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

Some of the best lawyers I have known were jail house lawyers. When you have years to do nothing except study the law, then you become pretty good. Never assume that because someone is a convict that they are stupid - although some are, a great number are not. Some are very intelligent, cunning (cunning linquist?? lol), and can make a lot of DA's look like school boys in the courtroom.

Clay: Are you an attorney? If not, then you have no business questioning others opinions. Perhaps you are better informed, but perhaps not. I wouldn't make that type of statement or assumption unless you were sure.

 

Re: Miranda Warnings

Actually, that's not true. I don't read Miranda to about 90% of the people I arrest, simply because I don't ask them any questions after they're in custody. When you catch someone standing over a dead body with a smoking pistol, you don't need to ask many questions.

If they insist on talking, then I'll read them Miranda, but in the great majority of arrest situations, it's unnecessary.

 

Clay

Mr. Engineer,
My response was to some e-mailers that don't post, but read the forum. It was not directed at anyone on the forum. Rather than e-mail and watch the forum at the same time, which I don't know how to do, I just posted my reply on the forum. And I do think I have some experience with the matter. I had an almost 100% conviction rate, in court. The ones I lost, died before they went to court. All the others took a plea bargain, which is mostly what happens. Or they flipped someone bigger.

Do you scream Miranda, to a train station full of people, because a body has been found? Common sense dictates when it should be used. I would Mirandized arrestees, and suspects, when they had been identified as suspects, depending on the circumstances. If you Mirandize everyone, no one will tell what happened, because they think they are suspects. Come on folks, use a little reality. This isn't TV. Cops don't have ESP.

I am talking about exactly what Bruce is saying. He gave an excellent example. Also, Res jesti is not a way around the law, it is the law. And unless you are going to question someone, Tell them to STFU!

My reference to jail-house lawyers, is the punk on the street who says he doesn't have to give his name, or refuses to get out of a stopped car, or any number of situations police deal with daily.

I'll bet on an experienced prosecutor against a jail-house lawyer anytime. The JHL may be able to prolong appeals, or make requests that drag the process along. But if they are so good, why are they still in jail?

 

Clay

Mr. Engineer,
I thought this forum enabled people to question opinions. I'll just watch and STFU. There are so many experienced folks here, my 2 cents is useless.

 

Re: Clay

A Crim Law professor of mine claimed to have represented some of the least lucky clients in history. Example: Client snorting lines of cocaine on coffee table, minding his own business. Front door suddenly busted open, druggie practically wets himself, guy he's never seen in his life goes running through living room, into kitchen, and out back door. Few seconds later uniformed officer runs through opened front door after perp, as he zooms by, he eyes lines of coke, screeches to a halt, decides that the drug crime he's now viewed is more interesting to him than whatever crime the guy he was chasing committed, cuffs hapless coke snorter and away he goes. No pass go, no $200.

Exigent circumstances strikes again; it's as bad as Monty Python's "Spanish Inquisition"!

 

Re: Re: Miranda Warnings

Different locations, different SOPs.

Concerning the actual Miranda warnings, in Philadelphia and most of the near suburbs, merely reading Miranda Warnings doesn't suffice. The arrestee is requested to sign a Miranda form that they understand their rights and a second part in which they waive their right to counsel and agree to answer questions without a lawyer present. As far as a consent search of a house or apartment, forget it. They have to sign a consent to search form that is like a blank check ... and very few people agree to it.

If you have anything approaching PC, it is easier to write up an affidavit and application for a search warrant.

 

Re: Clay

No one implied that you should STFU. On the contrary, I have found your opinons to be informative and valuable. I was just stating that you were slaming others based on your opinions.

I always subscribed the to pretense that opinions are just that - opinions - not really statements of fact but your perceptions of fact.

Keep on posting Clay!

 

Re: Re: Re: Miranda Warnings

I don't get that involved anymore, my job is strictly hit & run. When I was on the Drug Unit, we used signed waivers, and also videotaped interviews when possible.

Agreed.

 

Same

Mr. Engineer,
I base my opinions on 30+ years experience. Working Federal, State, and Local LE. Also being Director of Advanced and Specialized Training. Qualified expert witness in Federal and State Courts in narcotics, police procedures, deadly force. This and $2.50 will buy me a cup of some yuppie coffee. Please allow me my folly, and enjoy the opions of EXPERTS. I'll just watch and STFU. Reality differs from perception.
Bruce has been a member much longer, and sums things up quite well.






