-
-
-
-
-
-
-
You often hear about a criminal escaping
prosecution through a "technicality."  If you think
it's bad today, you should have started your police
career when I did in 1971.  In those years, courts
were hypercritical about every technicality you could
imagine.  Miranda was no less controversial and
interpretive.  Every judge had his or her view on
Miranda, and the only consensus among judges
always seemed to be their conclusion that police
officers frequently failed to get it right.

It's not so bad today; although, you'll always have
to pay close attention to those ever present
"technicalities."  When it comes to Miranda, your
department will provide you with a rights' waiver
form to assist you in advising, and most
importantly -- documenting -- a criminal suspect's
voluntary waiver of his or her right to remain silent.  
The form can be quite extensive to include
questions regarding the suspect's level of education
completed.  The suspect will be required to initial
each question indicating his or her understanding of
the question.  The suspect will then indicate the
waiver of rights, or he or she will invoke the right to
remain silent and sign the form.  Somewhere on the
form will be the question, "Can you read and
write?"  You should always have the suspect read
aloud a number of the questions sufficient to
ensure that the suspect can, in fact, read and
comprehend the questions.  You should then
document that "reading and comprehension" test in
your reporting.
Res Gestae

During you academy training you're going to hear
about res gestae... spontaneous and excited
utterances.  Here's an easy example where a
spontaneous utterance by a criminal suspect would
be admissible as evidence; even though, no Miranda
Warning has been given to the suspect:

You receive a call for a robbery.  You arrive at the
scene where you're met by a woman who tells you
she was just beaten and robbed.  Your questioning
reveals the woman was about to enter her car when
the suspect grabbed her purse.  The woman
struggled with the suspect in her attempt to retain
her purse.  The suspect then punched the victim in
the face causing her to let go of the purse.  The
suspect then escaped with the victim's purse.

The victim provides a good physical and clothing
description of the suspect, and she assures you
she can identify the suspect if she sees him again.  
It's only been about ten minutes since the crime
occurred, and you put the victim into your car to
conduct a search for the suspect.  You begin your
search in the direction of the suspect's flight.  After
about ten minutes into your search, you're
approximately six blocks from where the robbery
occurred when your victim shouts, "There...over
there...that's him!  That's the man who robbed
me."  She's pointing toward three men standing in
front of a liquor store.  From the physical
description the victim gave you previously, you
quickly identify the suspect.

You tell the victim to slide down in the backseat as
you park your car a few car lengths away from the
three men.  You then get out of your car and
casually approach the front of the store.  The
suspect immediately notices you, and you can sense
his nervous anticipation.  However, you don't look
directly at him, so he delays his escape until it's too
late.  As you grab onto to him, the other two men
take off, and the suspect begins the usual
protestations, "Hey, man.  What's gone on, I didn't
do nothing."  You're arresting the suspect based on
the positive identification of the victim.  Even
though the crime was not committed in your
presence, the crime of robbery is a felony, and the
victim's identification is sufficient probable cause for
you to arrest the suspect.

As you're handcuffing the suspect, the victim
emerges from the back seat and stands next to
your car.  Your suspect looks at the victim and
states, "Oh, no, man.  This is wrong.  I didn't take
that woman's purse."  Would you say that this
suspect just made an incriminating statement?  Of
course, he did.  You didn't say anything to the
suspect, and you're six blocks from where the crime
occurred.  How would the suspect know the
woman's purse had been taken if he didn't take the
purse.  Now would be a good time for you to
verbally give the suspect his Miranda Warning.  The
warning won't shut up this idiot, but it will look
good in your reporting.

Person of Interest

I love this one.  I think the term "person of interest"
started following the Richard Jewel debacle and
really got going during the infamous Scott Peterson
murder investigation.  Since then, the term has
earned its place in the dictionary of political
correctness.  Look...a suspect is a suspect, and a
person of interest is a suspect.  When it comes to
the proper application of the Miranda Warning, that
person of interest stuff won't cut any ice with a
judge when you try to justify admissibility of
evidence derived from accusatory questioning of a
person of interest without a Miranda Warning.  
Since suspects can fall under any number of
degrees of suspicion, someone came up with the
person of interest thing.  You hear it now used
regularly to fend off the press in high profile
investigations.
"The truth about Miranda is that it has very
little, if any, effect on a suspect's willingness
to talk to you about the alleged offense."
~ Barry M. Baker
Miranda
Warning
"You have the right to remain silent. Anything
you say can and will be used against you in a
court of law. You have the right to an attorney. If
you cannot afford an attorney, one will be
provided for you."
There's more to the Miranda Warning than those
three sentences listed above.  In 1966, the
Supreme Court decided Miranda v. Arizona;
wherein, the Court imposed what it termed
"preventative safeguards" to ensure an individual's
5th Amendment right against self incrimination.  
The Court provided guidelines from which those
three sentences emerged.
That rights' form will always be a part of any case
folder even if the interrogation of a suspect is done
on audio or video tape.  As a patrol officer, it's not
likely that audio or video taping will be part of your
interrogations.  Detectives routinely audio or video
tape; however, those interrogations occur under a
structured routine.  For instance, audio tapes have
their own problems. First, audio tapes must be
transcribed at some point...no small task.  If the
interrogator is not experienced, the person
transcribing can develop a real headache trying to
make sense of any conversation that is not relevant
to the interrogation.  Inexperienced interrogators
have the problem of stopping the audio tape --
intermission -- to clarify issues.  Prosecutors hate
these "stop and start" interrogations, because
defense attorneys can logically speculate toward
improper manipulation of the interrogation.

As video technology becomes more commonplace,
your department may provide the facilities for any
police officer to conduct his or her interrogation of a
suspect on videotape.  While a videotaped
interrogation can clearly remove any doubt
regarding a suspect's voluntary wavier of his or her
right to remain silent, you should realize that a
videotape can communicate so much more.  For
instance, some members of a jury may view your
personality or manner as intimidating; therefore,
they develop doubt about the suspect's voluntary
waiver of rights.  I'm not saying that would
happen.  I am saying that if twelve people view a
videotaped interrogation, there will be twelve
different interpretations of the interrogation.  Your
job is to keep any videotaped interrogation as
neutral and on point as possible.

When you become a police officer, you'll find that
criminal suspects fall into two categories...those
who will talk, and those who won't.  The truth
about Miranda is that it has very little, if any, effect
on a suspect's willingness to talk to you about the
alleged offense.  It's rare that a suspect will be
truthful.  Suspects will attempt to deceive you in
their efforts to talk themselves out of trouble, but
-- hey -- that's what interrogations are all about.  
So...when you give suspects their Miranda Warning,
make certain the warning is thorough and well
documented.

When you watch the television cops arrest people,
the handcuffs aren't even on before the officer
begins, "You have the right to remain silent.  
Anything you say...."  While that's okay, it's not
necessary to give any suspect the Miranda Warning;
until, you decide to ask the suspect a question
relevant to the crime committed.  In fact, a verbal
advice of rights isn't all that strong in establishing
your compliance with Miranda.  That's why you'll
have the means to document your compliance.

Get Your Degree!

Find schools and get information on the program that’s right for you.

Powered by Campus Explorer

Copyright © 2018  Barry M. Baker  
CareerPoliceOfficer.com
-