A primer on what NOT to do when Mirandized

So after the SD shooting, you call 911, then you call USCCA or whatever insurance you might have. If you lose your phone in the fight (takes a round, dropped and left behind) , then do you call USCCA or your attorney from jail. If you have USCCA do they find an attorney for you?

 

Starnbar,

The "Best Practices" for LEOs involved in a shooting are the same as they are for anyone else.

There ain't no such thing as the "Garrity Act." (Please make sure that you're not being confused here by the United States Supreme Court 1967 decision in Garrity v New Jersey).

While you're studying the case law, also make sure that you're familiar with public safety statement exception to the 5th Amendment that the Supreme Court created in their 1984 decision in Quarles v New York. If you withhold critical "Public Safety" information at the scene, you can find yourself facing both civil and criminal liability. Additionally, if you're a public safety officer, you can also face termination of employment.

The circumstances of a shooting can be very traumatic, and there is a large body of evidence that shows statements made immediately after a shooting tend not to be complete, or well-considered. You can't take back any words spoken right after a shooting, so you have to be careful what you say.

The best practice (for everybody) is to immediately provide the "Public Safety" information required by Quarles, and then politely decline to provide any other information until you have had the opportunity to recover from the event, and to confer with counsel. Just so that everybody is clear, the reason that you fired, and the amount of any fear that you felt when electing to fire, do not fall under the Quarles criteria. If you say something like "I was in fear for my life", but then decline to respond to questions about why you were in fear for your life, then it's possible for your silence in response to those questions to later be used against you (refer to Salinas v Texas). It's best just not to open that door. Make sure you know what information you're required to immediately provide, immediately provide that information, and nothing more. (POSTSCRIPT - The premise of this thread was that the subject was "Mirandized." If a person was given the Miranda admonishment, then the Salinas decision is inapplicable. OTOH, if the subject was not given the admonishment, then Salinas may become a troublesome issue.)

For LEO's the administrative admonishments under Garrity v New Jersey and Lybarger v City of Los Angeles, may possibly be given, but are quite unlikely. What these admonishments do is to separate the LEO's civil liability from their criminal liability. In sum, the officer is ordered to respond to questions, thus making their responses involuntary. That generally makes the response inadmissible in a criminal trial (but there are exceptions and Quarles is foremost among them). The admonishments are disfavored by investigators because of the potential for the interviewee to "take an immunity bath" where they admit to serious wrongdoing in order frustrate any potential criminal trial. There was a good example of this in the Navy's Courts-Martial trial of Chief Petty Officer Gallagher. He was a Navy SEAL charged with several acts of misconduct, including the murder of a POW. One of his teammates, who was testifying under an immunity substantially the same as would be produced by Garrity/Lybarger, testified that Gallagher was innocent of the murder because he (the immunized sailor) was the one that killed the POW. No investigator/prosecutor wants to allow themselves to be put into such a position.

 

While I haven't been around forever, I wouldn't refer to myself as a "new boot." Maybe if you yourself have 30 years in and are retired, otherwise I am more than Halfway to retirement. We all know Spats isn't "new boot," and I can tell you that Rick isn't based on his knowledgeable responses. I know a number of retired and about to retire administrators that could not convey a fraction of the knowledge he has presented.

 

I will bow to your input here as this is evidently squarely in your baliwick. After all, THR is a place where we share and learn from each other.

However, this is NOT supported by my personal experience on the flip side.

You, and others you know and work with, may conduct your professional life in just such a manner. But it's most definitely NOT that way for everybody in your profession. Perhaps even a majority, though I know of no studies about this and freely admit this is biased conjecture on my part.

If it were, then why the nonchalant attitude towards waving a person's rights prior to an interview, as if it were just some kind of casual formality with little consequence associated? That is about the single, most abhorrent part of such interviews, convincing the person being questioned to willingly give up their right to remain silent by taking advantage of their naivete.

