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

Wow Des - well said.

I would not be as apologetic as you - perhaps because I was never intimidated by the police. (Having been trained in their modus operandi)

As for Bruce - it is good that you delved deeper. That is what cops are supposed to do and the fact that you got a wife beater off the streets (if perhaps only for a day or two) is always a good thing. Keep up the good work.

On a sad note, there was an officer in SF that was beaten pretty badly with a hammer by a group of anarchists protesting in the city. That sucks big-time - doubly as bad as the scrote has not been caught.

 

I agree with you Bruce. Simple questions about name address and that sort of thing are not incriminating. If you have a warrant be adult about it and go to jail; giving your name will not subject you to arrest, your prior conduct may subject you to arrest.

All people in custody do not have to be Mirandized, only those people who are to be questioned and whose answers you wish to be admissable as evidence against them.

The best warning would be STFU, sit back and wear your seatbelt because the sooner you get to jail the sooner you get out.

Of course that was in my short tenure with my local gendarmerie, a job I just don't have enough patience to do for a career.

 

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

Not "might." "Don't."

What I wrote applies to the invocation of one's 5th Amendment rights at all times and in all places. One doesn't suddenly lose one's constitutional rights just because one walks into a grand jury room. There's no magic there. The constitution and its amendments cover all who occupy U.S. soil, everywhere. That was true even before the Rockford Files episode to which you refer.

Indeed, there are procedural rules that vary from state to state; and there are also Federal grand jury rules which tend to differ from those of most states. I have not researched it, so I will only say that perhaps some aspect of California's grand jury rules may well have changed after the television program to which you refer. But the very specific aspect of the invocation of one's 5th Amendment rights about which we're talking here is universal.

Equally universal, as long as we're at it, is one's right to refuse to answer questions based on other kinds of privilege... like spousal or attorney-client privilege, for example.

It is worthy of note that only about half the states even use grand juries anymore. In those that don't, the prosecutor simply fills-out a probable cause affidavit, gets a judge to sign it, gets a warrant and tells the cops to go pick-up the suspect. Wham, bam, thankyou m'aam. Even in most states that still have grand juries, the prosecutor is allowed to bring charges that way as an alternative to using the grand jury at all. In fact, in most states that still have grand juries, their use by the prosecutor is strictly optional and is usually his second choice; and tends to be reserved for cases which said prosecutor personally finds "iffy" and, therefore, he'd like the grand jury's second opinion, in effect; or for times when the prosecutor isn't sure he has enough probable cause to satisfy a judge when asking for the warrant.

In the Federal system, on the other hand, the 5th Amendment requires that all charges brought against a citizen be brought by means of a grand jury. The simple affidavit method, therefore, isn't an option for a deputy U.S. attorney. In recognition of that limitation, grand juries in the Federal system have been given extraordinary, sweeping, virtually unrestricted investagatory power. A deputy U.S. attorney can get a Federal grand jury subpoena issued for almost anything you can imagine -- even to find out what a suspect in, or a witness to, or even an innocent bystander near a crime had for breakfast on some obscure day sometime in the past. It's uncommon for a Federal grand jury to deny a deputy U.S. attorney whatever s/he requests of it during a grand jury investigation. In fact, the unbelievable powers of a Federal grand jury are nearly completely in the hands of the prosecutor, who is able to guide the grand jury to pretty much any conclusion he wants. There is no check and balance on him; no judge; nothing to force him to introduce to the grand jury any exculpatory evidence; and it is left strictly to him whether the grand jury hears anything in the target's favor that might give it pause in handing down an indictment.

