

Because no suspect can possibly match wits under such pressure and in such cases with police officers who are trained, practiced and skilled in these methods; and who have at their disposal many means of convincing trickery which the suspect could not possibly anticipate and for which he is no match... especially given the pressure he's under at the moment; and because, dammit, it's his consitutional right to do so without there being negative consequences merely because he did, he should, at pretty much all costs, do precisely as Miranda advises and be silent (except, perhaps, as to identity, of course).

To grasp the philosophicals of it, we need to understand that when a defendant pleads "not guilty," s/he is not necessarily saying that s/he's innocent. What s/he's actually saying (to the state) is, "make your case." The average person might infer from this, then, that the founding fathers intended that as long as one's crime is not discovered in the first place or, if discovered, can't be proven as a matter of law, then it's okay to have committed it. And, of course, that's not what the founding fathers had in mind at all. But what they did have in mind was a not-so-distant cousin of that very kind of thinking which says, in effect, that one needn't help the state to discover or to realize or know that s/he committed a crime; or that one was even committed at all... no matter who committed it. Neither does the defandant in court have any obligation to help prove the state's case that s/he did to it (if it even goes that far); or to prove that s/he didn't.

Considering the considerable resources which the state may bring to bear on a typical defendant who couldn't possibly hope to anticipate same -- or to outwit any of it in any case -- just about the only thing he can do is simply shut the hell up and not allow a single utterance to guide the state, one way or the other, either to his innocence or to his guilt; and to, instead, leave to his attorney, who can more easily (and with more authority) navigate the shark-infested waters, whatever explaining needs to be done.

As you've illustrated, Bruce, it's easy for a suspect to piss off a police officer and get himself into more trouble than the police officer believes he would have been if he had just not screwed around and answered the questions. But the suspect must not trust that he will not inadvertently say something to somehow incriminate himself while in the process of explaining. You know as well as I do, Bruce, that if the guy you're saying could have slept in his own bed had he just answered your questions had, while so doing, said anything that suggested his having committed a crime, you would have arrested him. How is he to know where is your failover point? Or you, either, at the outset?

Suspects should realize that it is often their demeanor, more than what they say, that either gets them into, or helps keep them out of, trouble. As with nearly all things in life, there is a way to refuse to answer questions without being disrespectful. Were I being interrogated by a police officer beyond the basic questions of who's who and what did I see and that sorta' stuff; and if I felt I could possibly be seen by him as a suspect, no matter how ridiculous his doing so would be, I would say, even before being Mirandized, that I have no intention of refusing to answer his questions, but that I simply won't begin it without my attorney being present. Period. I will, of course, preface and surround it with all kinds of apologetic language and assurances that I mean no disrespect and that I'd love to get my side of the story out on the table because I know that once I do, he (the police officer) will realize that I've done nothing wrong -- and that I will, in fact, do so -- but just not 'til my lawyer shows-up. And then I would shut up... uttering only a few additional apologies to the officer for not answering his questions, and reminders that I really will help him out if he'll just get me my lawyer... but nothing more. Nothing.

If the police officer still arrested me after that, then, believe me, he was going to anyway.

Amen!

 

Re: Re: Missing word in BSO's Miranda warning allows accused killers to go free

That may be but remember that a Grand Jury hearing is not a trial and trial rules might not apply. And what rules there are vary by State.

As I recall, part of the message of the show was that the prosecutor could, unlike in a trial, ask any potentially incriminating questions he pleased, relevancy be damned. That power gave the prosecutor the power to coerce witnesses(?) into giving him what he wanted to give him a basis for bringing the subject of the hearing to trial.

I hope that was clear. I try to avoid writing essays for posts.

 

Clay

Most states have a domestic battery law allowing police to arrest if:
1.They observe an assault
2.Believe someone is in danger of assault
3.Has been informed by the assaulted party
4.Has had an assault observed by a third party
5.Observes an injury from a possible assault
6.Someone admits to an assault
Bruce could have been investigated if he failed to take action. The jerk placed himself into a position where Bruce asked additional questions, of a third party, justifying the arrest. If he had kept quiet, since both parties denied any assault, Bruce would have left. The law is similar to the seat bealt law, to protect those incapible of protecting themselves and to keep the problem from escalating. It has nothing to do with Maranda, or the 5th Amendment.

 

Same

I tried to edit, but was too late. Nilla Wafer withdrawal. And failing to read what I've written. Miranda. Duh.