Homeland Security can’t use Miranda warning


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rick_reno
August 6, 2005, 10:25 AM
It's good to know that DHS is after these terrorists.

http://www.msnbc.msn.com/id/8843001/

Homeland Security can’t use Miranda warning
Ruling in alleged coke smugglers’ case may have impact on terror suspects

Updated: 11:46 p.m. ET Aug. 5, 2005
MIAMI - A federal judge ruled unconstitutional a Miranda rights warning that Homeland Security agents used to interrogate drug-smuggling suspects, prompting the agency to make sure a legally sufficient warning is used nationwide.

U.S. Magistrate Judge Lurana Snow ruled that statements made by four men accused of smuggling cocaine aboard a cruise ship could not be introduced in court because the Miranda warning failed to spell out that they could have an attorney present during — not just before — interrogation by authorities.

"From a legal standpoint, the warnings on the Homeland Security form are ambiguous, at best," Snow said in her 16-page decision.

The ruling in Fort Lauderdale was issued July 26 but not made public until Friday by Miami defense attorney Ellis Rubin, who brought successful challenges to similar flaws in police Miranda warnings in Broward County.

Ruling could affect terrorist suspects
Rubin said the ruling could jeopardize statements given to interrogators in numerous other cases, including those involving suspected terrorists, illegal aliens and other drug smugglers.

"I think there's going to be a lot more," Rubin said. "Somebody has to tell these people, 'Hey, wise up.'"

The Miranda warning comes from the 1966 decision requiring police to warn suspects they have the right to remain silent and to have an attorney present when answering questions.

In a statement issued Friday in Washington, the Immigration and Customs Enforcement arm of Homeland Security said that the Miranda warning its agents used in Miami differed from the one that had been approved.

The statement said that after the ruling, Immigration and Customs Enforcement "took immediate action to ensure that every single field office in the country is using the proper Miranda form in both English and Spanish."

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Graystar
August 6, 2005, 10:40 AM
We have GOT to get rid of that damn Miranda warning!

The Miranda ruling has been the cause of many innocent people going to jail because their coerced confessions were upheld simply because the accused had been read his rights. On the flip side, many victims’ rights have been violated when confessed perpetrators are let go because there was some problem with reading the Miranda rights, as with the smugglers.

The Miranda warning is like the NYC searches...can’t possibly do what it was intended to do.

The Fifth Amendment protection that Miranda is supposed to address is against compelled testimony. The very definition of a compelled testimony is testimony that is given against a person’s will. What good is it to know that you have the right to remain silent when you’re being coerced into confessing?

What the Supreme Court unwittingly did was to place the burden of the protection of our right against compelled testimony upon the shoulders of the accused. That’s not where it should be. The burden of protecting our rights is on the government.

The Supreme Court essentially invalidated the concept of compelled testimony. Now, all testimony given after the reading of Miranda rights is considered voluntary, whether or not false promises were made or a gun was held to your head. Apparently, you’re suppose to allow yourself to be killed before confessing.

Any other act where a person is physically or psychologically forced to do something against his will is considered a crime. If the accused make a claim that his confession was coerced, it should be investigated as a criminal act. That’s not what happens today. In today’s court such a claim is simply given a summary judgment based on whether Miranda warnings were given properly. This has got to change.

Harve Curry
August 6, 2005, 11:15 AM
Maybe they should have the Bill of Rights posted in the police cars, interview rooms, and jail cells , highlight the 5th Amendment, where ALL can read it and do it in English.

Art Eatman
August 6, 2005, 11:29 AM
Greystar, I can't at all follow your argument.

The Miranda warning advises one of one's rights. That's all one is owed by the establishment: Being informed of one's rights. After that, the status of the accused is that of any adult at any time, responsible for his behavior.

"Anything you say can and will be used against you in a court of law." It seems to me that that sentence oughta be more than enough to put a zipper on your mouth and keep it there, even if an attorney isn't present. The government itsownself is telling you to STFU. What more do you want? :D

Art

Pilgrim
August 6, 2005, 11:39 AM
The Supreme Court essentially invalidated the concept of compelled testimony. Now, all testimony given after the reading of Miranda rights is considered voluntary, whether or not false promises were made or a gun was held to your head. Apparently, you’re suppose to allow yourself to be killed before confessing.
Even if the Miranda admonishment is given, the confession has to be truly voluntary. If the accused invokes Miranda by choosing to be silent or requests his attorney, and police continue to hound the accused through continued interrogation, threats, promises of leniency, etc., then any confession derived from such tactics is considered to be coerced.

What you are suggesting is all the police have to do is read the Miranda admonishment, then they are free to beat the accused with a rubber hose until he confesses.

