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Indictment by Grand Jury
Development and Scope
Reprosecution Following Mistrial
Reprosecution Following Acquittal
Acquittal by Jury
Acquittal by the Trial Judge
Trial Court Rulings Terminating Trial Before Verdict
Reprosecution Following Conviction
Reprosecution After Reversal on Defendant's Appeal
''For the Same Offence''
Legislative Discretion as to Multiple Sentences
Successive Prosecutions for ''The Same Offense''
The ''Same Transaction'' Problem
Development and Scope
The Power to Compel Testimony and Disclosure
Required Records Doctrine
Reporting and Disclosure
Confessions: Police Interrogation, Due
Process, and Self-Incrimination
The Common Law Rule
State Confession Cases
From the Voluntariness Standard to Miranda
Miranda v. Arizona
The Operation of the Exclusionary Rule
Supreme Court Review
Procedure in the Trial Courts
History and Scope
Scope of the Guaranty
Procedural Due Process
Administrative Proceedings: A Fair Hearing
Aliens: Entry and Deportation
Judicial Review of Administrative Proceedings
Substantive Due Process
Congressional Police Measures
Congressional Regulation of Public Utilities
Congressional Regulation of Railroads
Deprivation of Property: Retroactive Legislation
Right to Sue the Government
Congressional Power to Abolish Common Law Judicial
Deprivation of Liberty: Economic Legislation
National Eminent Domain Power
Rights for Which Compensation Must Be Made
Enforcement of Right to Compensation
When Property Is Taken
Government Activity Not Directed at the Property
"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.
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.
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 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 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.
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.
|Miranda Warnings and Terrorists
U.S. Constitution: Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor 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; nor shall private property be taken for public use, without just compensation.
Take a few minutes and read the Fifth Amendment. Dissect and analyze this simple paragraph, because it covers a lot of ground. When you read, “nor
shall be compelled in any criminal case to be a witness against himself,” you should recognize the essence of the Miranda Warnings:
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 speak to an attorney, and to have an attorney present during any questioning.
If you cannot afford a lawyer, one will be provided for you at government expense.
This is just the short version of Miranda. Miranda warnings are often verbose to avoid suppression challenges. In short, Miranda is simply an
expansion of the Fifth Amendment’s right against self incrimination for those who are too stupid to understand one sentence containing fourteen words.
Now, after two hundred plus years, the Fifth Amendment has accumulated a lot of baggage in the form of legislation and case law:
Just for the fun of it, go to the link I’ve provided on the left to Confessions: Police Interrogation,
Due Process, and Self-Incrimination. You’ll soon realize just how something simple can get really
complicated. When you become a police officer, you’re going to learn that there is nothing you do
that isn’t going to be complicated by others. Don’t forget, you’re going to be doing your job in a
society where lawyers actually outnumber police officers.
Miranda is not a Big Deal
You have to ask the question, “Why do we have Miranda?” Prior to Miranda, every incriminating
statement your suspect made to you could be used as evidence against him in court. This was not a
good situation for the suspect, but more importantly, it was not a good situation for the attorney
defending the suspect/defendant in court. The lawyers and the judges – lawyers in robes – simply
used Miranda as a means to give lawyers an edge in gaining acquittals for their defendants.
Initially, Miranda was beneficial to defendants and their lawyers, but once police devised and
perfected procedures for adhering to Miranda, its adverse effects to prosecution and beneficial
effects for defendants and lawyers became negligible.
When you start interrogating suspects, you’ll probably be surprised how little, if any at all,
Miranda will affect your suspect’s willingness to talk to you. Every now and then, you’ll run into a
suspect who will not talk. This suspect fits a type. He could be completely ignorant of the Fifth
Amendment and Miranda, but he’ll be smart enough to know that talking to you is not in his best
One of the reasons why Miranda is ineffectual is that it is so ingrained in our culture. For many
people, familiarity with anything will tend to diminish its importance. But, the biggest pitfall for
Miranda is human nature. Most people have a natural urge to respond to accusatory statements or
questions. Even if a suspect exercises his right to remain silent, there are no prohibitions for you,
the interrogator, to remain silent. A skilled interrogator, armed with relevant information, can
talk to a suspect in custody indefinitely without ever asking a question. That same interrogator,
even with an attorney present, can phrase statements and questions in ways which makes the
suspect’s urge to respond overwhelming notwithstanding his attorney repeating, “Don’t answer
that.” Remember, a key element to any successful interrogation is custody. You have a –
literally – captive audience, and the interrogation isn’t over; until, you say it’s over.
When it comes to terrorism and terror suspects, there are plenty of valid arguments for treating
terror suspects differently from what we’d consider generic criminal suspects. However, when any
investigation attains a high public profile, everything becomes more complicated. Let’s take the
case of Faisal Shahzad, the suspect charged in the May 1, 2010 attempt to explode a car bomb in
New York City’s Times Square. Even though Shahzad was given Miranda Warnings; the United
States Department of Justice was quick to announce that Shahzad was still talking. That
announcement could be true and it probably is true. The one thing that terror suspects have in
common with other despicable criminal suspects is that they are all people.
Personally, I’m in the camp with those who think a terror suspect associated with any terrorist
network should be treated differently from other criminal suspects. You probably don’t find that
view surprising coming from a career police officer, but it’s a position I don’t take lightly. I take
individual rights and due process very seriously; however, I also know that the goal of organized
terrorism is to destroy the United States and all the individual rights we enjoy.
Treatment of terror suspects did change after 9/11, but 9/11 is in the rear view mirror, and those
charged with protecting the country from terror attacks have determined that terror suspects
should be treated like any other criminal suspect. I just hope that another 9/11 by another name
does not occur to change that view. If it does, Miranda Warnings for terrorists still won’t be a big