Yes, LEOs pursue an investigation to create and narrow down a list of people who may be implicated in a given crime. I get that. From this they hope to produce a suspect, or suspects. I get that.

But in the convoluted world of reality, not everybody is a paragon of ethical comportment on the government's side of the legal system, just as for the rest of the people.

These rights which are protected by the foundation of our government aren't there to protect us from the angelic side of our government; they're there to protect us from those who would abuse their power and authority a well as those who would perhaps inadvertently stray from the path of true justice.

 

I want to follow up on RickD427's post about Miranda and Texas v. Salinas, 570 U.S. 178 (2013). Police must give warnings under Miranda only when the suspect is in custody. Custody does not mean under arrest; it means that a reasonable person would believe he or she is not free to leave. Police do not have to give a Miranda warning to someone they suspect of committing a crime, but who is not in custody. This is a simplistic explanation but applies to most encounters where Miranda comes into play.

RickD427 also mentioned an adoptive admission and Texas v. Salinas. An adoptive admission is where person A makes a statement that any normal person would respond to or deny, but person B remains silent. B is said to have adopted the substance of A's statement because of B's silence. For example, A exclaims, "You killed her!" B's silence can be interpreted as an admission of responsibility. Of course, B can try to explain it away at trial.

RickD427 almost gets it right when he states that a person adopts a statement by his or her silence if police have not given the suspect his or her Miranda warnings. Actually, the controlling opinion in Texas v. Salinas (a three-justice plurality) says an un-Mirandized suspect's silence can be used against him or her (such as an adoptive admission) unless the suspect explicitly invoked his or her right to remain silent under the Fifth Amendment. I have seen prosecutors, criminal defense attorneys, and judges get it wrong (usually in favor of the defendant).

 

What is the Garrity act?
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The basic premise of the Garrity protection is straightforward: First, an Officer cannot be compelled, by the threat of serious discipline, to make statements that may be used in a subsequent criminal proceeding; second, an Officer cannot be terminated for refusing to waive his Fifth Amendment right to remain silent.

 

Name - Rank - Serial Number Call the wife in jail if need be, she is my attorney anyhow. Ha!

 

Garrity Basics
Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.

For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.

Garrity Rights stem not just from the Fifth Amendment, but also the Fourteenth Amendment. While the Fifth Amendment could be said to apply only to the federal government, the "equal protection" clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964's Malloy v. Hogan)

Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey.
The Garrity Story
In 1961, the New Jersey attorney general began investigating allegations that traffic tickets were being “fixed” in the townships of Bellmawr and Barrington. The investigation focused on Bellmawr police chief Edward Garrity and five other employees. When questioned, each was warned that anything they said might be used against them in a criminal proceeding, and that they could refuse to answer questions in order to avoid self-incrimination. However, they were also told that if they refused to answer, they would be terminated. Rather than lose their jobs, they answered the investigators’ questions. Their statements were then used in their prosecutions – over their objections – and they were convicted.

The U.S. Supreme Court then ruled in 1967’s Garrity v. New Jersey that the employees’ statements, made under threat of termination, were compelled by the state in violation of the Fifth and Fourteenth Amendments. The decision asserted that “the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.” Therefore, because the employees’ statements were compelled, it was unconstitutional to use the statements in a prosecution. Their convictions were overturned.

Several subsequent cases further clarified the protections that fall under the umbrella of Garrity Rights:

 

This has been a very enlightening thread. Thank you again, Kleanbore! We are never too old to learn new strategies and techniques.