Pilgrim

Car Knocker
August 6, 2005, 11:53 AM
the Miranda warning its agents used in Miami differed from the one that had been approved.

You'all seem to be missing the real issue. The HS people in Florida were using some bastardized version of Miranda that didn't conform to the official boilerplate version that has been tested and approved in court after court. They were winging it and got caught. The BG's are going to get off because HS was stupid! Nothing more, nothing less.

Graystar
August 6, 2005, 12:21 PM
It seems to me that that sentence oughta be more than enough to put a zipper on your mouth and keep it there, even if an attorney isn't present. The government itsownself is telling you to STFU. What more do you want?You are totally disregarding the meaning of “compelled.” The very definition of a compelled testimony is testimony that is given against a person’s will. What good is it knowing that you don’t have to confess when you’re being forced to? The primary problem is people that believe that any testimony given after reading your rights has to be voluntary because you were read your rights. There is ample evidence that this is not the case. Police continue to use psychological pressure to get people to admit to things they didn’t do.

Don’t you read the papers? There have been 160 people freed from jail because they were wrongly convicted, and two executions are now under investigation. Innocents is no guarantee that you’re not going to jail. When you’re sittin’ wrongly accused of murder, and the cops are telling you they’ve got two witnesses that have positively identified you and that you’re going to jail for the rest of your life, and your lawyer is advising you to cut a deal...what do you do???

Graystar
August 6, 2005, 12:29 PM
What you are suggesting is all the police have to do is read the Miranda admonishment, then they are free to beat the accused with a rubber hose until he confesses.What do you mean "suggesting"?? It's happening!! This is the primary problem.

As you said, the confession has to be truly voluntary. However, with Miranda the determination of whether a confession is voluntary has changed. Before Miranda it was based on the circumstances of the confession. Miranda was basically tortured for a week before confessing. After Miranda the determination is based solely on whether the accused was read his rights.

The state is supposed to protect our rights...including the right of the accused to not be compelled to testify. However, that’s not what happens anymore. After the accused is Mirandized, it’s open season on him until he asked for his lawyer. When his lawyer shows up, it’s open season again.

Graystar
August 6, 2005, 12:37 PM
You'all seem to be missing the real issue. The HS people in Florida were using some bastardized version of Miranda that didn't conform to the official boilerplate version that has been tested and approved in court after court.That's the issue of the Florida case. The broader, more serious issue is that government is shirking its job of protecting the rights of the accused and leaving the accused to fend for himself.

To believe that reading a person his rights is enough to protect those rights, is to ignore the history of compelled testimony.

Pilgrim
August 6, 2005, 04:30 PM
As you said, the confession has to be truly voluntary. However, with Miranda the determination of whether a confession is voluntary has changed. Before Miranda it was based on the circumstances of the confession. Miranda was basically tortured for a week before confessing. After Miranda the determination is based solely on whether the accused was read his rights.
Nope. SCOTUS has ruled that once the accused has invoked his right to silence and/or an attorney, the police can't continue the interrogation. If the police continue to interrogate they may very well lose everything they gain as a result of that interrogation. See Edwards vs Arizona (1981), Minnick v. Mississippi (1991), Arizona v. Roberson (1988).

In Oregon v. Bradshaw (1983), SCOTUS found a knowing waiver of Miranda occurs when the police make no threats, promises, or inducements to talk; and the defendant was properly advised of his rights and understood them.

Pilgrim

Art Eatman
August 6, 2005, 04:47 PM
From Graystar: "Police continue to use psychological pressure to get people to admit to things they didn’t do."

Built into your statement is the idea that the suspect didn't call for a lawyer. SFAIK, lawyers don't allow this psychological pressuring of a client.

I doubt that the police are looking for that confession unless they believe the suspect is guilty. The courts have held that psychological pressure, including lying to the suspect, is legal. And if the police believe the suspect is indeed guilty, isn't it their job to seek a confession?

Where does one's personal responsibility to oneself end?

We're told that we're unending sets of "TV Generations". Cop shows all over TV keep showing guys being read their Miranda rights. It's pretty hard NOT to know something about the whole deal, even if you're a tad into the shallow end of the gene pool.

I'm less concerned about the investigating folks than I am about the prosecutorial types who ignore exculpatory evidence.

Art

Graystar
August 6, 2005, 11:55 PM
Nope. SCOTUS has ruled that once the accused has invoked his right to silence and/or an attorney, the police can't continue the interrogation. Yeah...and criminals will register their guns.

The teenagers of the Central Park Jogger case in NY were read their rights and they had asked for lawyers. The cops told each of them individually that he would be free to leave if he would “give up” his friends. Each (except for one) did just that. The collection of accusations, with each accuser blaming all others except himself, was submitted as a form of group confession. They were all convicted upon the strength of those accusations/confessions, even thought they were tricked into making those statements after they had asked for lawyers, and even though several recanted at trial.

