In this column we will list court decisions and legal issues of interest to our visitors.

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> Need to Refresh Waiver

> Validity of Waiver

> Juvenile Interrogations

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> Effect of Polygraph Examination on
Confession Admissibility

> Trickery and Deceit

> Right to Remain Silent

> The Value of Recording Interrogations

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Over the past 20 years The Reid Technique of Interviewing and Interrogation has become the standard for proper interviewing and interrogation procedures throughout the country. Thousands of law enforcement, government and private sector investigators are trained every year by John E. Reid and Associates, Inc. As a result, in confession cases The Reid Technique is oftentimes described, discussed and examined. Here are a few cases where the courts have addressed The Reid Technique.

Note: The court decisions may or may not contain an accurate description of what we teach as The Reid Technique of Interviewing and Interrogation. In fact, some of them are completely erroneous in the tactics and techniques that they attribute to the Reid Technique. Nevertheless, the decisions offer some valuable insight.

Click here for the cases.

In the case of State v. Myers, WL 1080013 S.C, 2004, the Supreme Court of South Carolina upheld the admissibility of a confession by investigators utilizing The Reid Technique, and also found that there was no error when the trial court limited the testimony of Dr. Saul Kassin.

Court rejects expert testimony on confessions (Dr. Deborah Davis); upholds confession admissibility (Reid Technique)

In the case of People v. Gallo, Dr. Deborah Davis testified for the defense at the suppression hearing (click here for a copy of her Power Point slides) but the court rejected the effort to suppress the confession, stating that the interrogator "used a technique [Reid Technique] he learned in his police training, and his use of it followed what the courts have deemed to be permissible."

Click here for full case


We also have available on the Reid Institute Members Only page monthly legal columns written by Attorney James Manak and Professor Norman Spain.

For information on joining the Institute click > here.

Court Strikes Down Two-Step Interrogation Technique Used to Avoid the Effect of the Miranda Rule.( The following was prepared by Attorney James Manak)

Missouri v. Seibert, 124 S.Ct. 2601, 2004 WL 1431864, No. 02-1371 (2004). Web-accessible at: >

In this case the United States Supreme Court rejected a police interrogation tactic designed to induce suspects to give incriminating statements after purposely delaying Miranda warnings. The tactic, taught in some training courses, has been growing in popularity, and the Court took decisive steps to stop it.

In a 5-4 decision against the interrogation strategy, contained in an opinion by Justice Souter, the Court ruled the technique violates Miranda, although the five justices in the majority did not fully agree on a single rationale by the Court.

The tactic invalidated by the Court involves a procedure whereby the police first question a suspect while withholding the Miranda warnings concerning the right to remain silent and to consult a lawyer before answering questions. In not giving the warnings, the police know that any incriminating statements elicited in this phase of the questioning will be inadmissible in court. The officers then give the suspect a short break before resuming the interrogation, this time with the warnings. In many cases suspects will waive their Miranda rights and then repeat what they had said earlier, prompted by the officers' leading questions and with the knowledge they have already revealed incriminating facts. In commenting on this procedure, the New York Times in an editorial entitled, "An End Run Around Miranda," Dec. 9, 2003, noted that it essentially renders Miranda "meaningless."

The Supreme Court said the answers from the second phase of questioning cannot be used in court, even though Miranda warnings have been given before the second interrogation. It said "by any objective measure [the technique] reveal[s] a police strategy adapted to undermine the Miranda warnings. . . . [I]t would have been unnatural [for the defendant] to refuse to repeat at the second stage what had been said before." 93 S.W.3d 700, affirmed.

Justice Souter stated:
"There are those, of course, who prefer the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, 18 U. S. C. ¤3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States, [530 U.S. 428 (2000)]. Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.

"The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to [the police department in this case]. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. App. 31-32. Consistently with the officer's testimony, the Police Law Institute, for example, instructs that 'officers may conduct a two-stage interrogation. . . . At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.' Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001-Dec. 2003) . . . (hereinafter Police Law Manual) (emphasis in original). The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.

