INVESTIGATIVE TECHNIQUES LAW
Copyright 2001 - 2018 Edward S. Armstrong, Jr.
All law enforcement officers must confer with their training officers, legal advisors and prosecutors regarding the following legal issues. State law can be more restrictive (pro-defendant) than federal law. Federal circuit courts of appeal often disagree with other federal circuit courts on issues not yet decided by the United States Supreme Court. Also, lower courts (state and federal) sometime disagree on what a Supreme Court decision means. The following statements are not to be taken as legal advice.
26. OVERT INTERROGATION OF SUSPECTS AND DEFENDANTS
See also, #15, Covert Undercover Activity and Questioning.
"No person...shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law", Fifth Amendment, U.S. Constitution.
Government can compel a witness to testify in Court - but the witness must be granted Immunity, Kastigar v. U.S. (1972) 18 USC 6001-6005
A witness who is compelled to testify in a foreign court (even though it might be legal there) cannot have his testimony admitted in a U.S. Court, U.S. v. Conti, 2nd Cir, 16-898,939 (7th Cir 2017)
"In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defence," Sixth Amendment, U.S. Constitution.
The "ready ability to obtain uncoerced confessions is not an evil but an unmitigated good," McNeil v. Wisconsin (1991).
"A defendant's confession is probably the most damaging evidence that can be admitted against him. A confession is like no other evidence," Supreme Court Justice Byron White.
a. Confessions / Admissions must be Voluntary
(1) No torture, Brown v. Mississippi (1936)
(2) No mental coercion, Arizona v. Fulminante (1991), Colorado v. Connelly (1986)
(3) No threats, Lynumn v. Illinois (1963), Spano v. New York (1959)
(4) No government induced drug stupors, Beecher v. Alabama (1972), Townsend v. Sain (1963)
(5) No extended detention / interrogation, Davis v. North Carolina (1966)(16 days!)
(6) Confessions obtained during an unreasonable delay before taking the suspect to a U.S. Magistrate must be excluded from a federal trial, Corley v. U.S. (2009), 18 U.S.C. § 3501. (confession obtained after 6 hours must be reasonable, e.g., travel time, means of transportation, etc).
(7) OK to lie to suspect that his co-defendant has decided to turn State's evidence, Oregon v. Elstad (1985).
(8) OK to tell a suspect to "cut a deal" before his co-defendant does, Bobby v. Dixon (2011).
b. Miranda Warnings Required if Suspect is Under Arrest and Police Intend to Interrogate
(1) If Police arrest a suspect and intend to question him overtly about a crime, they must first administer the Miranda warnings and obtain a waiver, Miranda (1966), Dickerson v. U.S. (2000).
(2) Warnings consist of the following rights: right to silence; right to know that what he says can and will be used against him; right to have an attorney before answering any questions; right to know that if he cannot afford or otherwise obtain an attorney, one will be appointed for him, Florida v. Powell (2010).
(3) A child's age may indicate that he is in custody, J.D.B. v. North Carolina (2011)
c. Miranda Warnings and Waiver Not Required
(1) Suspect is not under arrest, Miranda v. Arizona (1966). Examples: on the scene questions, telephone calls, etc. But see D.6., below.
(2) During a traffic stop until the driver is arrested, Pennsylvania v. Bruder (1988).
(3) During a Terry reasonable suspicion stop, Berkemer v. McCarty (1984). However, several federal circuit courts require Miranda warnings / waivers during high risk Terry stops.
(4) Arrestee's personal history information, Pennsylvania v. Muniz (1990) Examples: name, address, weight, eye color, date of birth, current age.
(5) Person visits Police and volunteers a confession, Miranda (1966).
(6) Officer safety questions after arrest, New York v. Quarles (1984).
(7) Person is questioned by a non-law enforcement officer, e.g., neighbor, friend, cellmate.
(8) Undercover Potential Arrest or Jail Exception (see also Section 15, Undercover, above)
Suspect is under arrest (e.g., in Police car, office) or in jail and is questioned by an undercover Police officer or informer about crime(s) he has not been formally charged with.
Illinois v. Perkins (1990), Alexander v. Connecticut, 917 F.2d. 747.(2nd Cir.1990)(previously asked for an attorney), U.S. v. Cook, 599 F.3d 1208 (10th Cir.2010)(previously asked for an attorney).
Note: If a suspect is formally charged with a crime then no undercover questioning may occur about that crime, Massiah v. U.S. (1964)(6th Amendment violation).
(9) Overt Potential Jail Exception
State prisoner was taken by a corrections officer from his cell to an interview room where two armed deputies were located; the deputies were investigating a crime the prisoner allegedly committed before incarceration; the deputies did NOT advise him of the Miranda warnings or obtain a waiver; the deputies told him he could leave at any time; the deputies did not restrain him during the meeting; sometimes the interview room was open and sometimes it was shut; he confessed; confession admissible, no Miranda required, Howes v. Fields, (2012).