Just as easily as requesting a lawyer, the accused can rescind his request and decide to talk to police. Why would he do that? Psychological pressure. For example, he could be told that if he rescinds his request for a lawyer and talk to them, they will be able to “work things out.” But once he talks to a lawyer all bets are off and they would have no choice but to prosecute him to the fullest extent of the law (that catchy phrase that we’ve all heard on TV.) The story is crap, but may sway someone whose has read about the number of innocent people that have been jailed.
In Oregon v. Bradshaw (1983), SCOTUS found a knowing waiver of Miranda occurs when the police make no threats, promises, or inducements to talk; and the defendant was properly advised of his rights and understood them.Once again, this is EXACTLY the kind of abuse I’m talking about. You, and the court, believe that simply understanding your right to enough to protect those rights. You both are absolutely wrong.

First of all, there is no right to remain silent in the Fifth Amendment. The right specified is the right to not be compelled to be a witness against oneself in a criminal case. This right is NOT fully explained in the Miranda warning. The right that you have is in essence, freedom from compulsion, and it is the *police* that needs to fully understand this right...not the accused because it is the police that applies compulsive pressure upon the accused.

Pilgrim
August 7, 2005, 12:04 AM
First of all, there is no right to remain silent in the Fifth Amendment. The right specified is the right to not be compelled to be a witness against oneself in a criminal case. This right is NOT fully explained in the Miranda warning. The right that you have is in essence, freedom from compulsion, and it is the *police* that needs to fully understand this right...not the accused because it is the police that applies compulsive pressure upon the accused.
I see that you have a great future in law school. Please let the members of THR know when you pass the bar exam.

Pilgrim

Graystar
August 7, 2005, 12:09 AM
Built into your statement is the idea that the suspect didn't call for a lawyer. SFAIK, lawyers don't allow this psychological pressuring of a client.In my response to Pilgrim I tell how the teens in the Central Park Jogger case were coerced into making statement even after they asked for lawyers.

I doubt that the police are looking for that confession unless they believe the suspect is guilty.That statement makes no sense. By definition, the police think that a suspect is guilty...because they *suspect* him.

Where does one's personal responsibility to oneself end?Again, you’re making the same exact misunderstanding that everyone else is making. For some reason, which has absolutely no basis in history or science, you believe that simply knowing that you have the right to remain silent will prevent you from being compelled to speak. You are wrong (and in the cases of at least two people, dead wrong.)

You may think now that nothing can make you say you did it when you didn’t, but when you’re sitting in a cage with a prosecutor telling you he’s got two credible witnesses that say you stabbed the clerk dead, and your lawyer is advising that you take the 6 years in prison ‘cause you’ll probably end up losing and going to jail for life...I will bet anything that you won’t be quite so resolute.

Art Eatman
August 7, 2005, 12:48 AM
"I will bet anything that you won’t be quite so resolute."

That's a guaranteed loss.

:), Art

Pilgrim
August 7, 2005, 01:23 AM
In my response to Pilgrim I tell how the teens in the Central Park Jogger case were coerced into making statement even after they asked for lawyers.

Greystar,

Let me let you in on a little secret. When I arrested someone, I didn't care if they confessed or not. I had already collected enough evidence and information to develop the probable cause for the arrest. I was convinced the district attorney would see it my way and prosecute the defendant. For the most part the district attorney did file and prosecute.

It was not worth risking my career, my reputation, and my freedom to threaten, coerce, or beat a prisoner to get a confession.

Pilgrim

Graystar
August 7, 2005, 05:51 AM
It was not worth risking my career, my reputation, and my freedom to threaten, coerce, or beat a prisoner to get a confession.Not in the Central Park Jogger case, nor in any other case I've heard of where an innocent person was jailed from a coerced confession, have the people involved lost their job, so the chances of being fired appears to be very low.

Graystar
August 7, 2005, 06:00 AM
That's a guaranteed loss.Well, let's hope we never find out.

Coronach
August 7, 2005, 07:18 AM
Absurdity.

If the confession was, in fact, coerced, any competent attorney will be able to have it suppressed, regardless of the reading of Miranda. I'm not saying that it is not possible to cover up actual coercion, but assertions like these of systematic abuses are meaningless without hard facts to back them up. Can you prove that in limited instances cops have coerced suspects? Absolutely. That's many steps removed from calling it a systematic problem. I can provide limited instances of gun owners committing murder- please turn in your guns now. See where I'm going with this?

As Pilgrim said, the vast majority of cops like their job and their house too much to risk it to obtain the conviction of someone they barely know for the crime of doing something to someone they do not know at all.