* * *

"Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, 470 U. S. 298 (1985), but the argument disfigures that case. In Elstad, the police went to the young suspect's house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect's mother, while the other one joined the suspect in a 'brief stop in the living room,' id., at 315, where the officer said he 'felt' the young man was involved in a burglary, id., at 301 (internal quotation marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room 'was not to interrogate the suspect but to notify his mother of the reason for his arrest,' id., at 315, and described the incident as having 'none of the earmarks of coercion,' id., at 316. The Court, indeed, took care to mention that the officer's initial failure to warn was an 'oversight' that 'may have been the result of confusion as to whether the brief exchange qualified as "custodial interrogation" or . . . may simply have reflected . . . reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent's mother.' Id., at 315-316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314-315. In holding the second statement admissible and voluntary, Elstad rejected the 'cat out of the bag' theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda, determined the character of the later, warned confession, Elstad, 470 U. S., at 311-314; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was 'speculative and attenuated,' id., at 313. Although the Elstad Court expressed no explicit conclusion about either officer's state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally. See Elstad, supra, at 309 (characterizing the officers' omission of Miranda warnings as 'a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will'); 470 U. S., at 318, n. 5 . . .

"Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert's postwarning statements are inadmissible. . . ."

It should be noted that the Court also acknowledged that the majority of law enforcement trainers have not advocated the questionable interrogation technique used in this case, among them John E. Reid & Associates, Inc., of Chicago, Illinois.

Footnote 2:
"It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e.g., C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); John Reid & Associates, Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad, 470 U. S. 298 (1985), involved an officer's good-faith failure to warn. See, e.g., Inbau, Reid, & Buckley 241 (Elstad's 'facts as well as [its] specific holding' instruct that 'where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, . . . corrective measures . . . [can] salvage an interrogation opportunity')."

Justice Souter's opinion was joined by Justices Stevens, Ginsburg and Breyer.

Justice Kennedy wrote separately in agreement with the result. He said the admissibility of postwarning statements should continue to be governed by Elstad's principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made. Such measures should be designed to ensure that a reasonable person in the suspect's situation would understand the importance and effect of the Miranda warning and waiver. He said, for example, a substantial break in time and circumstances between the prewarning statement and the warning may be sufficient in most instances, as may an additional warning explaining the likely inadmissibility of the prewarning statement. Because no curative steps were taken in this case, the postwarning statements were inadmissible.

It should be noted, however, that the Kennedy opinion represents only his view and the Souter opinion is, in effect, the rule of the case.

The Chief Justice and Justices O'Connor, Scalia and Thomas dissented.

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2nd Circuit Rules Alcoholics Anonymous Confession Not Privileged
New York Law Journal

Confessions made at an Alcoholics Anonymous meeting that helped convict a man of manslaughter fall outside of New York's cleric-congregant privilege because the statements were not made to obtain spiritual guidance, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. Paul Cox confessed to at least seven AA members that he had killed two people, and he was later convicted for the brutal stabbing deaths.

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Confession Ruled Inadmissible

In the case of People v. Fuentes B184728 Court of Appeal, Second District, California July, 2006, the court found that:

Defendant next argues that improper promises and threats during the interview, both express and implied, rendered his ultimate confession involuntary as the product of coercive police activity. In making this argument, defendant focuses on exhortations that even good people can do bad things while intoxicated and that defendant's not being in his "right state of mind" when the incident happened would "help" him. In addition, defendant was told that not confronting the situation would be "worse" for him, if defendant lied the case would go "very, very bad" for him, and if defendant kept quiet he could be charged "for something more serious, very ugly." Conversely, if a person tells the truth "it goes much better for them" and "the charges are lowered - a little." Finally, at least one and one-half hours after the interview started, defendant was given the alternative of spending either "the rest of [his] life" or "five or six years" in jail. He then confessed.

In addressing the issue of voluntariness, the trial court concluded that under the totality of the circumstances the "latitude" taken by the police in questioning defendant was permissible. Based on our independent review of this legal issue, we reach the opposite conclusion (and therefore do not need to analyze the separate issue of defendant's Miranda waiver).

If in addition to a benefit that might naturally flow from honest answers during interrogation " 'the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear. [Citations.]' " ( People v. Cahill (1994) 22 Cal.App.4th 296, 312, fn. omitted.) For example, in Cahill the defendant's statements were rendered involuntary because they given in response to representations that the defendant could avoid a charge of first degree murder if he would admit certain facts to dispel the implication that the murder was premeditated. ( People v. Cahill, supra, 22 Cal.App.4th at p. 314.) In People v. McClary (1977) 20 Cal.3d 218, 229, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478, 509-510, footnote 17, a confession was found involuntary where "the officers repeatedly branded defendant a liar, and advised her that unless she changed her statement and admitted the true extent of her complicity, she would be charged as a principal to murder···· In addition ···, the officers strongly implied that if defendant changed her story and admitted mere 'knowledge' of the murder, she might be charged only as an accessory after the fact." In People v. Neal (2003) 31 Cal.4th 63, 84-85, the interrogating officer, using a metaphor of a Greyhound bus, threatened to drop the defendant off closer to Timbuktu than to home if he did not cooperate and "promised defendant, if he did cooperate, to make it as good for him as he could." ( Id. at p. 85.)