Suspect in jail for attempted arson. Suspect indicated he would tell Police about unsolved robberies. Suspect was taken to the jail library, handcuffs removed, told he was not under arrest for the other crimes, told he was not required to answer questions, told he could end the interview at any time by pushing a button on the table to summon the guards, suspect was not Mirandized, suspect made incriminating statements, Admissible. Since the suspect was not "in custody" for Miranda purposes during the interview, Miranda warning and waiver not required, U.S. v. Ellison, 632 F.3d 727 (1st Cir. 2010) Written by former Supreme Court Justice Souter.
d. Request for Attorney After Arrest
(1) If a suspect under arrest asks for an attorney, overt Police questioning about criminal acts must stop immediately, Miranda (1966).
(2) A suspect's request for an attorney must be unambiguous, Davis v. U.S. (1994).
(3) When the arrestee asks for an attorney, no law enforcement officer may attempt to question the suspect overtly about any crime as long as the suspect remains in custody, Edwards v. Arizona (1981), Arizona v. Roberson (1988), Minnick v. Mississippi (1990).
(4) However, if the arrestee notifies Police that he has changed his mind and is now willing to talk, Police may revisit the suspect and question him overtly after obtaining a Miranda waiver, Edwards v. Arizona (1981).
(5) Police may question the arrestee covertly (undercover) until he is formally charged with that particular crime, Massiah v. U.S. (1964). See #15, Undercover, i.; and also C.8. above, for undercover questioning in jails.
(6) If an arrestee invokes his right to an attorney and is later released from custody (e.g., bail, charges dropped, etc.), Police may reinitiate overt contact with him after 14 days, Maryland v. Shatzer (2010).
(7) If a person in custody invokes his right to an attorney and is later released into a general prison population, Police may reinitiate overt contact with him in prison after 14 days, Maryland v. Shatzer (2010).
e. Request for Silence After Arrest
(1) If a suspect under arrest tells Police he intends to remain silent, overt Police questioning about criminal acts must stop immediately, Michigan v. Mosley (1975).
2) A suspect's invocation of his right to silence must be invoked unambiguously. If the suspect says nothing, interrogation may commence, Berghuis v. Thompkins (2010).
(3) If an arrestee has not asked for an attorney, but did invoke his right to silence, different Police officers may later (2 hours in this case) reinitiate overt contact with the suspect about different crimes, Michigan v. Mosley (1975).
(4) Police may question the arrestee covertly (undercover) until he is formally charged with that particular crime, Massiah v. U.S. (1964). See #15, Undercover, above.
f. Non-Mirandized Voluntary Confession / Admission of Person Under Arrest
(1) Inadmissible at Trial, Miranda (1966).
(2) Physical evidence discovered as a result of the confession is admissible at Trial, U.S. v. Patane (2004).
(3) Admissible during cross examination by a prosecutor if the defendant takes the witness stand at Trial and lies, Harris v. New York (1971).
(4) Answers to public safety questions are admissible at Trial, New York v. Quarles (1984).
g. Second Mirandized Statement of Person Under Arrest
(1) Police may use a second voluntary Mirandized confession / admission if the first non-Mirandized confession / admission was voluntary and the result of an inadvertent, accidental or non-deliberate violation of the Miranda rules, Oregon v. Elstad (1985).
(2) Police may use a second Mirandized confession / admission after a deliberate first non-Mirandized voluntary confession / admission only if voluntary and if curative steps occurred between the two confessions / admissions. Curative steps might include: a substantial break in time and circumstances between the two (Kennedy, J.); or an additional warning that explains the likely inadmissibility of the first confession / admission (Kennedy, J.); or a different location or different interrogating officer (Breyer, J.), Missouri v. Seibert (2004).
Assuming arguendo that Seibert applies: 4 hours between the 2 interrogations, suspect taken to separate jail and back again, he said he talked to his attorney, he learned Police were talking to his accomplice and he learned the Police had found the murder victim's body - this constitutes a "substantial break in time and a substantial change in circumstances" allowing the second voluntary Mirandized confession admissible, Bobby v. Dixon (2011).
Once a suspect is formally charged with a crime at the Initial Appearance, Indictment, Information, Preliminary Hearing, or in some cases a Complaint under State law, (whichever comes first), he becomes a defendant protected by the 6th Amendment right to an attorney. The 6th Amendment right is a protection regardless of whether the defendant is in custody or not in custody. See Rothgery v. Gillespie County, Texas, (2008).
(1) Unless a defendant is in custody and has already asked for an attorney, see Edwards v. Arizona, (1981), and he has not requested an attorney at or after the 6th Amendment rights attached, Montejo v. Louisiana, (2009), the defendant may waive his 6th Amendment Rights if Police give the Miranda Warnings and obtain a Waiver, Patterson v. Illinois (1988).
(3) A defendant's voluntary confession / admission obtained in violation of the 6th Amendment may be introduced at Trial if the defendant takes the stand and lies, Kansas v. Ventris (2009).