Mike

Byron Quick
August 7, 2005, 07:19 AM
You may think now that nothing can make you say you did it when you didn’t, but when you’re sitting in a cage with a prosecutor telling you he’s got two credible witnesses that say you stabbed the clerk dead, and your lawyer is advising that you take the 6 years in prison ‘cause you’ll probably end up losing and going to jail for life...I will bet anything that you won’t be quite so resolute.

Graystar, I know Art personally. Tell you what, I'll take your bet on anytime that he's charged with anything. You've agreed to bet anything...my call?

Oh, yeah, I've been there and done that with the prosecutor stating they have eyewitnesses. I told them that their eyewitnesses were hallucinating. After being presented with my eyewitnesses that had me elsewhere and who were much cleaner personally than the prosecution's witnesses and being presented with the identity of the true perpetrator who looks just like me from across the street, the prosecution caved. A large part of successfully defending yourself involves the gumption to tell the prosecution to go urinate up a rope.

Graystar
August 7, 2005, 07:49 AM
A large part of successfully defending yourself involves the gumption to tell the prosecution to go urinate up a rope.From your description it sounds like an even larger part of defending yourself was proving you were innocent.

Graystar
August 7, 2005, 07:51 AM
If the confession was, in fact, coerced, any competent attorney will be able to have it suppressedOn what basis are you making this statement? Is there some historical evidence to support this?

Destructo6
August 7, 2005, 01:08 PM
you believe that simply knowing that you have the right to remain silent will prevent you from being compelled to speak.
So what's the alternative? Do you compel suspects to remain silent?

DMF
August 7, 2005, 02:25 PM
However, with Miranda the determination of whether a confession is voluntary has changed. Before Miranda it was based on the circumstances of the confession. Miranda was basically tortured for a week before confessing. After Miranda the determination is based solely on whether the accused was read his rights.Not true in the least. Merely reading Miranda does not guarantee a confession will be considered voluntary. This has been hashed out MANY times in the courts, and every time the circumstances are considered.

As part of the response to your quote above and your question to Coronach:On what basis are you making this statement? Is there some historical evidence to support this?I suggest you read the Supreme Court decisions in Minnick v. Mississippi (1990), Smith v. Illinois (1984), Michigan v. Moseley (1975). Those are just three of the big cases (obviously since they were ulitmately decided at the Supreme Court of the US), however confessions are often challenged in the lower courts, and the circumstances beyond the mere reading of the Miranda warnings are considered. There is about 4 decades of court decisions considering the suppression of confessions, and all consider the circumstances beyond the mere reading of the warnings, and confessions have been suppressed when it is has been determined they were not voluntary.

Graystar
August 7, 2005, 04:11 PM
So what's the alternative? Do you compel suspects to remain silent?The idea is that you don't compel at all.

Graystar
August 7, 2005, 04:28 PM
I suggest you read the Supreme Court decisions in Minnick v. Mississippi (1990), Smith v. Illinois (1984), Michigan v. Moseley (1975). These three cases are perfect examples of how backwards the Miranda logic is.

First, some people here believe that if someone speaks after they’ve been read their rights then it’s their own fault for confessing to a crime they didn’t commit. Yet, to agree with these three decisions, is to support the idea that a person cannot be held responsible for statements made after the reading of his rights and he asks for a lawyer, even if the statements are completely voluntary. So which is it? Are you responsible for your own words or aren’t you??

In none of these three cases was there ever a claim of compelled testimony. The only claim made was of erroneous procedure. And this supports what I said earlier. The truth of whether the accused spoke voluntarily or under compulsion doesn’t matter anymore. The only thing that matters is the police procedure. Those three convictions should have been upheld because the statements were made without improper influences placed upon the accused (well, none that we know of because no claim as such was ever made.)

GRB
August 7, 2005, 04:30 PM
You'all seem to be missing the real issue. The HS people in Florida were using some bastardized version of Miranda that didn't conform to the official boilerplate version that has been tested and approved in court after court. Sorry but I have to say this before I rtant: the following is my personal opinion (safety thing because of my employment):

Yes you got it right, this was the point of the article and of the court ruling. I know because I work for DHS. My guess is that the rights that were read to the defendants were, as you call them, a bastardized version of the rights and: I think the version was probably based upon rights forms that had been formerly used by the now defunct Immigration and Naturalization Service. You see they were done away with by an act of Congress subsequent to 9/11 and subsequent to the formation of DHS. Then I&NS inspectors were lumped together with Customs Inspectors and some others to form Customs and Border protection. The special agents (criminal investigators) from I&NS and from US Customs among others were then lumped together to form the Bureau of Immigration and Customs Enforcement, later dropping the word Bureau because it offended the FBI, now known in short as ICE. These were the guys who messed up and my guess is they used to be employed by the I&NS where they made few criminal arrests but lots of administrative arrests wherein a different rights form was used!

