You often hear about a criminal escaping
prosecution through a "technicality."  If you
think it's bad today, you should have started
your police career when I did in 1971.  In
those years, courts were hypercritical about
every technicality you could imagine.  
Miranda was no less controversial and
interpretive.  Every judge had his or her
view on Miranda, and the only consensus
among judges always seemed to be their
conclusion that police officers frequently
failed to get it right.

It's not so bad today; although, you'll always
have to pay close attention to those ever
present "technicalities."  When it comes to
Miranda, your department will provide you
with a rights' waiver form to assist you in
advising, and most importantly --
documenting -- a criminal suspect's
voluntary waiver of his or her right to
remain silent.  The form can be quite
extensive to include questions regarding the
suspect's level of education completed.  The
suspect will be required to initial each
question indicating his or her understanding
of the question.  The suspect will then
indicate the waiver of rights, or he or she
will invoke the right to remain silent and
sign the form.  Somewhere on the form will
be the question, "Can you read and write?"  
You should always have the suspect read
aloud a number of the questions sufficient to
ensure that the suspect can, in fact, read and
comprehend the questions.  You should then
document that "reading and
comprehension" test in your reporting.
Res Gestae

During you academy training you're going to
hear about res gestae... spontaneous and
excited utterances.  Here's an easy example
where a spontaneous utterance by a criminal
suspect would be admissible as evidence;
even though, no Miranda Warning has been
given to the suspect:

You receive a call for a robbery.  You arrive
at the scene where you're met by a woman
who tells you she was just beaten and
robbed.  Your questioning reveals the
woman was about to enter her car when the
suspect grabbed her purse.  The woman
struggled with the suspect in her attempt to
retain her purse.  The suspect then punched
the victim in the face causing her to let go of
the purse.  The suspect then escaped with
the victim's purse.

The victim provides a good physical and
clothing description of the suspect, and she
assures you she can identify the suspect if
she sees him again.  It's only been about ten
minutes since the crime occurred, and you
put the victim into your car to conduct a
search for the suspect.  You begin your
search in the direction of the suspect's
flight.  After about ten minutes into your
search, you're approximately six blocks
from where the robbery occurred when your
victim shouts, "There...over there...that's
him!  That's the man who robbed me."  
She's pointing toward three men standing in
front of a liquor store.  From the physical
description the victim gave you previously,
you quickly identify the suspect.

You tell the victim to slide down in the
backseat as you park your car a few car
lengths away from the three men.  You then
get out of your car and casually approach
the front of the store.  The suspect
immediately notices you, and you can sense
his nervous anticipation.  However, you
don't look directly at him, so he delays his
escape until it's too late.  As you grab onto
to him, the other two men take off, and the
suspect begins the usual protestations,
"Hey, man.  What's gone on, I didn't do
nothing."  You're arresting the suspect
based on the positive identification of the
victim.  Even though the crime was not
committed in your presence, the crime of
robbery is a felony, and the victim's
identification is sufficient probable cause for
you to arrest the suspect.

As you're handcuffing the suspect, the
victim emerges from the back seat and
stands next to your car.  Your suspect looks
at the victim and states, "Oh, no, man.  This
is wrong.  I didn't take that woman's
purse."  Would you say that this suspect just
made an incriminating statement?  Of
course, he did.  You didn't say anything to
the suspect, and you're six blocks from
where the crime occurred.  How would the
suspect know the woman's purse had been
taken if he didn't take the purse.  Now would
be a good time for you to verbally give the
suspect his Miranda Warning.  The warning
won't shut up this idiot, but it will look good
in your reporting.

Person of Interest

I love this one.  I think the term "person of
interest" started following the Richard
Jewel debacle and really got going during
the infamous Scott Peterson murder
investigation.  Since then, the term has
earned its place in the dictionary of political
correctness.  Look...a suspect is a suspect,
and a person of interest is a suspect.  When
it comes to the proper application of the
Miranda Warning, that person of interest
stuff won't cut any ice with a judge when you
try to justify admissibility of evidence
derived from accusatory questioning of a
person of interest without a Miranda
Warning.  Since suspects can fall under any
number of degrees of suspicion, someone
came up with the person of interest thing.  
You hear it now used regularly to fend off
the press in high profile investigations.
"The truth about Miranda is that it has
very little, if any, effect on a suspect's
willingness to talk to you about the
alleged offense." ~ Barry M. Baker
"You have the right to remain silent.
Anything you say can and will be used
against you in a court of law. You have
the right to an attorney. If you cannot
afford an attorney, one will be provided
for you."
There's more to the Miranda Warning than
those three sentences listed above.  In 1966,
the Supreme Court decided Miranda v.
Arizona; wherein, the Court imposed what it
termed "preventative safeguards" to ensure
an individual's 5th Amendment right against
self incrimination.  The Court provided
guidelines from which those three sentences
That rights' form will always be a part of any
case folder even if the interrogation of a
suspect is done on audio or video tape.  As a
patrol officer, it's not likely that audio or
video taping will be part of your
interrogations.  Detectives routinely audio
or video tape; however, those interrogations
occur under a structured routine.  For
instance, audio tapes have their own
problems. First, audio tapes must be
transcribed at some small task.  If
the interrogator is not experienced, the
person transcribing can develop a real
headache trying to make sense of any
conversation that is not relevant to the
interrogation.  Inexperienced interrogators
have the problem of stopping the audio tape
-- intermission -- to clarify issues.  
Prosecutors hate these "stop and start"
interrogations, because defense attorneys
can logically speculate toward improper
manipulation of the interrogation.

As video technology becomes more
commonplace, your department may provide
the facilities for any police officer to conduct
his or her interrogation of a suspect on
videotape.  While a videotaped interrogation
can clearly remove any doubt regarding a
suspect's voluntary wavier of his or her right
to remain silent, you should realize that a
videotape can communicate so much more.  
For instance, some members of a jury may
view your personality or manner as
intimidating; therefore, they develop doubt
about the suspect's voluntary waiver of
rights.  I'm not saying that would happen.  I
am saying that if twelve people view a
videotaped interrogation, there will be
twelve different interpretations of the
interrogation.  Your job is to keep any
videotaped interrogation as neutral and on
point as possible.

When you become a police officer, you'll
find that criminal suspects fall into two
categories...those who will talk, and those
who won't.  The truth about Miranda is that
it has very little, if any, effect on a suspect's
willingness to talk to you about the alleged
offense.  It's rare that a suspect will be
truthful.  Suspects will attempt to deceive
you in their efforts to talk themselves out of
trouble, but -- hey -- that's what
interrogations are all about.  So...when you
give suspects their Miranda Warning, make
certain the warning is thorough and well

When you watch the television cops arrest
people, the handcuffs aren't even on before
the officer begins, "You have the right to
remain silent.  Anything you say...."  While
that's okay, it's not necessary to give any
suspect the Miranda Warning; until, you
decide to ask the suspect a question
relevant to the crime committed.  In fact, a
verbal advice of rights isn't all that strong in
establishing your compliance with Miranda.  
That's why you'll have the means to
document your compliance.
Copyright © 2015  Barry M. Baker