Florida child killing confession may be tainted

[BostonGeorge]

This may not be so simple......was he under arrest at the time of the initial statement?

I didn't know there was a difference. I thought that once counsel was requested, all further questioning regarding the same matter was to be in the presence of counsel.

 

[Vernal45]

I thought that once counsel was requested, all further questioning regarding the same matter was to be in the presence of counsel.

Thats the general rule.

 

[BostonGeorge]

I mean it's not as if he received legal advice and continued to answer questions. He was explicitly denied.

 

[Jeeper]

Actually there are exceptions to that. The rule prohibts questioning by the police(actually it is "any communication reasonably calculated to illicit an incriminating response"). If the defendant opens the lines of communication then he is deemed to have waived the right to counsel. You can then re-mirandize and use the statements. My explaination is weak here but you get the idea.

 

[BostonGeorge]

The question then is if he initiated the polygraph, which I highly doubt. It seems that, because it was the next day, the police brought him back in (or out) for the polygraph.

 

[Jeeper]

I thought he took the poly and then asked asked for the police. That asking could then make the statement admissible.

 

[BostonGeorge]

It could, but it's fairly sticky in my view. The lines of communication, to me, seem to open with any initial communique regarding the polygraph. It could, however, go either way. I would need more information than is currently available to decide which way I might rule (if I was a jurist, and couldn't just send him straight to the chair.)

 

[beerslurpy]

The initial failure to provide a lawyer might taint everything discovered as fruit of any subsequent questioning, especially in light of the fact that lie detector tests are just a mind game that cops play to make people crack, and any lawyer would have forbidden him to take one.

There is a reason lie detector results are inadmissible in court.

 

[joab]

"OK. Hang on, hang on, hang on, hang on. ... So if we were to do a lie detector test, you'd want to get a lawyer for that ?

This particular exchange does not show that he was denied a lawyer.
Unless they p[roceded with a polygraph at that time, which they did not

He stated that he wanted a lawyer IF he was going to be polygraphed, not if they wanted to continue the discussion that they were engaged in

He could have at anytime recanted that request, we don't know that yet

Defense lawyer orgs have a habit of making court decisions before anything is even put before a judge

 

[Jeeper]

Definately some missing key facts. The time between statements and reading of the rights again are all key. The big key might be who "opened the lines of communication". If he did and then was re-mirandized then the statement might come in.

The whole point is.... The police made a bad blunder.

 

[centac]

Maybe they did, maybe they didnt. Miranda attaches when both custody and interrogation are present. If he wasnt under arrest the police had no obligation to Mirandize. A consensual conversation can proceed until the subject indicates he or she wants to stop, which is different from requesting an attorney. If he was under arrest at the time the request should have stopped the interview, if not, it wouldnt necessarily be required.

If he voluntarily appeared for the poly the next day it would speak to his initiation of the "contact", which is one reason I always have poly subjects drive themselves to the lab and meet me there.

Their really isnt enough info here to say one way or the other, but no doubt their will be a suppression hearing......

 

[Jeeper]

Miranda attaches when both custody and interrogation are present. If he wasnt under arrest the police had no obligation to Mirandize.

You dont have to be under arrest to be in custody. Custody is whenever a "resonable person would feel that they are not fee to leave". I thought that SCOTUS has found that station house questioning is always custody for Miranda purposes( I searched for the case briefly but couldnt find the cite). I thought that it was due to the inherent nature of a station house interrogation. It might have been the 5th cricuit since that is where I went to law school

 

[centac]

Again, not necessarily. The court will have to decide that during the suppression hearing. I am unaware of any SCOTUS caselaw that indicates that presence in a station equals custody and would sure like a cite if you find it. If he was free to end the conversation and leave, and knew that, he was not in custody (assuming once again he was not in fact under arrest).

 

[joab]

You dont have to be under arrest to be in custody. Custody is whenever a "resonable person would feel that they are not fee to leave". I thought that SCOTUS has found that station house questioning is always custody for Miranda purposes( I searched for the case briefly but couldnt find the cite). I thought that it was due to the inherent nature of a station house interrogation. It might have been the 5th cricuit since that is where I went to law school

Don't know if this applies, but 11 years ago I was arrested, never Mirandized or allowed to see a lawyer and kept in custody..
My lawyer said, through my mother said that did not indicate any violation on the PDs part

 

[Jeeper]

were you a minor at the time? That is a different standard then.

 

[Jeeper]

Again, not necessarily. The court will have to decide that during the suppression hearing. I am unaware of any SCOTUS caselaw that indicates that presence in a station equals custody and would sure like a cite if you find it. If he was free to end the conversation and leave, and knew that, he was not in custody (assuming once again he was not in fact under arrest).

Agreed. I will see if I can find something. All I could find was an old outline I had from law school where I had that typed in. I didnt note a case next to it. I dont know where my criminal procedure book is right now but I will try and find it and let you know. If he felt he could leave then it wouldnt be custody and you statement about miranda not applying is correct.

 

[joab]

were you a minor at the time? That is a different standard then.

Nope way over old enough to know better than to ask a cop if his daughter was sexually active or did she just lay there like his wife did.

He kinda lost all sympathy for my side of the story after that

 

[Jeeper]

centac

The only cases I found were ones where there was interrogation at the stationhouse but the guy was specifically told that he wasnt under arrest. That wasnt interrogation. Otherwise it just goes back to the reasonable person feeling like they could leave standard.