I.Q. 154-162 (depending upon the test), Waist-32, Inseam-32.
can run all day, 100 push-ups(60 sec.), 100 sit-ups(60 sec.), FBI certified Master and Instructor of Weapons and Chemical Agents, SWAT Tactics. Ambidextrous and computer illiterate. Now you can build my compound, complete with moat and gators. And lose an inch in your waist, so I can get rid of some clothes.

 

Clay

Also cannot type worth a ####. My obviously obvious opinion.






Have a good day.

 

Same

Mr, Engineer,
The only people I "slammed" were some jerks that e-mailed me. People take themselves too seriously. Time is short, people are important one day, forgotten the next. Enjoy the journey in extenso.

 

Well you have my deepest apologies Clay. From the looks of it, you do know what you are talking about.

Cheers
Walt

BTW: Congrats on the situps - I used to be able to do 300 but now my fat ass can barely do 25. My waist size hasn't been as small as yours for 15 years now.

 

Same

Walt,
If your waist is 33 in. your ass ain't fat. And, if you could do 300 sit-ups in 60 sec., you kicked mine over the goalpost. I figure at 57, I'm about maxed-out. Need attractive bimbos to enhance performance. The smart ones want to discuss vortices, monopoles and instanons. I burn-out at diagramatic proof of gauge invariance. Duh...

 

Same

Gregg,
I appreciate your varied interests and comments. Don't think I was replying to you. I'll e-mail you if we disagree on something.
I usually ask questions.
And if anyone's ego was brused, I apologize. Curmudgeons are usually given some latitude. So, am I on probation, pendente lite?Or am I raptus regaliter? Spero nos familiares mansuros.

 

Part 1 of 5

I need to start actually using the emails that come to me from this place telling me that more posts have been made to a thread in which I've made posts. I rely too much on the little yellow icon thingies to the left of thread subjects to tell me which ones have fresh posts. I didn't visit this one again 'til a couple or three days ago, and didn't find the time to properly reply 'til now. Sorry for getting behind... and for the fact that, because of that, this post is so long. But I gotta' lot to say. Just scroll past it if you don't want to read it.

What occasions this kind of back-handed remark? Where, either in this thread, or any other, have I ever attacked you thusly?

Oh, really? Then where'd your "[a]s we said back in the day, I got your mate swingin'" remark come from, Mr. Hypcrite?

Which wasn't really an exception at all, was it? Article 31 is nothing more than the military version of the protections provided to the non-military by the Fifth Amendment. It's a disinction without a difference. Sorry I presumed ulterior motives on your part for proffering it; and the apparent inaccuracy of my reasonable assumption that you already knew the answer. I can't imagine where I'd ever get the silly notion that you'd ever pull a stunt like that.

I refer to paying taxes as "voluntary" all the time... as a form of sarcasm. The reason is because of the IRS's unmitigated effrontery in printing, right there in the Internal Revenue Service's official instructions for filling out Form 1040, that the tax system is "voluntary." Of course, in that very document the IRS explains that the word "voluntary" refers to "our system of allowing taxpayers to determine the correct amount of tax and complete the appropriate returns, rather than have the government determine tax for them. In other words, to the IRS, "voluntary" means "not a gunpoint."

Sorry I didn't somehow convey the intended sarcasm. My bad.

How's June 21, 2004... at this writing, a mere 13 months ago? Recent enough?

Hmm. I'm having a little trouble with your use of the word "again," here; and, yes, the case is quite recent (by Supreme Court standards); and it wasn't so so much about "concealing" identity as much as it was about simple refusal to divulge it when asked... which, I suppose may also be a distinction without a difference. The case is Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al. (PDF).

In May of 2000, Larry Dudley Hiibel was standing, smoking a cigarette, next to his 1988 GMC pickup truck which was legally parked on the side of the road near Winnemucca, NV. He told the Associated Press that he was minding his own business when Humboldt County Sheriff's Deputy Lee Dove, in Hiibel's words, "just walked up and started demanding my papers." Of course, there was a bit more to it than that (however, when boiled down to its barest essential facts and concomitant legal issues, not much more).

Minutes before, Dove had been dispatched to that location on a 911 call from someone who had reported seeing a fight between a man and a woman inside a truck. Driving the truck was Hiibel's 17-year-old daughter, Mimi; and, in fact, Hiibel and Mimi had been arguing... about a boy she was seeing whom Hiibel didn't like. At one point witnesses saw Mimi hit her father in the shoulder as she drove, thereby triggering the domestic violence 911 call. Hiibel had demanded that Mimi stop the truck so he could get out. When police arrived, he was on the passenger's side with his elbow resting on the bottom of the passenger door's window opening, with the window rolled down. He was smoking a cigarette and talking (not yelling) across the passenger seat to his daughter who was sitting behind the wheel.