Note though that one defendant was not released. This was the defendant who was read his rights from a legacy Customs rights form! Customs agents made virtually only criminal arrests. The difference between an admin rights form and a criminal rights form could be the problem, but maybe it was something else like bureaucratic BS. You see there has been a lot of uneasiness when several agencies were combined to form larger agencies under one mega department (DHS). Now everyone, from each agency has to compete for dominance, they have to lift their legs to leave their scent. So they try to keep some of this, get rid of some of that, and combine or change things to make them better even though they were not broken to begin with. The sad part is, in MY PERSONAL OPINION, little to absolutely common sense or logic is being used by the bureaucrats who do so. Therefore they take what was an already perfectly legally sound right form and changed it into something that was not so perfectly legal, or maybe investigators who mainly made administrative arrests used an administrative arrest rights card (yes that would have been, in my estimation, someone who had been in the I&NS most likely) and now this may screw over a lot of cases. It is a crying shame but that is, in my opinion, how screwed up things can become. You would not believe some of thethings that have happened in how we perform investigations from day but I am not at liberty to discuss them here.

All the best,
GB

DMF
August 7, 2005, 08:14 PM
Yet, to agree with these three decisions, is to support the idea that a person cannot be held responsible for statements made after the reading of his rights and he asks for a lawyer, even if the statements are completely voluntary.Are you kidding me? Do you even understand the purpose of reading someone there rights? The whole point is merely reading the rights does not remove the protections of the 5th and 6th Amendments. Even if the rights are read, the cops must actually honor those rights. Which is exactly what you were complaining about earlier.Now, all testimony given after the reading of Miranda rights is considered voluntary, whether or not false promises were made or a gun was held to your head. Apparently, you’re suppose to allow yourself to be killed before confessing.Those case show that not only does someone not have to allow themselves to be killed, but the cops merely ignoring a request for an attorney, or continuing questioning despite a suspect's initial refusal to talk, is enough to suppress a confession. Obviously you have some gripe with Miranda, but first you say it allows torture to get a confession, then I show that is not true through three key cases which clearly show ignoring the 5th and 6th Amendment rights is not tolerated despite reading of rights, then you say that proves YOUR point. You are seriously cracked on this topic.

Graystar
August 7, 2005, 09:32 PM
Even if the rights are read, the cops must actually honor those rights.Then why read the accused his rights at all? I mean, if the cops aren't going to violate them...protect them in fact...why does the accused need to worry about them?

then I show that is not true through three key cases which clearly show ignoring the 5th and 6th Amendment rights is not tolerated despite reading of rightsYoiu showed me three cases that had nothing to do with a claim of a compelled testimony. Please tell me, how could those cases support ANY position on compelled testimony??

Chris Rhines
August 7, 2005, 10:22 PM
One suggestion that strikes me as a good idea - never, ever admit that you understand your rights. When the cop asks if you understand your rights, you answer, "No." No further explanation or amplification - just, "No."

- Chris

Destructo6
August 8, 2005, 12:00 AM
The idea is that you don't compel at all.
That's the way it is right now. They are advised of their rights and the subjects are perfectly free to follow or discard that advise as they so choose.

DMF
August 8, 2005, 12:11 AM
Then why read the accused his rights at all? :banghead: :banghead: Again, are you kidding me? Have you even read the Miranda decision (or any of the other relevant case law since), which clearly explains why the rights are read to the suspect, and the proper procedures to follow if they invoke their rights, or waive their rights? You lack even a basic understanding of this subject. Go read up on it and get back to us.

Graystar
August 8, 2005, 10:45 AM
That's the way it is right now. They are advised of their rights and the subjects are perfectly free to follow or discard that advise as they so choose.Once again, the same misunderstanding is made. You've just nullified the concept of compelled testimony, and you’ve place the burden of protecting the right against compelled testimony upon the shoulders of the accused. That’s not where that burden should be. The government has the burden of protecting our rights. That burden should never be handed off just because some words on a card were read to someone.

Doesn’t anyone understand what the word “compel” means? Compelled testimony is testimony that is given, when it otherwise would not have been, due to improper influences that engender hope or fear in the mind of the accused.

The Central Park Jogger case is a textbook example of compelled testimony. Each teen was told that he could go home if he just made a statement implicating the others, thereby engendering hope in the mind of the accused. This is clearly compelled testimony, but the cops had precedent for this activity...in STEIN v. NEW YORK, 346 U.S. 156 (1953) the Supreme Court gave the go-ahead to do so.

Graystar
August 8, 2005, 10:53 AM
You lack even a basic understanding of this subject.I understand that a compelled testimony is testimony given despite the desire not to. But that seems to be something that YOU don’t understand.