 

Chief,

Thank you for your kind words, and yes, you are quite correct that LEOs do not always perform their duties with perfection. Several years ago, I often sparred with another gent on the Calguns forum. He had been the Student Body President at a local Junior College and had been photographed with several military style rifles. The school administration went nutso and requested a police investigation. My agency had just assumed policing responsibilities for the college under a service contract and they did the investigation, and in an atmosphere of some political pressure. A search warrant was served and the student was charged with the felony possession of "Assault Weapons." Only after a close examination of the weapons, following the arrest, was it determined that the weapons were legally configured and the charges dropped. I was never made privy to the contents of the investigation, but something was clearly wrong if the weapon configuration could not be established prior to the arrest. But the fact that a small number of LEOs fall short doesn't justify a conclusion that all fall short. In conning a ship through a narrow channel, you'll run aground if you stray too far to the right of course. But that doesn't justify straying too far to the left of course, you'll still run aground. My point is simply that there is no "One size fits all solution as to what one should do when "Mirandized." It's much better to understand the rules of the game, and then apply those rules to the particular circumstance that you find yourself in to make an appropriate decision as to what to do.

I don't really see a "Nonchalant" attitude toward people's rights, but I do often see some haste in reaching a conclusion that may appear as such. LEOs are human and we like to complete our tasks as quickly as possible, we have more work waiting for us when we're done. When I worked patrol, I'd be assigned calls, and would use the time between calls to search for the coveted "Observation Arrest." That's where we're able to take a crook off the streets before he/she/it/other commits some more serious crime. But that takes a lot of legal work. We have to find someone that appears to up to illegal activity, we have to meet the Terry v Ohio standard to temporarily detain them and conduct a field investigation, and then if that field investigation produces "Probable Cause" to believe a crime is being committed, then an arrest is made. A general "Ballpark Figure" is that I'd make one arrest for every five field investigations. That means four out of five field investigations result in a finding of no criminal activity. Those figures are pretty much in agreement with the concepts of "Reasonable Suspicion" (the standard required to detain and conduct a field investigation) and "Probable Cause." If a person is gonna fit into the 80% group where there is no criminal activity found, then I'd like to get to that conclusion as quickly as possible. That gets those folks on their way as quickly as possible and allows me to focus on the 20% that are going to jail.

 

I also want to thank RickD and 5whiskey for their contributions to the thread; not to leave starnbar hanging either -- Garrity rights are a real thing, something you get familiar with when you're put into management positions (especially if your HR is any good), involved in union activities (guild/PBA/union rep/shop steward) or do internal investigations on staff. And Rick, great posts. I would only add, folks should learn about their prosecutor's office -- don't only worry about the patrol guy who responds to your worst day, or the assigned investigator -- you got a politically-motivated, elected prosecutor to deal with. Good luck. And Alec, karma's a *****.

 

Interviewing technique is the most important issue. Many cases of false confession are from bad interviews. Where the person is intimidated and then led by the interviewee.

 

I would like to pull this back to the OP.

This thread is about what not to do when mirandized and uses the specific example of Alex Baldwin's interview. We can go all over the place with this, as with many things, and easily sidetrack ourselves.

It was pointed out by Andrew Branca that "if you’re being Mirandized it’s because the police want to question you as a potential suspect in a crime". This has also been affirmed by others here whom I accept as professionally knowledgeable on the subject.

Miranda rights are read to the subject in custody when "the LEO suspects that the subject may make incriminating statements".

"If you are ever mirandized, there is about a 90+% chance you are going to jail and WILL be charged. Police can interview you all day long without advising you of Miranda if the interview is not custodial."

I've said in other posts that I'm not an attorney. Well, I'm not in law enforcement, either.

But I do consider myself a reasonably intelligent person with an engineering background and a disposition towards wanting to understand things. While many things ARE convoluted, the fact of the matter is that many things are entirely within the grasp of the average person if they at least put forth an honest effort to gain that understanding.

Words MEAN things. They mean things in the legal world just as importantly as they mean things in the engineering world.

Alex Baldwin isn't just the subject of a field investigation here. The shooting happened on October 16. This interview took place 5 days later on October 21. By this time, it HAD to be clear that not only did he commit a fatal shooting, what he did clearly fit squarely in the realm of involuntary manslaughter.

