Fair enough, thanks for the info!
“Cops” may not always parallel real world police work, but it’s commonplace for actual officers featured on the show to tell suspects it’s an advantage for them to get their version of the facts on the record right away and not clam up.
This may be true in selected instances, but I suspect it’s far more common for people to talk themselves into jail rather than the reverse, especially if they committed the crime to begin with.
Right. The police cannot make specific promises such as immunity or a certain charge or jail sentence. They may, however, in most states, make illusory promises such as “it will be easier if you talk to us” or “it will help you” and such things. Those statements are so vague that you cannot tell what exactly was promised.
But you are right. Generally if you are talking to the police, anything you say will only be adding extra bricks to your jail cell. In rare cases, you may be able to clear up a fundamental misunderstanding. But in all cases, it is best to let an attorney decide that and advise you how to proceed.
This would probably infringe the confessions rule in Canada. To meet the test of voluntariness, a confession can’t have been induced “by fear of prejudice or hope of advantage exercised or held out by a person in authority”: Ibrahim v The King, [1914] AC 599 (PC).
Depending on the totality of the circumstances, there is trouble in that statement in the United States as well. The “And God help you then, son” may be seen as an affirmative statement of a harsher punishment and the “you won’t have a chance to tell your side of the story” is a simply false statement of legal rights.
What police around here do is turn the questioning into a non-custodial interrogation. They tell the suspect to look at that door right there and know that they can walk out of it any time they want. They have the recording information at a different location and allow the suspect to drive to the other location to illustrate that he/she is not in custody. Then they can make all of those statements above and more.
In reality, if the suspect makes a detour and drives away from the other police station or walks out and starts to drive home, then probable cause suddenly “arises” to make a warrantless arrest and they repeat the process with Miranda in place.
Oops. My memory failed me. Which is why I shouldn’t try and speak for others. But someone once posted they had to Mirandize on every arrest no matter what, which I think is insane. Most of my arrests are simple misdemeanors, theft, drug possession, DC, DWI, ordinary crap like that. Having to read the card to everyone and ask them to sign the acknowledgement form would be a stupid exercise and waste of time.
I was a detective during my first career. I was a compliance investigator in the vice sector. Making sure taverns/restaurants/stores and their staff were properly licensed, not selling to underagers, had tax stamps on products, were breaking empty bottles and not refilling them, etc… There is actually a lot going on with it, and a lot of violations especially in the inner city. State Department of Revenue wasn’t pulling their weight which is why the Sheriff was doing most of it here. Anyway, even as a dick the only time I recall Mirandizing anyone is when a sting revealed a titty bar owner actively recruiting minors. I had that position for my last 4 years and that is the only time I recall having a case where I read someone their rights.
Another difference in Canada: the Charter requires advising everyone who is arrested or dertained of their right to counsel. Doesn’t depend on a custodial interrogation, but on the arrest or detention.
It’s the same sort of distinction as a retail store giving you a discount for paying cash vs. charging a fee for using a credit card.
You can quibble all you want, but the Supreme court in United States v. Patane (2004) stated “Justice Thomas, joined by The Chief Justice and Justice Scalia, concluded that a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements. Pp. 4–12.” Physical evidence obtained as a result of questioning that should have had a Miranda warrant but does not is not considered fruit of the poisonous tree under US law.
Here’s the case: United States v. Patane :: 542 U.S. 630 (2004) :: Justia US Supreme Court Center
And here’s a general overview of the topic
If Evidence Is Found Because of a Miranda Violation, Is it Still Admissible? | Nolo
That’s a three-member decision. The other two in the majority did not address whether there had been a breach of Miranda, because when the police officer started reading the Miranda warning to the accused, he interrupted and said he knew what his rights are. He then told the polic that the gun was in his bedroom and let the officer go retreiv it n.
The Court by a majority allowed the government’s appeal, but there was no majority on the law.
Sure we can. I don’t know where you get the idea that every witness statement needs to be written down and signed. Many aren’t. Do you know how much time it would take to get a written/signed witness statement at every traffic accident I investigate? I simply write down the statement in my memo book and put their words in quotes in the report. Body cams and digital recorders enhance accuracy.
If I’m doing a cursory investigation of an incident and someone I’m talking to (not in custody nor Mirandized) blurts out that he did it, that is a voluntary statement and can be used. If I have him on video and audio making that statement he’s going to be in a trick bag when he recants.