I can’t seem to be able to explain it so I guess we’ll just have to agree to disagree.

SAW753
August 8, 2005, 11:21 AM
Once you are read your right and you have understood those right you have to act on them. It is not just good enough to ask for your lawyer you THEN have to keep your mouth shut until he/she gets to you. The police are free to talk to you while you wait. They are also free to ask you any question that does not relate directly to the issue at hand. Pease note that this is from my person experecise and I live in a small hick town. As long as you keep your mouth shut and ask for your lawyer then you will be fine. As for the point about protecting your right. Right their it is they are YOUR rights you have to protect them. It is YOUR personal responsiblity to excersice your right but you have to excersice all of them. You have to have the Personal Courage and or Disaplain to keep your mouth shut AFTER asking for your lawyer becuase anything that you are saying provided you are not being physical threatened or abused and as long as you are not placed under UNDO phcyological stress (I can't spell) is still considered volunteery. I think that the real issue here is not if the Miranda warning is a good idea or not becuase most of us agree that it is. But the maing issue is that HS needs to get all its ducks in a row or in this case reading from the right script so that the BG don't get away again.

F4GIB
August 8, 2005, 11:58 AM
You'all seem to be missing the real issue. The HS people in Florida were using some bastardized version of Miranda that didn't conform to the official boilerplate version that has been tested and approved in court after court. They were winging it and got caught. The BG's are going to get off because HS was stupid! Nothing more, nothing less.

The FBI rights card isn't copywritten (and Kinkos is everywhere).

But HS just had to come up with their own. Did they do it from a single agent's memory or did they form a committee and use their joint memory? Stupid is what stupid does!

Pilgrim
August 8, 2005, 01:23 PM
But HS just had to come up with their own. Did they do it from a single agent's memory or did they form a committee and use their joint memory? Stupid is what stupid does!
Miranda admonitions evolve and grow in complexity depending on the department's history with Miranda, and the 'contributions' of the department's legal counsel or the chief prosecuting attorney.

It stands to reason if an officer testifies he 'read' to the defendant the Miranda admonition, that officer had better be able to produce in court the card or document he read the Miranda admonition from.

Pilgrim

F4GIB
August 8, 2005, 05:40 PM
I still have my 1970's "right card" in my desk drawer. The Miranda warnings I gave as a federal prosecutor in 1970-1974 are exactly the same as those I'd give today. The right to counsel has always been DURING the interrogation.

You would think the federal government would have one Miranda policy and one "rights card" just like it has one deadly force policy (see: http://www.usdoj.gov/ag/readingroom/resolution14a.htm). The same Constitutional restrictions apply to every non-military federal agency (including, as this case shows, HS). Why risk the inevitable stupidity of some bureaucrat in some isolated agency?

DMF
August 8, 2005, 09:51 PM
. . . just like it has one deadly force policy . . . No there is not just one deadly force policy. Agencies are free to make policies which are MORE restrictive than Constitution (or more specifically the Supreme Court applied in TN v. Garner, and Graham v. Conner). In fact many agency policies are more restrictive than the law allows.

Also, people seem to think the "boilerplate" language is the only thing that is acceptable, but that is not true either. See California v. Prysock (1981), and Rhode Island v. Innes (1980), for the Supreme Court's rulings on whether the rights advisement must conform to the exact wording of the Miranda decision.

GRB
August 8, 2005, 10:09 PM
Once again, the same misunderstanding is made. You've just nullified the concept of compelled testimony, and you’ve place the burden of protecting the right against compelled testimony upon the shoulders of the accused. That’s not where that burden should be. The government has the burden of protecting our rights. That burden should never be handed off just because some words on a card were read to someone.While police cannot compell you to answer questions or make statements during criminal custody situations, you certainly HAVE THE RIGHT TO SAY WHATEVER YOU CHOOSE TO SAY EVEN IF IT IS A CONFESSION and that was not something you were compelled by anyone to do. It is YOUR CHOICE whether or not you want to make statements - that is your right - the police just have to advise you of it - not make your decision for you. I tend to think you lack a certain level of responsibility for your own actions if you cannot comprehend this - otherwise you are just trying to be a major pain in everyones butts because you make little to absolutely no sense at all. It seems you just want to argue incessantly (which is ok by me) without any understanding (which is the pnot ok because this is a pain in the butt). You also seemingly do not understand the meaning of the word compelled, the meaning of a right, your ability to waive your rights, or Miranda. I must echo someone else's suggestion, read up on some of the law. Then chime in again.

Best regards,
GlennB

Graystar
August 8, 2005, 11:10 PM
You also seemingly do not understand the meaning of the word compelledAre you saying that my definition of compelled testimony is wrong? I understand what compelled testimony is. It is you that doesn't understand what it means.

