Homeland Security can’t use Miranda warning

[Graystar]

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]

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]

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]

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 rights

Yoiu 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]

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]

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]

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]

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]

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]

Personal responsiblity

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]

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]

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]

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]

. . . 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]

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]

You also seemingly do not understand the meaning of the word compelled

Are 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]

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]

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]

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]

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]

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.htm

If 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]

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