If he later recants and says he was lying I at least have him for obstructing. Then he can try to lie some more and dig his hole even deeper. There are witnesses who were not involved in any wrong doing, who maybe were even the victim of a crime who later got into trouble because they made false statements to police. They were not in custody when they made those statements and made them voluntarily. But they were prosecuted because they lied.
Generally, yes. “I’m not talking to you” is not a sign of cooperation in furtherance of the investigation. Not that it mattered since, technically, the judge is not supposed to take cooperation into consideration when it comes to setting bail. The reality is that lack of cooperation won’t get you a higher than standard bail but cooperation might get you a lower one. Once it comes to plea bargaining, cooperation is a mitigating factor and will be considered by the court.
On rare occasions we’d get a suspect who would talk once he had a lawyer there but no good lawyer should agree to that without knowing everything the police have. In drug cases time was often of the essence. Once the word was out that someone got locked up, no one would deal with him.
My advice would be, for the most part, don’t talk to the police without having a lawyer present. Especially, if its just a confession they are looking for. That said, many offenders I dealt with did just fine by confessing and flipping right away. Better than if they had lawyered up and just went through the system. This is drug or other conspiracy type case specific. Murders, not so much.
UltraVires - Off topic but here’s one for you. A guy was stabbed to death at 3:00 AM outside a local bar. He had intervened in a dispute between people he didn’t know and paid the ultimate price. He was a celebrity of sorts in his own country and there was a fair amount of media attention, the family came over from Europe, CNN, the whole bit. We developed and eliminated suspects before hitting a dead end. Out of the blue, a defense attorney called the Country Prosecutor (THE Prosecutor, not some assistant) and said, “That guy on the news? I have him in my office. He feels bad”, but nothing more than that. He brought a guy in that sort of fit the description of our suspect but his hair was now short and he wasn’t wearing glasses or a hat. He did have an injury exactly consistent with that of one described by a witness. His lawyer allowed us to photograph his client but the client wasn’t feeling guilty enough to answer any questions other than to identify himself. Having nothing, we had to let him go. We did our homework, developed probable cause and charged the client. The defendant eventually demanded to represent himself and the court allowed it, as long he had an attorney (different than the original) for an assistant. You can guess how that went.
So, did the initial attorney violate any ethical cannons? What if he had not called us? Would the Prosecutor have been subject to being called as a witness? (He wasn’t). All this happened two weeks before I retired. I was assigned the case because the scene was about a mile from my house in a town where there hadn’t been a murder in 25 years. It was supposed to be a “ground ball”. I was, literally, still writing reports two hours before the end of my last shift. We made the arrest before I turned in my badge and gun but I was never called as a witness. I still don’t know exactly how they presented the case. Especially, how they explained how suspect ended up in our office with his lawyer. That would seem to be prejudicial if there was any reference to his feeling guilty.
I think permission creates the dispositive fact. From the opinion: Detective Benner persisted, and respondent told him that the pistol was in his bedroom. Respondent then gave Detective Benner permission to retrieve the pistol. Detective Benner found the pistol and seized it.
As I said upthread, I’m not suggesting that the police can’t ‘know’ what the impermissible statement was once they hear it, but it can’t be the legal basis for the subsequent search; they need to have another legal reason to conduct the search. Here, I think permission from the perp was sufficient.
Nevertheless, I’ll chalk the citation up to “ignorance fought!” as I’ll freely concede that I am trying to draw a narrow legal distinction; I would have otherwise thought the dissenting opinion was the proper one (“There is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained”), and note that Justice Thomas (on the far end of the political spectrum, and a source of much controversy) wrote the plurality opinion.
(And in my defense, most cases turn on state - not federal - law; States often provide for more expansive interpretations of constitutional rights)
Also in England (which you will see in English police drama).
“You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court”
… which may be followed up with a contemptuous “do you understand that?” (English crime drama likes contempt). Because they are required to check that the arrested person understands the caution.
I don’t know if there is a line drawn between arresting someone to keep the peace, and arresting someone to charge them.
Also – I don’t remember getting a caution of any sort when I was arrested in vic.aus. But it was a stressful time, and there are lots of things I don’t remember.
Reported