When a witness is dragged-in to a Federal (and, usually, even a state) grand jury room, s/he cannot refuse to answer any questions unless s/he wishes to claim privilege (either spousal; or attorney-client, if s/he's a lawyer; or the privilege of avoiding self-incrimination). And even then -- at least in the case of the self-incrimination privilege -- the prosecutor can grant use immunity to the witness, guaranteeing him that nothing to which he testifies in the grand jury hearing will be used against him in any subsequent criminal proceedings, thereby forcing him to testify anyway. This is where it can start to get very dangerous for the witness if, in fact, he ends-up testifying in a way that, were it not for the immunity, would be self-incriminating. A Federal prosecutor's immunity does not necessary extent to and bind the state, and vice versa. Some acts violate both Federal and state laws; and avoiding prosecution in one by means of the grant of immunity will not necessarily protect the witness from prosecution based on said testimony in the other. There are, of course, strict rules on how -- or even if -- grand jury testimony may be used, so the problem is often moot. But the possibility exists, nevertheless.

Another reason some critics have trouble with grand juries is because they (the critics) try to apply what they know of trial courts to grand juries. Grand juries exist to determine probable cause (and, if found, to return an indictment) and not one single thing more. Not one single thing. Therefore -- and this is one of the sticking points of grand jury critics who maybe don't understand how it all works -- the grand jury needn't even hear all the evidence against its target. Grand juries aren't the place to determine guilt or innocence. Some find this unfair or even think it's unconstitutional. Another unfairness perceived by some Federal grand jury critics is the fact that the witness's lawyer may not accompany him into the room or appear on his behalf as is the case in the trial and appellate court systems. The witness may, however, ask for a moment to leave the room and consult with his attorney who is allowed to wait outside. In some states, the attorney is allowed to be in the room; and in still others, the lawyer is allowed to advise (but not appear for or on behalf of) the witness. Again, many find this unfair or even wrongly believe it's unconstitutional.

Pehaps it is the virtually unlimited and omnipotent power that a Federal prosecutor has in a Federal grand jury that you're thinking of, decimon. That sweeping investigatory power of Federal grand juries has been a bone of contention for the defense bar and those sympathetic for more than 40 years. In fact, it is from the Federal grand jury system that came the old, joking adage, "A prosecutor (in this case referring to a deputy U.S. attorney) can indict a ham sandwich." It's damned near true. The feds are not to be trifled with. It's a scope the crosshairs of which one should pray never align on him/her.

Law enforcement and those on the prosecutorial side of the table often vew a suspect's or a witness's or a defendant's invocation of the 5th Amendment as a tacit indicator of likely guilt. Indeed, many Americans see it that way, too. But, in fact, the invocation of one's 5th Amendment rights is (or at least it should be) no more damning a thing than being charged with a crime. Too many people in this country have a "where there's smoke, there's fire" mentality. One is innocent until proven guilty, and being charged with a crime is not the same as being guilty of it. Simiarly, invoking the 5th Amendment -- especially during grand jury testimony -- should, by no stretch of the imagination, be considered some kind of indicator that the person who did so is guilty of something or has something to hide. Invoking the 5th Amendment -- especially in grand jury hearings -- can be a strategy to avoid being charged with purjury on account of lies told by another witness, but which the jury might happen to believe.

Remember that grand jury testimony is sealed and secret. Witnesses cannot hear one another's testimony. A witness never knows if another witness has lied about him during their testimony; and whether the grand jury believed said other witness. Witness Baker's taking the 5th -- even if what he would have said had been truthful -- precludes his testifying contrary to a lie that witness Able told during his earlier testimony, but which the grand jury happens to believe. Baker's taking the 5th, in that case, had nothing whatsoever to do with whether he had or had not actually committed a crime anywhere; but, rather, was simply to keep anything he said from incriminating him as a perjurer or worse, even through no fault of his own. Some attorneys, in fact, have a nearly blanket policy that no client of theirs ever testifies before a grand jury, no matter what; and that they should always take the 5th in such cases precisely because it it secret and, therefore, blind and, therefore, the risk of something coming out them out of the blue is just too great.

Neither have I. But I know how police officers think. Witness Bruce's own words, here:

• "...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...

It almost doesn't matter what comes next. And that's not a criticism of Bruce. Far from it. I don't know of a police officer who wouldn't have seen it the same way. The guy chose to be an idiot. Cops do a damned dangerous job. A little impatience with idiots is forgivable. And look what it got him. Again, Bruce's words:

• "If he had just answered my questions, and kept his mouth shut, he most likely would have slept in his own bed that night."