Dove approached Hiibel peacefully and non-threateningly enough; and Hiibel showed no indication that he believed he had done anything wrong and/or that the officer intended anything more than to maybe tell him he needed to not be stopped there and needed to move on (although it may be argued that that wasn't reasonable given that Dove had arrived with lights and siren). Instead, Dove announced to Hiibel that he had gotten a report that there had been fighting between the two of them, about which Hiibel replied that he knew nothing. Dove also declared that he was "investigating" a time or two during the incident (though not at first). Dove then asked Hiibel for his identification. Hiibel did not resist violently: and he did not attempt to flee, or be abusive, or be smart-mouthed, or arrogant, or confrontational or anything else that typically triggers a police officer's ire; but he (Hiibel) did refuse to provide his identification or to otherwise identify himself in any way.

Eleven times Dove repeated his identification request. He asked no questions of either Hiibel or Mimi about the alleged domestic violence that he claimed was there to investigate. Hiibel simply repeated that he had done nothing; that the truck was not, to the best of his knowledge, illegally parked; and he asked of Dove to know why he (Dove) wanted to see his identification. Other remarks that Hiibel either made or tried to make during the incident (as can be heard on the video tap from dash-mounted camera in Dove's patrol car) clearly showed that he simply felt it was none of the officer's business because he had done nothing wrong, and that he understood it to be his right to refuse to answer any questions, even those regarding his identity. He was asserting/protecting his Fourth and Fifth Amendment rights by saying "no," as civil libertarians have told us, and as previous Supreme Court rulings have advised us, we must do in order for us to avail ourselves of those rights.

Finally, having asked nothing more of Hiibel than that he identify himself (by producing ID or merely stating his name), Dove said, "So then you're not gonna' cooperate with me at all? Ok, turn around and put your hands on your back. Spread your feet."

Hiibel was charged with Domestic Battery, Battery, Acts Which Constitute Domestic Violence, and Obstructing/Delaying A Peace Officer. Worthy of note is that he was not charged with resisting arrest. In fact, it was Mimi who, because of her protests of her father's arrest, was hauled-off to juvenile detention and charged with resisting. When the judge asked what the charge was for which Mimi was being arrested at the time that she allegedly resisted said arrest, there was none, so she was released. When the judge asked to hear the evidence in support of Hiibel's battery and domestic violence charges, there was none... so Hiibel would have been released execpt that the "obstructing/delaying a peace officer" charge could not so easily be dismissed. In fact, he was convicted of that charge and fined $250. Hiibel's only act which could possibly have obstructed or delayed the officer was, simply, his refusal to identify himself. His supporters cried that he had been criminalized for exercising his right to remain silent.

Hiibel's conviction, the state believed, was permissable under what some have come to call Nevada's "stop and identify" law (NRS 171.123) which says that police may detain anyone "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime" [NRS 171.123(1)], and that "any person so detained shall identify himself, but may not be compelled to answer any other inquiry" [NRS 171.123(3)]. Since NRS 171.123 was codified, the Nevada Supreme Court has had occasion to clarify it such that no violation of the statute occurs even if the suspect only states his name or otherwise communicates it by virtually any other means; and that the statute does not require that said suspect produce a driver's license or any other form of identification.

Fewer than 20 other states even have "stop and identify" laws; and most that do have no criminal penalties for breaking them. However, that does not mean that police officers in the rest of the states -- all states, in fact -- do not have the right to make "stop and identify" dententions and questioning of suspicious people, with or without actual "stop and identify" laws being on the state's books. What have come to be known as "Terry stops" by police officers have been the law of the land ever since Terry v. Ohio, 392 U.S. 1. in 1968. Laws like Nevada's NRS 171.123 in the 20 or so states that have them are merely attempts to codify at the state level what Terry already provides; and, in Nevada's case, the purpose was to, additionally, criminalize it.

Continued in my next post...

 

Part 2 of 5

...continued from my previous post.

Hiibel appealed his conviction on grounds that his Fourth and Fifth Amendment rights were violated. The state appellate court rejected that argument, and the Nevada Supreme Court affirmed. Hiibel then petitioned the U.S. Supreme Court, which agreed to hear it in March of 2004 and subsequently ruled against Hiibel the following June, holding that the "[p]etitioner's conviction does not violate his Fourth Amendment rights or the Fifth Amendment's prohibition on self-incrimination."

