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

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 emerged.
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 point...no
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

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

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 documented.

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  

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