I dunno. Maybe, if you're ever in that situation, you should re-think the apologetic thing.

 

Okay, Justice Scalia.

Not true! What if the suspect, having not been Mirandized, utters words which, themselves, are never (and can never be) introduced as evidence against said suspect at trial, but which words subsequently somehow lead investigators to the discovery of something that can, but which never would have been discovered were it not for said words? Would not said discovery, under those circumstances, be the fruit of a poisoned tree?

Indeed. Good advice. Wish I'd thought of it.

 

I guess you know better than I, the assistant state attorney that lectured that class when I was becoming a police officer, and Chief Justice Rehnquist, Justice Scalia and Justice Thomas. (U.S. v Patane).

I'll drop those fellas a note asking them to read your treatise on criminal law.


Like I said, STFU, sit back and wear your seatbelt.

N.B it is 'fruit of the poisonous tree', not poisioned tree. The fruit of the poisonous tree would be tainted; the fruit of the poisoned tree would simply be dead.

 

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

Whether the Fourteenth Amendment extends to the States the proscriptions of the preceding Amendments is a longstanding contention. The fact of States having abolished grand juries, as prescibed in the Fifth Amendment, attests to the non-universality of what you claim.

Military personnel are not covered.

In filing a form 1040 you effectively waive your rights against self-incrimination.

You cannot refuse to identify yourself to LEOs so as to avoid self-incrimination.

 

You're free not to Mirandize the custodial suspect, as you suggested earlier. My earlier "not so" was incomplete, and for that I apologize. What I should have written was, "Not so... that is if you don't want there to be bad consequences for the state if the suspect ends-up uttering something unexpected." Go ahead, don't Mirandize on the small and seemingly inconsequential stuff. Would your supervisor confirm that that's departmental policy?

If you do that, just be prepared to get your ass chewed by a supervisor or the head of the detective bureau or the district attorney after that unexpected, once-in-a-career moment when your prisoner happens to blurt out that he's a serial killer and starts listing where the bodies can be found; and then refuses to repeat, confirm or even deny it subsequent to being hastily Mirandized after-the-fact.

 

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

But we're not talking about any of the other amendments, are we?. And, like most of the amendments, the 5th Amendment has parts. You've heard of the U.S. Supreme Court, right? It says the part about not involuntarily incriminating oneself applies to everyone, no matter what other parts might not. Period.

Ah. A trick question. Nicely played.

You're right. They're not protected by the 5th Amendment from involuntary self-incrimination. For military personnel, Article 31 of the Uniform Code of Military Justice provides that right, thankyouverymuch. (Thought you had me there for a minute, didn't you?) (Check...)

No you don't. When you file a tax form, you're effectively testifying under oath. It's a sworn statement -- a voluntary one -- which documents your voluntary tax payment. It's more along the lines of an affidavit. The 5th Amendment doesn't protect you from getting in trouble for what you do say; it keeps you from getting into trouble for refusing to say anything.

Didn't I cover that in my earlier post? You're not reading carefully enough. I mentioned the recent Supreme Court ruling -- a wrong ruling, incidentally, if you ask me -- which removed a suspect's right to include his mere identity among the things he could say which might incriminate him. I wrote, "...except as to identity..." like two or three times in that posting, did I not? (...and mate.)

 

For Miranda to apply, you need;

1) Custody

2) Interrogation

In the example I posted, the husband was neither in custody, nor being interrogated. He could have just walked away, and while he probably wasn't going too far dressed in boxers & a wife-beater while barefoot, that was his option. He could have suddenly said to me "You know, I killed my mother. Her body is in my storage area", and that would be admissible, since he wasn't in custody, and I wasn't interrogating him.

My point is that if you didn't commit a crime, it's sometimes, no, usually advantageous to cooperate with the police to the best of your ability. The silent routine, or acting out a bad episode of "L.A. Law", is just going to make us suspicious, mad, or both.