I beg to differ. Hiibel v. Sixth Judicial District Court of Nevada is most definitely something new, and it effectively weakens in frightening and not-insignificant ways Constitutional protections afforded us by the Fourth and Fifth Amendments, as clarified by Miranda v. Arizona, 384 U.S. 436; and even by Terry v. Ohio, 392 U.S. 1.

Miranda v. Arizona, 384 U.S. 436, 467 was, is, and remains the law of this land, to wit:

• "...there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." (Emphasis added by DesElms.)

Though "stop and identify" laws vary from state to state among the 20 or so that have them, they are all, nevertheless, based on Terry v. Ohio, 392 U.S. 1, and they all permit an officer, therefore, to ask or require a suspect to disclose his identity (see, for example, United States v. Hensley, 469 U.S. 221, 229). However, as stated in the Hiibel ruling, "...it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer (Brown v. Texas, 443 U.S. 47, 53). And, in fact, no case since Terry in 1968 -- not one single one -- has successfully chipped-away in the least at Justice White's words in his concurring opinion in Terry v. Ohio:

• "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation."

As we have witnessed in this very thread, it is a common misconception that suspects in Terry stops and other similar situations where only reasonable suspicion (or less) is present are required to identify themselves just because cases like United States v. Hensley and/or INS v. Delgado, 466 U. S. 210, 216, among others, have reaffirmed -- and firmly so -- a police officer's right to ask them to so do. However, as Justice Stevens wrote in his dissent of Hiibel, "...it is a 'settled principle' that 'the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,' but 'they have no right to compel them to answer.' (Davis v. Mississipi, 394 U. S. 721, 727, n. 6). (Emphasis added by DesElms)

An officer's right to ask, therefore, must not be confused with a suspect's right -- and, in fact, his duty if he expects not to be considered to have waived said right -- to refuse to answer; to just say "no." Those hearing about Hiibel may be so confused and may, therefore, incorrectly assume that it just reaffirms what already is; same ol', same ol'. But, in fact, Hiibel breaks considerable new ground by determining that it begins where other cases which left open the question of whether a suspect may be compelled to identify himself under certain circumstances left off; that "the Nevada statute is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual's interests against the promotion of legitimate government interests" (Delaware v. Prouse, 440 U.S. 648, 654); that "...the Fifth Amendment does not override the Nevada Legislature's judgment [that Hiibel did not have a right to refuse to disclose his identity] absent a reasonable belief that the disclosure would tend to incriminate him," and that "[a]nswering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances" (see, for example, Baltimore City Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 555).

Hiibel affirms Nevada's attempt to criminalize a suspect's doing precisely what Miranda and Terry and all cases since which serve to refine and affirm them tell us we can do: Stand mute... even as to identity. Even the Hiibel ruling recognizes that there may be overriding Fifth Amendment concerns which may permit a suspect to remain silent "...where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense," and it acknowledges that when that is the case, "the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow."

It is not surprising, then, that Hiibel believed -- obviously wrongly, it now appears -- that he was within his rights to refuse to identify himself; and that the state had no right to criminalize him for so doing. Even jurists a whole lot smarter than Hiibel thought so. From Justice Stevens's dissent to Hiibel:

• In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment's guarantee that "[n]o person ... shall be compelled in any criminal case to be a witness against himself" is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.
  
  [...]
  
  The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government's investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. So does an arrested suspect during custodial interrogation in a police station.
  
  There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment's protections apply with equal force in the context of Terry stops.
  
  The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a "difficult question" (Doe v. United States, 487 U.S. 201, 214-215), we have stated generally that "it is the 'extortion of information from the accused,' the attempt to force him 'to disclose the contents of his own mind,' that implicates the Self-Incrimination Clause," (id., at 211). While "[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege" (id., at 213-214), certain acts and physical evidence fall outside the privilege. In all instances, we have afforded Fifth Amendment protection if the disclosure in question was being admitted because of its content rather than some other aspect of the communication.
  
  Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment's Confrontation Clause, "[w]hatever else the term ['testimonial'] covers, it applies at a minimum ... to police interrogations." (Crawford v. Washington, 541 U.S. ___, ___ (2004) (slip op., at 33)). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.
  
  But our cases have afforded Fifth Amendment protection to statements that are "incriminating" in a much broader sense than the Court suggests. ... Thus, "[c]ompelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory." (Hubbell, 530 U. S., at 38 (citing Doe, 487 U. S., at 208, n. 6)).
  
