US Law: Tips & leads from non-lawered interrogations.

[JonathanTheRed]

First, a question for the board’s lawyers regarding “fruit of the poisoned tree” or whatever. Suppose I, in custody and un-Mirandized, told the cops, “Yes, I killed Mr. Boddy.” I understand that this statement would not be admissible. However, suppose I told the cops, “Yes, I killed Mr. Boddy, and buried his head under the walnut tree in my back yard.” I seem to recall hearing somewhere that if the cops, acting on this information, dug up the yard and found the head, I’d have an excellent chance of getting that evidence excluded as well. Is this true? If so, what case law governs? Are the cops, knowing where the head is but also knowing that if they go dig it up it’ll get tossed, allowed to specifically ask potential witnesses leading questions in hopes of getting sufficient probable cause independent of my admission to go dig up the yard? (“So, Mr. Smith, do you happen to know if JtR had a habit of burying things under the walnut tree in his back yard?”)

Now, on to previous business:

@ashman165

Well, can and will have disparate meanings.

This I know. I’m not accusing the “and will” in the Miranda warning of being redundant, I’m accusing it of being inaccurate.

Can means might be used against you. Will means likely will be.

Will doesn’t mean “most likely will”, will means “will”… it’s why it’s spelled the same. “Can and will be used against you” is an absolute; there’s no room for “most likely” in there.

Sure, one’s a fortiori, but when has that stopped using such language in law?

AFAIK (IANAL), words like “can”, “will”, and “shall” have very definite legal meanings, and those meanings are not conditional.

[Gfactor]

@JonathanTheRed

First, a question for the board’s lawyers regarding “fruit of the poisoned tree” or whatever. Suppose I, in custody and un-Mirandized, told the cops, “Yes, I killed Mr. Boddy.” I understand that this statement would not be admissible. However, suppose I told the cops, “Yes, I killed Mr. Boddy, and buried his head under the walnut tree in my back yard.” I seem to recall hearing somewhere that if the cops, acting on this information, dug up the yard and found the head, I’d have an excellent chance of getting that evidence excluded as well. Is this true? If so, what case law governs?

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion. See Massachusetts v. White, 439 U.S. 280 (1978) (per curiam) (dividing evenly on the question); see also Patterson v. United States, 485 U.S. 922 (1988) (White, J., dissenting from denial of certiorari). Although we believe that the Court’s decisions in Oregon v. Elstad, 470 U.S. 298 (1985), and Michigan v. Tucker, 417 U.S. 433 (1974), are instructive, the Courts of Appeals have split on the question after our decision in Dickerson v. United States, 530 U.S. 428 (2000). See, e.g., United States v. Villalba-Alvarado, 345 F.3d 1007 (CA8 2003) (holding admissible the physical fruits of a Miranda violation); United States v. Sterling, 283 F.3d 216 (CA4 2002) (same); United States v. DeSumma, 272 F.3d 176 (CA3 2001) (same); United States v. Faulkingham, 295 F.3d 85 (CA1 2002) (holding admissible the physical fruits of a negligent Miranda violation). Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, we answer the question presented in the negative.

United States v. Patane: UNITED STATES V. PATANE

[Kimmy_Gibbler]

Suppose I, in custody and un-Mirandized, told the cops, “Yes, I killed Mr. Boddy.” I understand that this statement would not be admissible.

It depends on the circumstances. If they hadn’t subjected you to interrogation yet, then this voluntary utterance is admissible. See Rhode Island v. Innis 446 U.S. 291 (1979). Oyez gives this summary of the case:

Facts of the Case:

After a picture identification by the victim of a robbery, Thomas J. Innis was arrested by police in Providence, Rhode Island. Innis was unarmed when arrested. Innis was advised of his Miranda rights and subsequently requested to speak with a lawyer. While escorting Innis to the station in a police car, three officers began discussing the shotgun involved in the robbery. One of the officers commented that there was a school for handicapped children in the area and that if one of the students found the weapon he might injure himself. Innis then interrupted and told the officers to turn the car around so he could show them where the gun was located.

Question:

Did the police “interrogation” en route to the station violate Innis’s Miranda rights?

Conclusion:

No. In a 6-to-3 decision, the Court held that the Miranda safeguards came into play “whenever a person in custody is subjected to either express questioning or its functional equivalent,” noting that the term “interrogation” under Miranda included “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject.” The Court then found that the officers’ conversation did not qualify as words or actions that they should have known were reasonably likely to elicit such a response from Innis.

Although this is somewhat different from your hypothetical (your pre-Miranda warning confession versus Innis’s post-warning one), the essential inquiry is whether custodial interrogation had taken place. If the police have done no interrogation of you yet, they do not need to give you Miranda warnings.

[Gfactor]

@Kimmy_Gibbler

It depends on the circumstances. If they hadn’t subjected you to interrogation yet, then this voluntary utterance is admissible.

Good point.

[JonathanTheRed]

@Gfactor

United States v. Patane: http://www.law.cornell.edu/supct/html/02-1183.ZO.html

Thanks. I generally enjoy and agree with Justice Thomas’s opinions, but I’m not sure about this one.

@Kimmy_Gibbler

It depends on the circumstances. If they hadn’t subjected you to interrogation yet, then this voluntary utterance is admissible.

It’s not the admissibility of the statement that’s at issue, it’s the admissibility of the physical evidence the discover of which directly proceeded from the statement. Assume that the circumstances are such that the statement “Yes, I killed Mr. Boddy” would not be admissible. While the statement “Yes, I killed Mr. Boddy and buried his head under the walnut tree in my backyard” would similarly be inadmissible, would the police be able to use the information to derive admissible evidence? Assume that the cops have all the probable cause they need to get a warrant to search my property but they never would have thought to look under the walnut tree without my statement.

According to the holding in Patane, then yes, apparently, they could.

[Whack-a-Mole]

Seems to me if you are in custody and un-Mirandized they cannot ask you questions. However, if you just blurt out information that’s your own fault.

It would be absurdly easy to avoid prosecution if it were otherwise. Get arrested then quick as you can blurt out all the relevant info before they can Mirandize you. Would be a neat trick instantly making all the evidence inadmissible.

[Gfactor]

@JonathanTheRed

According to the holding in Patane, then yes, apparently, they could.

Right. I think **Kimmy **was just pointing out that if there was no interrogation, everything would be admissible.

[ashman165]

Allow me to respond: no, I’m not overgeneralzing. My comment is a blanket statement, to be sure, but nothing in it is incorrect: anyone who’s arrested can be questioned about someone else’s conduct without any issue.

Whether what they may happen to admit to about their own conduct wasn’t relevant (and in some cases it can be admissible). The discussion was about:

1.) you’re arrested
2.) you’re not Mirandized
3.) you explain what you saw someone else doing.

Miranda isn’t implicated in that.

I can think of some cases where it might be, but as far as use of the statements against the other guy, you are right.

In the follow-up about saying so and so did this while I breaking into so and so, that statement would likely be admissible. The police didn’t solicit information from him about his own conduct. The defense would have to show that the officers likely believe the person would have admitted to a crime to answer the question “what did Frank do?”. But, it could go either way since he wasn’t asked, “While you were watching Frank commit murder, what were you doing?”

Interesting point. It turns out there are four or five approaches to this issue, which mostly differ on whose perspective the court should consider, see Alexander S. Helderman, Revisiting Rhode Island V. Innis: Offering A New Interpretation Of The Interrogation Test, 33 Creighton L. Rev. 729 (2000). But your point is well-taken. Each of those approaches would probably render the statement admissible. I was unaware of this line of cases. Thanks.