 

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

Your egocentricity grows wearying. This is not a game much less chess.

That was not a question and there was no trick and nothing was played.

Yes, I have heard of the Supreme Court. This has been an issue before the Supreme Court. What of it?

No, I didn't think I had you. This is not about you. I pointed to an exception.

Voluntary tax payment? I can volunteer to not pay Federal taxes? I can volunteer to not file a 1040 or equivalent? People have not gone to prison for such voluntarism?

Recent Supreme Court ruling? How recent?

As we said back in the day, I got your mate swingin'.

 

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

Actually, Decimon, there are some things in which you can invoke the 5th on your 1040s. For example, if you're a pimp or a drug-dealer or (during the 1920s) a boot-legger or (maybe in the near future) a cigarette dealer, you could take the 5th on that.

 

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

Possibly so in the 1920s as Federal income taxation was still new and not yet onerous. And a bit later, Al Capone might have welcomed your solace.

 

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

Even today, you can claim the Fifth in the box where the 1040 asks your occupation. This from Natalie Kate Wilkins, JD, Attorney-At-Law, Pierce County Public Defenders Office, Tacoma, WA, Adjunct Professor of Business Law, City University, Tacoma, WA, and my old professor for MC 534: Law for Managers.

 

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

I'll bet you good money that Ms. Wilkins has never done that herself.

 

Re: Re: Re: Re: Re: Re: Re: Re: Missing word in BSO's Miranda warning allows accused

But occupation is not income and income from all sources must be reported.

They got Capone for not reporting income and not for failing to list his occupation. What would have been his occupation? Procurer? Games-of-Chance facilitator? Importer? Saint Valentine aficionado?

 

Clay

I have found several "jailhouse" lawyers among the ranks. None have mentioned res jesti or exigent circumstances. And the fact people can be detained (and handcuffed) without being arrested, while determining whether a crime has been committed , or for the officer's safety.

Perhaps this was discussed in earlier posts, but I fell asleep reading the "jailhouse" trash. People being detained, not arrested, are NOT subject to Miranda warnings unless being personally questioned about a crime. And those that disagree, with the Suprime Court, can follow procedures to appeal. Good luck.

A simple example would be: Officer Donut, pulls a car over for a broken headlight. While writing a warning, Scrote states that his dead wife is in the trunk and he killed her (res jesti). He was not read his Miranda warnings, prior to admitting the crime, but his statements are admissible in court. Since his testimony is not necessary, and his attorney doesn't want him to take the stand, he cannot use the 5th.


Next. Officer Donut responds to a "shots fired" call. Upon arriving at the scene, he observes Scrote behind some bushes. He has Scrote come into the open, frisks him for weapons, handcuffs him, and places him in the rear of his car. ALL LEGAL W/O Miranda.

While ascertaining Scrote's identity, and if a crime has been committed, Scrote states that he just shot a guy, and his body is behind a dumpster, with the gun. All Admissible. Donut was Not required to give Scrote his Miranda warnings, because he was unaware that a crime had been committed, and did not question him about a crime. Miranda came later. Same scenario. Cannot take the 5th, unless he takes the stand.

Until someone is a suspect in a crime ( not a maybe suspect in a maybe crime) they are not subject to Miranda unless the officer is fairly convenced a crime was committed.

Exigent circumstances: Officer Donut is walking by several motel rooms looking for a complainant. As he walks by room 15, with wide open windows, he sees two scrotes attempting to split a bag of a white powdery substance. This motel is a known drug hangout. He kicks the door in and handcuffs the scrotes. No warrant, no Miranda. Legal.

When he ascertains whether the substance is drugs, he Mirandizes the scrotes, and transports them to the slam. If not drugs , he apologizes and leaves. All Legal. If the scrote's attorney allowes them to take the stand, they can use the 5th.

There are very few criminals unaware of police techniques in questioning and procedure. Because a poster is unfamiliar with a topic, means they should ask questions, and not give advice.

Being a prolific writer does not make one knowledgeable. Do your homework, before making unqualified statements.