  Given a proper understanding of the category of "incriminating" communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner's identity is protected. The Court reasons that we should not assume that the disclosure of petitioner's name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances "reasonably indicate that the person has committed, is committing or is about to commit a crime"? ... I think that ... the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.

Continued in my next post...

 

Part 3 of 5

...continued from my previous post.

• A person's identity obviously bears informational and incriminating worth, "even if the [name] itself is not inculpatory" (Hubbell, 530 U.S., at 38). A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence "only in unusual circumstances."
  
  The officer in this case told petitioner, in the Court's words, that "he was conducting an investigation and needed to see some identification." As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute.

Justices Breyer, Souter and Ginsberg, in their dissent of Hiibel, were more direct in their assertion that the Court's Fourth Amendment precedents that circumscribe the limits within which police may conduct a Terry stop flat-out invalidates any law (such as Nevada's, for example) which compels any kind of response by a suspect to any police questioning. Period. They cited the long history of Court decisions since 1968's Terry v. Ohio -- including, and to some degree, especially the very ruling cited by the majority in support of its position (i.e., Berkemer v. McCarty, 468 U.S. 420) -- provide a "strong dicta that the legal community typically takes as a statement of the law"... "law has remained undisturbed for more than 20 years." They wrote:

• There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer "What's your name?" also require an answer to "What's your license number?" or "Where do you live?" Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances. (Emphasis added by DesElms)
  
  Indeed, as the majority points out, a name itself -- even if it is not "Killer Bill" or "Rough 'em up Harry" -- will sometimes provide the police with "a link in the chain of evidence needed to convict the individual of a separate offense." The majority reserves judgment about whether compulsion is permissible in such instances. How then is a police officer in the midst of a Terry stop to distinguish between the majority's ordinary case and this special case where the majority reserves judgment? (Emphasis added by DesElms)
  
  The majority presents no evidence that the rule enunciated by Justice White ... which for nearly a generation has set forth a settled Terry-stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. [We] would not begin to erode a clear rule with special exceptions.

It was short-sighted and lazy of me to have earlier replied to decimon's "[y]ou cannot refuse to identify yourself to [law enforcement officers] so as to avoid self-incrimination" by simply pointing-out that I had covered it in an earlier response. In fact, decimon, precisely as he worded it, was incorrect. Even prior to Hiibel it was well-established that -- and, if not, then it was at least unclear whether -- a suspect could legally stand mute, even as to identity, in the face of police questioning when only "reasonable suspicion," pursuant to Terry, was present; and even Hiibel refuses to settle the matter in all cases and, in fact, acknowledges that a court may, indeed, consider a suspect's refusal to identify himself as within his Fifth Amendment rights "where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense." In my earlier "I thought I covered that" reply, I was short-cutting; acknowledging that, as a practical matter, remaining silent as to identity was no longer an option because, as a practical matter, it pretty much no longer is... and that's because of the recent Hiibel ruling; and failing to explain the circumstances under which it still could be (as I've now done... and then some).

Apparently not. Do you believe that Deputy Dove would have permitted Hiibel (or even his daughter, Mimi) to just walk away? The "res jesti" and "exegent circumstances" mindset of this nation's law-and-order-no-matter-what-the-cost types has managed to blur even the definition of "custodial." One's commonsense ability to recognize the very telltale indicators of one's involuntary detention in a no more nor less sophisticated manner as would any animal snared in a trap, or trapped in an enclosed space, or held in the grip of another creature -- including even being handcuffed while searched or questioned, but not necessarily arrested, "for the officer's protection and safety" -- have been, insensibly, discounted as couched in language surrounding such legal theories as "reasonable suspicion" in the absence of "probable cause." These are sophisticated legal arguments upon which even those appointed to the highest court of this land -- the final arbiters, in any case -- cannot agree. To expect police officers, much less suspects, to be able to make hair-splitting legal analysis and concomitant decisions in the heat of the moment with respect to if and/or when one may be compelled to answer police questions is unreasonable.