I'll just leave you with the definition of compelled testimony, as understood by the Supreme Court, and used in the Miranda ruling.

BRAM v. U S, 168 U.S. 532 (1897)
Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary has arisen from a misconception of the subject to which the proof must address itself. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that, from causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influences he would have remained silent.

Coronach
August 9, 2005, 12:27 AM
Graystar,

After reading, rereading, and rerereading this thread, I'm convinced that you're simply disregarding any answer that does not jibe with your pet theory of how this whole thing works. I'll try it one last time, more for the benefit of the audience than for the potential of educating you.

1. If police perform a custodial interview of a suspect, they must advise suspect of their rights, a la Miranda. A custodial interview is (roughly) defined as any situation where you are asking the suspect questions about a crime and that person is in a position where a reasonable person would not feel that they have the right to just get up and walk away.

2. If the police are performing an interview of a non-suspect, and he says something that suddenly leads them to think this guy might be a suspect AND the situation is one that a reasonable person would not feel that they had the right to just get up and walk away, this whole thing is suddenly transformed into a custodial interview. See #1.

3. The Miranda warning is not carved in stone. One does not have to read it verbatim from a card or form, but the warning given must hit the key points outlined in the Miranda v Arizona decision. Furthermore, there is no constitutional requirement for a signature on a rights waiver or anything to that effect, but many departments choose to do it this way because it helps ensure that the rights are read properly and understood. This is not only helps make sure that suspects know their rights, but it also helps kill defense motions to throw out the admission.

4. All Mirdanda warnings and subsequent statements are subject to suppression motions by the defense. This is where the decision to videotape interviews, usage of signed rights waivers and a demonstration of understanding by the accused comes in very handy. Officers who do a seat-of-the-pants Miranda will have a fun time on the stand with any law school graduate pro bono public defender.

5. The purpose of the Miranda warning is to ensure that the suspect knows that he has certain rights (silence, attorney, ability to invoke at a later time). Once that warning is given, if he invokes, either now or later, the police must honor it, or the statement will get tossed.

6. The purpose of the warning is not to prevent the police from subsequently asking questions afterwards (unless the suspect invokes). Having read the rights waiver, if the suspect agrees to talk, the police can and darned well should be asking them questions about the crime. There is a great deal of case law in determining how much pressure they can place on the suspect, and discussion of that is beyond the scope of this thread. It also exceeds my level of expertise, so I'll leave that to trained interviewers (if we have any). Suffice it to say that there is more to it than "I read him his rights now it's game-on". That is patently, absurdly false, and if you insist on making assertions to that effect, I'll promptly ask you to produce evidence to back them up.

The point of Miranda is not to ensure a pleasant, let's-all-join-hands-and-sing-Kumbaya interview. The point of Miranda is to advise the accused that he can, at any time, shut his pie hole and request the services of a lawyer. No more, no less. The propriety of psychological coercion in interviews has zero to do with Miranda. The reading of rights in no way absolves the police of anything they might do afterwards.

Mike

Graystar
August 9, 2005, 07:39 AM
I'll promptly ask you to produce evidence to back them up.Okay.

http://www.law.northwestern.edu/depts/clinic/wrongful/Causes/FalseConfessionsindex.htm

Pilgrim
August 9, 2005, 11:39 AM
Okay.

http://www.law.northwestern.edu/dep...ssionsindex.htm

It seems to me the issue in the above link is false confessions, not coerced confessions. My understanding of the phenomenon is that suspects, for some reason or another, do confess to crimes they did not commit due to desires to be 'famous' or to please their interrogators. Because of this phenomenon, good police interrogators and prosecuting attorneys always insist on corroborating evidence before going to court.

It appears, Graystar, that your motivation in stirring this thread is you believe that all police interrogations should be illegal and forbidden by law. This is ridiculous as interrogations have a useful purpose in solving crimes. Here in Idaho we have a serial killer in custody whose target is children. He stalks children, kidnaps them, molests them, and kills them. He was captured because one of his abductees was rescued as a result of a observant Denny's restaurant waitress.

Joseph Duncan, the accused, is a done deal. He will fry for his crimes in Idaho. However, he is talking and it appears that a child rape-killing in California will be solved. The police in California now have a name, and a fingerprint they recovered from the crime scene that matches Duncan's.

As far as the rest of the above link you gave us goes, all it points out is that Illinois now requires electronic recording of interrogations in capital cases. This is good investigative practice, and should be universal in homicide investigations.

The other side issue in the link is juvenile interrogations continued after the juvenile has asked to see his parents. This is a given as SCOTUS has already ruled that a child's asking to see his parents or custodial adult is the same as asking for presence of counsel.

So, Graystar, why don't you come out and say just what it is you want?