Bruce used a technique that a less experienced officer may have missed. And he put a scrote in his place. All Legal. And sharp.

 

The Supreme Court has determined (again) that a person has no right of privacy in his identity. The case arose from a charge of "concealing identity", IIRC, and is quite recent. I'll see if I can find it. It isn't really anything new.

You all raise an interesting issue in connection with filing one's income tax forms. As a GENERAL rule, wilful failure to FILE is a crime as is wilful filing of a FALSE return.

However, again as a general rule, failure to PAY is not a crime. I suspect that the reason is exactly what has been said here; filing means giving information under compulsion that could lead to a criminal prosecution for "failure to pay".

I seem to remember, also, that IRS isn't permitted to share your tax return information with any other law enforcement entity.

Miranda is not required unless a subject is "in custody" which may be, but need not be, under arrest. Merely being unfree to leave is enough.

Miranda is not required unless interrogation is going on. Spontaneous statements are admissible.

Miranda affects ONLY the subsequent admissibility of the defendant's statements. No statement, no Miranda analysis.

 

Actually, what you have stated is not entirely correct. First, one must determine the custodial nature and focus of the investigation, which is generally based on the following:

1. The manner in which police summoned the suspect for questioning
2. The purpose, place and manner of the interrogation
3. The extent to which the suspect is confronted with evidence of guilt (the extent to which the subject is focus of the investigation)
4. If the suspect is free to leave and is informed that they may do so.

Absent of custody or custodial interrogation, the suspect is free to say or volunteer what they may, which can be used as evidence. Miranda warnings are not required for non-custodial questioning. However, once the focus of an interview shifts from obtaining information (non-custodial questioning) to that of specifically collecting incriminating evidence from the suspect (interrogation) and or custody, then Miranda must be given.

Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Accordingly, if a suspect is taken into custody and transported in the back seat of a patrol car, and while doing so, begins to utter incriminating statement to the transport officers without initiation or intent of the transporting officer, then the evidence remains admissible.

Additionally, in other instances such as public safety (like asking a suspect where they threw a gun), Miranda is not required.

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.

Tom

 

Darn... I stopped in the middle of typing my previous post to have a snack and several of you already responded to DesElms. Sorry for the seemingly redundant response.

Tom

 

Miranda Warnings

In the real world, dealing with prosecutors, defense lawyers, judges, law enforcement supervisors, etc., failure to Mirandize an arrestee will bring the arresting officers nothing but trouble.

Mdoneil pointed out that not everyone in custody has to be Mirandized as long as their statements aren't going to be used against them. Clay referred to "jailhouse lawyers" among the "ranks" (posters, I assume) and implied that their comments were somewhat ill-informed. Yet he then proceeded to cite res jesti exceptions as a way around Miranda in certain situations, as though that is an appropriate guideline for law enforcement to operate under.

Well, that may be true but ... the arresting officers, by not reading the Miranda Warnings, may face the following: a) internal inquiry for violating dept/agency policy and procedure b) a suppression hearing in the officers actions will be questioned by the defense before a judge (no jury) Try telling the court about the "res jesti" exception and see what happens c) a civil suit filed on behalf of the defendant (BTW if you're a Fed it is known as a "Bivens" action) d) go to a jury trial and try to convince the jury that you didn't violate the defendant's civil rights. (Juries frequently disregard judges' instructions and bring in their own biases often based upon what they have seen on television.) e) a remote but possible Federal trial for violating Civil Rights (Won't that will look great on your resume if you manage to beat it?)

At best, the officer will be put through a stressful series of legal proceedings in which he spents plenty of time and money but prevails. At worst, the officer loses his job, his savings and maybe his freedom. And there is just one guarantee in this whole thing -the assistant state prosecutor to which mdoneil refers to as telling police recruits that Miranda isn't always necessary won't be anywhere in sight.

Most law enforcement officers aren't going to take a chance and will Mirandize EVERYONE in a custodial situation. There are too many other landmines out there for law enforcement officers and the possible costs heavily outweigh the benefits of not Mirandizing.