The beauty of Miranda is, in part, that it simplifies the matter for all parties; and errs to the benefit of the suspect whose rights, generally, tend to outweigh the state's interests, by allowing the suspect to dispense with such on-the-spot and sophisticated-beyond-most-suspects'-ability-to-perform analysis by simply standing mute if he so desires. The meaning of the words "[y]ou have the right to remain silent" and "anything you say can and will be used against you in a court of law" is self-evident. "Silent" means silent. Mute. Noiseless. Period. Neither the language of Miranda, nor the form of the rights reading that it prescribes, in any way qualifies said silence, or limits it to only that which may tend to incriminate. The Fifth Amendment itself may actually impose that limitation, but the unambiguous intent of Miranda was for that to be a matter to be dealt with later, when the heat of the moment has subsided. Furthermore, Miranda or Mirandizing a suspect refers, merely, to the requirement of officers to do the form reading. It does not, by its having been done, suddenly convey to the suspect any rights which s/he did not already have prior to its reading. Miranda merely reminds the suspect of his safest response to a confusing and high-pressure situation in which his very liberty hangs in the balance, and in which a mere utterance could cook his goose in ways he cannot even begin contemplate and, likely in many cases, would not understand even if it were explained to him. If some of the postings in this thread are any indicator, much the same can be said of some police officers.

Hiibel did not overturn Miranda. In fact, it barely even mentioned it. Instead, Hiibel focused, in largest measure, on Terry... and even Terry didn't overturn Miranda. Nothing, thus far, has overturned Miranda... not even legislative attempts to weaken it by narrowing the circumstances and conditions under which it is applicable (see, for example, Dickerson v. United States, 530 U.S. 428).

What Hiibel has done, however, is serious, indeed. It creates the very law-and-order-at-all-costs, homeland-security-mentality sort of legal "Catch-22" that is precisely Nevada (and other states') legislators had in mind, and which they knew would inure to the state's benefit one way or another: A suspect detained in only a "reasonable suspicion" situation that falls far short of "probable cause" may not remain silent as to identity without risking arrest unless he reveals his reason why; and revealing his reason why risks either providing probable cause or, worse, triggering his arrest. Nicely played.

Continued in my next post...

 

Part 4 of 5

...continued from my previous post.

That doesn't mean that the suspect couldn't go ahead and stand mute, be arrested, let the matter play itself out in the courts, and then ultimately win at least on the silence-as-to-identity issue. Any person is -- and always has been -- free to respond to any facially unconstitutional potential-arrest situation in that way. However, as Timothy Lynch, who prepared and submitted an amicus brief siding with the petitioner in the Hiibel case points out in this article, that -- and any manner of other responses -- is a kind of risky rolling of the dice that can create for one a criminal record where none before existed, and could cost one one's liberty in any case.

I have a high degree of frustration with the responses here which seemed to presume I was saying that Miranda was a requirement at times and under circumstances which the courts have held that it clearly is not. I know the difference, and I believe I clarified that in an earlier post. My overarching point was, and remains, that an officer's not reading a suspect his Miranda rights -- no matter what the circumstances -- can be risky business... and precisely because of the sophisticated legal analysis that both officer and suspect must perform in the heat of the moment to which I herein have referred (an already bad situation now exacerbated, in my opinion, by the Hiibel ruling). In that sense, my point was/is not dissimilar to -- though for reasons different, on several points, from -- the underlying point made in Tom H.'s earlier post as to the wisdom of not Mirandizing given the highness of the stakes and the severity of the consequences if something goes wrong.

I could be wrong, but I suspect there is not a (police) detective on the planet who would not disagree with that. Nor do I believe there is a defense attorney on the planet who would not be more happy that you see it that way.

Good. A little late, maybe... but better late than never, I suppose. My point is -- and not because the courts require it but, rather, simply because it's good and safe police procedural policy which ultimately benefits both the state and the suspect -- you should probably do it before you have very much interaction with the suspect beyond the really basic basics, regardless of the custodial or the interrogational status. That's just being overly safe, I realize... but I'm just sayin'.

Well, then, I can't even begin to adequately convey, here, how disappointed I am to read this. And that's not a civil-libertarianesque criticism of your style or any kind of fault finding on my part, as I suspect that you suspect. On the contrary, it's merely my expression of concern for someone whom I genuinely like and would not like to see unintentionally commit a potentially-career-ending procedural blunder in a high-profile case where there ends-up being a huge public outcry for a conviction; and where there is a particularly gifted defense attorney who is successfully beating-up the prosecutor by trying to suppress all statements made by the defendant on account of a Miranda problem; and where cop top brass and prosecutors sometimes have a nasty way of circling back and reaming uniforms because they didn't Mirandize sooner (or at all). One never knows where an arrest can lead. It's such a simple and short form reading; it takes almost no time at all to do; and it can make all the difference in the world. Even tesch conceded, "As a matter of department policy or by preference of the prosecutor, officers may often give Miranda, even without a legal requirement do so, just to be on the safe side. We see this happening more and more often."