He was Mirandized and you can bet this was because they believed he would say something incriminating. All they had to do was question him on the elements to involuntary manslaughter and not only would they have whatever physical evidence and witness statements, they would also have it in his own freely given, Mirandized word to support this.

THIS is why I said they weren't looking for "innocence". They were long past that point in their investigation.

I went back and listened to that minute long video on the interview where he was read his rights. Here is my transcription of part of that, a bit incomplete because there was a lot of talking over each other. There may be some errors due to me not making out exact wording. Listen to it again yourself to be sure I captured the gist properly.


So, my only question is, am I being charged with something?

(Det. 1) No, we're just interviewing.

That's what I want to know, that's what I want to know.

I'm not worried because I'm not, you know, if you're charging me with something, just tell me because...

(Det. 1) But it's...we have to do our job at...at advising you of your rights because...this is a investigation.

(Det. 2) Just a formality...have to do it if you're...appreciate it.

(Much talking over each other, some laughter, couldn't capture all the conversation.)


This was clearly an attempt at trivializing the waiving of his rights. It was clearly an attempt at manipulating him into a position of being more at ease with this "interview".

They didn't make a point of Mirandizing him before questioning him for nothing. They did so because he was CLEARLY the suspect in this case.


If anybody has gotten to the point of having their rights read to them, it's pretty safe to say the police ain't "playing games" at this point.

 

Interviews tend to go south on ya when the LEO asks "Where were you at such an such a time". Thats when you hush up! You are a suspect.

 

Not necessarily. That's the point that interviews go either "North" or "South." You gotta remember that you have knowledge on the point, and the interviewer is seeking knowledge on the point.

If the offense being investigated occurred at "The Bar" at the time in question, and you were at the shopping mall at the time in question. It's best to truthfully answer the question. You'll get home a lot sooner and the nice investigator can get on with his work.

If you were at the "The Bar" at the time of the offense, it's probably time to get that lawyer.

There ain't no "One Size Fits All" solution to be had. You've got to think things through.

 

I agree...which may sound strange to those who have read my previous comments.

This will get long...as some of you may know I sometimes get. Bear with me.


An officer asking questions does not necessarily constitute a warning that one should keep one's mouth shut. However, if one is going to answer them, whether or not one has had their Miranda Rights read to them, the one thing you absolutely should NOT do is lie or prevaricate. Being caught lying is an automatic flag on several levels, including your own ability to credibly defend your position if need be at some later time.

Yes, there are lawyers out there who will happily give examples and demonstrations of why even answering truthfully can get you into trouble. This is because it's not all that difficult to nitpick answers to find discontinuities which can subsequently be used to show you're being "less than truthful". But there's more to an investigation than just a Q&A session or two.

As I said before, I'm not a law enforcement officer. Neither am I a forensics specialist, coroner, doctor, or whatever else. But it's generally known that any investigation involves a plethora of investigative techniques which span many different areas. Just because a person can or cannot verify where they were at any particular time doesn't automatically include or preclude them as a "witness", "person of interest", or "suspect". If the physical evidence doesn't support a given person's culpability for whatever reason, then the fact that that particular person was or was not present may have very little to do with how the police view them as a potential "suspect". It's just another piece of the puzzle which doesn't contribute significantly to the overall image one sees as it's assembled.

Indeed, it's been pointed out that keeping one's mouth shut does not automatically invoke one's Right to Remain Silent. See Salinas v. Texas.


BY THE WAY...

I mentioned earlier I'm an engineer. In engineering, source documents are essential, because they are the primary documents one bases their engineering actions on. Which means we habitually read, interpret, and apply these source documents in order to do our jobs. Not doing so is akin to acting on "hearsay" or making unwarranted assumptions. A phrase I learned long ago about what it means to "assume" in place of knowledgeable actions: You will make an "*ss out of u and me".