Pilgrim



The role of false confessions in Illinois wrongful murder convictions since 1970.

Summary of Illinois law mandating that statements during a custodial interrogation concerning a homicide be presumed inadmissible in court unless it is electronically recorded.

Full text of Illinois law requiring electronic recording of custodial interrogations in homicide cases.

Recording of Interrogations

Brief amicus curiae urging adoption of a per se rule in Wisconsin excluding statments obtained from minors who have asked to speak to their parents and been denied access to them. Wisconsin v. J (a minor)

Letter brief amicus curiae urging the New Jersey Court to create a rule requiring law enforcement officers to electronically record custodial interrogations of suspects in light of new understandings of the causes of false confessions and wrongful convictions. New Jersey v. Cook

Graystar
August 9, 2005, 01:11 PM
Coerced confessions are considered false confessions.

AS the CWC explains it...
Exonerations in false confession cases have pinpointed current psychological interrogation techniques as a contributing factor to the false confession problem. Whether appropriately applied or not, these techniques regularly coerce some innocent people–often those who are intoxicated, have severe drug problems, are mentally impaired, or who are young and ignorant of the law–into making incriminating statements or giving full-fledged confessions.

It appears, Graystar, that your motivation in stirring this thread is you believe that all police interrogations should be illegal and forbidden by law.If that’s what you think then I question if you’ve even fully read my posts. I’d bet that you’ve concentrated more on the responses to my posts, which totally miss the mark of the issue I’m addressing.

In the very first paragraph of my first post of this thread I make clear that a problem with Miranda is the tossing of perfectly valid confessions. My issue is not with cops but with the way the Judiciary views and handles claims of coerced confessions.

DMF provide three Supreme Court cases where confessions were thrown out. I stated that I believed those three convictions should have been upheld because there were no claims that police acted improperly.

I think it’s clear that I DON’T believe that all police interrogations should be illegal.

If an accused makes a claim of coercion, the first question to challenge is “was he read his rights?” THIS is what drives me crazy! By definition, such statements are *forced* from the accused...how does knowing your rights prevent you from being forced to do something?? That’s like me going to the cops and saying I was robbed, and have the cops ask “Don’t you know there a law against robbery?” Of course I know! But that doesn’t prevent *someone else* from robbing me. And herein lies the root of the problem. Knowing that you have the right to remain silent doesn’t prevent someone else from attempting to force you to confess, but the judiciary doesn’t seem to view things in this way anymore. Hence, the question “was he read his rights?”

The reading of rights should not have any bearing on the validity of a confession. If an accused is read his rights, and then is coerced into confessing, that confession should not stand. In the same way, if an accused is *not* read his rights, and he confesses voluntarily that confession should be allowed to stand. Even if you ask for a lawyer, and then voluntarily confess, such a confession should stand. The *only* determiner should be whether improper influences engendered hope or fear in the mind of the accused that compelled him to speak when he otherwise would have not. But that simple truth of compelled testimony has been lost in the legal wrangling that is Miranda.

Coronach
August 9, 2005, 03:41 PM
Heh. hold the phone.

Let's look at my whole quote on that one, and your reply.Suffice it to say that there is more to it than "I read him his rights now it's game-on". That is patently, absurdly false, and if you insist on making assertions to that effect, I'll promptly ask you to produce evidence to back them up.Okay.

http://www.law.northwestern.edu/dep...ssionsindex.htmIf anything, this is evidence that police are being held to higher standard than just 'I read him his rights and that means everything is OK.' I never stated that coerced confessions are an impossibility in today's world (even though I'll maintain that they happen a heck of a lot less now than in the past), merely that Miranda does not absolve the police of whatever they might do after reading it. Rules like the requirement for taped confessions are evidence of this. If, in fact, it was a case of "I read Miranda and that means everything is OK," the court would have no interest in seeing exactly how the suspect was interviewed. It would be moot. However, some courts obviously do want to see this, as the possibility of a coerced confession (Miranda be damned) is a pretty large risk in a capital case. As I said before:There is a great deal of case law in determining how much pressure they can place on the suspect, and discussion of that is beyond the scope of this thread.You're trying to peg a discussion of the case law surrounding pyschological pressure to a discussion about Miranda, and they have nothing to do with each other.

Mike

Coronach
August 9, 2005, 03:47 PM
Also, 14 false confessions established in Illinois since 1970? While every such instance is regrettable, in order for that number to be meaningful, we need to know how many homicides have occurred in Illinois since 1970. I suspect strongly that this will be a 4 or (probably) 5 digit number.

It also sounds like a significant number of these cases happened along with other forms of prosecutorial misconduct, which does not speak to the presence or absence of rules/laws (which we were discussing), but rather to instances where those rules/laws were broken.

Mike

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