All that said, Clay makes the excellent point:

Hard to argue with that.

Undeniably true. That said, you're defense council on a serial murder case. Your client, the defendant, was originally arrested for a minor assault which the arresting officer happened to observe. Handcuffed and taken into custody, your client was not Mirandized at the time he was taken into custody, or in the transport vehicle on the way to the police station.

Upon arrival at the police station the arresting officer handcuffed the suspect to a bench and sat him down upon it; then sat down himself at a nearby desk to fill-out a couple of forms before taking the suspect on to booking.

During this time the suspect asks the arresting officer, "Hey. Don't I have some kinda' rights you're supposed to read to me or somethin'?"

"I don't need to," the officer responds. "I saw you hit the guy with my own eyes. I don't need your confession. There's nothin' you could say that could make it worse for you."

After a brief, silent pause, the officer adds: "Why? Is there some other crime you've committed that I should know about?"

Afer a pause, the suspect says, simply, "Well..."

"Well... what?" the officer asks.

"Well..." the suspect repeats. "I dunno..." and then he just shrugs and looks at the floor.

"Yeah, I thought so," replies the officer looking back at his form, continuing, "but you just keep thinkin' about it, and if you decide you wanna' confess to anything, you just let me know."

"Stupid, f_cking scrote," the officer thinks to himself as he writes and shakes his head a little.

Continued in my next post...

 

Part 5 of 5

...continued from my previous post.

Forty minutes later the suspect is in booking, still accompanied by the arresting officer. As the suspect finishes-up getting his digital pictures taken and moves to the other counter where he will be fingerprinted, he utters, "Well, there's those six women I killed last year. I could tell you where I buried 'em if ya' want me to."

"Yeah, right," the arresting officer responds in disbelief. Winking at the booking technician, the officer says to the suspect, "While this guy's printing you, why don't you just go ahead and tell us all about it."

The suspect then begins to casually recount the events while the technician fingerprints him. As the suspect describes the details of the first two murders and the locations of the bodies, the incredulous grin begins to slide off the arresting officer's face and his brow begins to furrow. He begins to realize that the suspect isn't kidding, and be starts to take notes. He knows he hasn't Mirandized the suspect, but he considers his words to be a spontaneous utterance and he wants to let the suspect give as much information as he can without actually being asked anything by anyone. Even the booking technician is able to attest that the suspect just up and blurted it out without being asked anything by anyone after he entered the booking room.

Once the suspect's fingerprints are done, and once he stops talking and appears to be pretty much done with whatever he has to say without some questions to prompt him along further, he is taken into an interrogation room where a detective is called in. The suspect is then Mirandized and the detective, having been brought up to speed by the arresting officer, begins to interrogate. However, reminded by the Miranda warning of his right to remain silent and to have a lawyer present; and suddenly feeling the seriousness of the situation based on the police's intensity of interest in what he has said thus far, the suspect suddenly changes his tune.

"Um... well...," he says to the detective, "after what you just read me, I think I screwed-up with what I've said already. I'd better shut up."

There's a pause, after which he adds: "And I want a lawyer."

The detective points out to the suspect that he can lawyer-up if he wants to, but that if he (the suspect) has any hope of not getting a needle stuck in his arm he'd be much better off helping the officers understand why he did it, and showing some remorse, so the judge might have some sympathy on him.

"Talk to me," the detective pleads, "I can help you if you talk to me. If you lawyer-up, I won't be able to help you anymore."

"No," the suspect has the presence of mind to wisely say, adding, "Now that I understand my rights, I'm done. And I want a lawyer. Now."

The interrogation stops and the suspect is processed into the jail.

Both the arresting officer and the booking technician sign affidavits attesting to what the suspect said and how he said it. Their statements are bolstered by the video tape in the booking room, on which everything done and said can be clearly seen and heard. There's also the video tape of the suspect being Mirandized in the interrogation room.

With this information, and the apparent fact that the confession, though custodial, was nevertheless spontaneous and, therefore, admissable even absent a Miranda warning, the suspect is held on suspicion of first degree murder. Detectives then go to the two locations where the suspect said the bodies would be found and they find, in fact, all but one of the six women the suspect claims to have killed and buried. There is also other evidence there which jives with things the suspect said during his alleged spontaneous confession, which included certain things that only the real murderer could possibly have known. The charges are then amended to five counts of serial murder in the first degree, with special circumstances. The prosecutor succeeds in getting the magistrate to deny bail; and he indicates to the court that he intends to seek the death penalty.