If someone posts a "source document", such as Salinas V. Texas, then READ IT. Don't go for the media synopsis or your own preconceived notions gathered from hearsay. Read it and then, if you don't understand it, seek clarification.


In Salinas v. Texas, Salinas, without having been placed in custody or receiving Miranda warnings, VOLUNTARILY accompanied and answered some of a police officer's questions about a murder BUT WENT SILENT WHEN ASKED WHETHER BALLISTICS TESTING WOULD MATCH HIS SHOTGUN TO SHELL CASINGS FOUND AT THE SCENT OF THE CRIME. Later he tried to claim the privilege of protection against self-incrimination by the mere fact that he didn't answer some of the questions which could have been self-incriminating.

There are important things to note here in order to understand why this case is so important to one's Right to Remain Silent.

Salinas VOLUNTARILY went with the police and VOLUNTARILY answered questions without having had his rights read to him. During that time, he essentially picked and chose which questions he would answer and which he would not. And he did so WITHOUT having positively invoked his Right to Remain Silent.

From this, we can glean a couple things: One is that if one is going to exercise one's right to silence, then SILENCE is the order of the day, start to finish. You don't answer ANYTHING when asked. The other is that you want it CLEAR that you are invoking your right to remain silent...and then YOU SHUT YOUR MOUTH. If you invoke your right to silence and then continue to speak and answer questions...you've given up your right to silence.


If you actually read up on this case, you'll find that the Court recognizes TWO exceptions to a person positively claiming his right to silence.

1. A criminal defendant does not have to take the stand and assert the privilege at his own trial.

2. A failure to positively invoke one's right is excused where government coercion make the forfeiture of this privilege involuntary. (He can't be forced by the government to give up his right to silence).

Salinas did not qualify for either of these exceptions.


In short, simply not answering questions does NOT automatically constitute invoking one's right to remain silent. If so, one could simply pick and choose what they will and will not answer. If a person behaves this way, then the fact that they have done so may be "used as evidence against them", as it were.

Moreover, being read one's Miranda Rights does not automatically invoke one's right to silence either. The Miranda Rights are a positive notification that the person to whom they are being read to HAS those rights and MAY INVOKE THEM if they wish. If they don't positively invoke the right to remain silent, then they have not claimed that privilege. Any forms a suspect may sign to this effect is simply a positive record of confirmation that you have VOLUNTARILY given up that right.

Even so, one can invoke that right AT ANY TIME, even after signing any documents saying you gave it up. It just means anything from that point on is covered under the protections against self-incrimination.

 

An interesting thread, myself speaking as someone that has worked in law enforcement for over 18 years one thing has been missed. Cops are just people, and subject to all the things that other people deal with. Sometimes it is not right, but everyone is human. A bad divorce at home will be on your mind. Your 15yr old daughter pregnant will be on your mind....the list can go on and on. Oddly enough what happens at work usually does not mess with people after a few years. You learn to treat people like a dead deer on the side of the road, it is cold but true.

Again there is no one size fits all, but I think anyone that has worked in this area can think of people that if they just opened up on scene they would not have gotten a trip in the back of a car and put on 24hr hold. You know what happened, even if you do say well I was across the street and watering my flowers does not mean one thing or the other, there is no one size fits all again.

All I can say is be polite, that is all it usually takes. Be nice and chances are the people with stars and guns will also be nice. And you can be nice and not say anything as well. They should drop it if you say no I am going to lawyer up.

 

Which is why you must keep asking—after requesting an attorney—-“Am I free to leave?”

 

So true. Found this on NOLA

 

I have a lawyer on retainer and I have been slowly increasing that retainer over the last year.
I advise everyone to do the same.

Yesssssssss says the snake.

 

Memorize your attorney's number. You won't have your phone in lock up.

 

It is better to call one’s spouse or next closest of kin than one’s attorney with their one call. They can in turn make as many calls as needed to get the right help on your behalf.