The case finally comes to you, defense counsel, and you have your first meeting with your client, the suspect. As you look over the arrest report you shake your head in desbelief and, without looking up from the paper at your client, you sigh and mutter, "God, I wish you hadn't just blurted out all that stuff. What were you thinking? No one even asked you anything."

Your client cocks his head to one side and this time it is his brow that furrows.

"What are you talking about?" the suspect asks you, continuing, "yes he did."

"Yes, he did... what?" you ask.

"Yes he did ask me a question," the suspect replies a little sarcastically.

"What?" you ask, excitedly... "When? Where? What question?"

"In that room where they first bring you in and handcuff you to the bench," the suspect replies, continuing, "right after they brought me to the station."

"And what question were you asked... and who asked it?" you ask.

"Well... uh... lemmee think," the suspect replies. "Umm... let's see... he was filling-out some kinda' form and makin' me wait."

"Who was?" you interrupt.

"The cop who arrested me," the suspect replies, continuing, "Then, after a while, I asked him didn't I have some kinda' rights or somethin' that he was supposed to read me. He said he didn't need to 'cause he seen me with his own eyes hittin' on the guy and that he didn't need my confession to arrest me and get me convicted."

"Okay... so... then where's the question he asked you?" you impatiently prod.

"Uh... oh, yeah...," the suspect continues, "well... see, then he says, 'Why? Is there anything else you've done that I should be askin' you about?' or... wait... no... he says 'Why? Is there some other crime you've committed that I should be arrestin' you for?' or somethin' like that."

There's brief, stunned silence as you try to get your mind wrapped around what your client has just told you, and then he finishes up, with a shrug: "So I thought about it a while and decided to answer his question. What... did I screw up?"

Through discovery, you eventually get a copy of videotape footage not only from the booking and interrogation rooms, but also from the holding area where the benches are; and, sure enough, there's the exchange between your client and the officer, just as your client described.

So, there it is. Is it a spontaneous utterance; or is it a response to a custodial, intoerrogational question? How long is the question allowed to hang in the air... especially when the suspect had a clear and unambiguous believe that it was, indeed, still hanging there? And even if precedent says that the question was too general; or that it wasn't interrogational for Miranda purposes because the officer didn't know a crime (other than that for which the suspect was in custody) had been committed; or that if there even was an interrogational moment in the holding room, said interrogation was over; or even if an argument can be made that he must have known his rights or he wouldn't have asked them to be read to him, it would border on malpractice, would it not, for you not to try to make the arguments anyway? You'd argue, wouldn't you, that it was both custodial and interrogational; that the suspect considered the question to still be hanging out there and that his utterance was clearly a response thereto; that neither the question nor the response was too broad, non-specific or general; that the officer's knowledge of a crime having been committed was not required; that the suspect's question about his rights asked in the holding area did not indicated that he knew what they were, but only that he thought he had some and wondered why the officer hadn't read them to him like he thought he'd seen on TV and that, in fact, his declaration in the interrogation room that once he understood his rights he was going to exercize them and both shut up and ask for an attorney, thereby suggesting that if he had known those to be his rights back in the holding room he might not have said anything in the booking room; that, in fact, the whole thing had a stink on it and might even be the unholy product of unwritten departmental policy ala Missouri v. Seibert, 93 S.W. 3d 700; and that, therefore, both the confession and every single bit of evidence, including the bodies themselves, were inadmissable.

And for the officers here who keep saying it's okay to not Mirandize pretty much unless there's an obvious and compelling reason, even if he ultimately prevails in court, just picture the deputy prosecutor sitting in his officer late at night preparing to make sophisticated Miranda arguments before a judge the next morning instead of sitting in the audience with his wife watching his kid's school play.

"Dammit!" mutters the prosecutor to himself, shaking his head in disgust as he sits back in his chair and takes a moment to stretch and look at his watch, "it would have killed this cop to take a lousy 20 seconds to repeat to this murdering sonofabitch the measly 50 or 60 words of his Miranda warning at the time he cuffed him? Stupid f_cking scrote!"

 

Wow!!!

I am speechless ... nothing further should be added and this thread should be closed to new posts.

DesElms' logic is unassailable and a sharp rebuke to those who support (or simply fail to oppose) the continued erosion of our civil liberties. It doesn't really matter if our civil liberties are limited as part of "the war on terror" or in response to supposed judicial excess since WW II.