Implied promises and threats of a similar coercive nature were also made here. But we need not dwell on implications of the officers' statements during the interrogation. If there had been any question about the existence of coercion, it was dispelled with the coup de grace of offering to defendant the choice of five or six years, or spending the rest of his life in jail. In People v. Denney (1984) 152 Cal.App.3d 530, 544, a "hypothetical about a triggerman in an accidental felony murder getting five years in prison was an extremely heavy-handed suggestion of leniency that clearly motivated appellant's decision to confess." No hypotheticals were needed here. After persistent resistance to providing his interrogators with the information they wanted, defendant cooperated immediately upon being presented with the eminently attractive, albeit legally fallacious possibility, of spending five or six years by confessing to a murder that he had been assured had been witnessed by others, thereby sealing his fate regardless of what he said. As such, the requisite causal connection between the deception and the confession were well established. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) The trial court erred in ruling that the People had met their burden of proving the confession voluntary and allowing it into evidence at trial."

Given this decision it is a reminder that interrogators should avoid such statements as "not confronting the situation would be "worse" for him, if defendant lied the case would go "very, very bad" for him, and if defendant kept quiet he could be charged "for something more serious, very ugly." Conversely, if a person tells the truth "it goes much better for them" and "the charges are lowered - a little." The interrogator should certainly avoid such statements as "offering the defendant the choice of five or six years, or spending the rest of his life in jail."

As we point out in our book, Criminal Interrogation and Confessions the alternative question should never consist of two choices of punishment or a promise of leniency, but rather an auxiliary aspect of the crime - "Did you plan this out for a long period of time or did it just happen on the spur of the moment?"

State v. Johnson, 615 S.E.2d 163 (Ga.App. 2005)

A police office improperly offered a "hope of benefit" to induce defendant's incriminating statements by telling defendant that she would be held in jail for one year without any opportunity for bond if she did not confess, but that if she did confess, she would be released the next day.

Voluntariness: Length of Interrogation
34:3, p. 9. A confession after a waiver of Miranda rights was not involuntary, despite the fact that it was made after 18 hours of interrogation. People v. Weeks, 789 N.Y.S.2d 373 (N.Y.App. 2005).

Voluntariness: Promises of Leniency
34:2, p. 10. A defendant's confession to third-degree sexual assault, made after he took a polygraph test, was voluntary even though the police officers repeatedly told defendant, before he took the test and before he confessed, that probation was a possible punishment. Wilkins v. State, 2005 WY 2, 104 P.3d 85 (Wyo. 2005).

34:2, p. 10. An interrogating officer did not make an improper promise of leniency by advising the defendant that his cooperation in the investigation would benefit defendant during the judicial process. People v. Ramos, 18 Cal.Rptr.3d 167 (Cal.App. 2004).

34:2, p. 10. Statements by police detectives during an interview that they wanted to know the truth and that, if in fact all of defendant's acts with a minor victim were consensual, that was what they wanted to hear, did not constitute a "hope of benefit." Getkate v. State, 604 S.E.2d 611 (Ga.App. 2004).

34:3, p. 9. A police detective's repeated statement to a defendant that "if you didn't pull the trigger, you won't be in any trouble" was considered a promise of leniency and rendered defendant's confession involuntary. State v. McCoy, 692 N.W.2d 6 (Iowa 2005).

34:5, p. 9. "You can help yourself by acceptance of responsibility and giving substantial assistance" was not a promise of leniency. United States v. Mashburn, 406 F.3d 303 (4th Cir. 2005).

Wilkins v. State, 2005 WY 2, 104 P.3d 85 (Wyo.2005)

A defendant's confession to third degree sexual assault, made after he took a polygraph test, was voluntary even though the police officers repeatedly told the defendant that probation was a possible punishment. "...While a confession resulting from a direct or indirect promise of lenience is inadmissible, a police officer's statement to a suspect that cooperating is in his or her best interest is not improperly coercive and does not, as a matter of law, render a confession involuntary..."
See for details.

People v. Ramos, 18 Cal.Rptr.3d 167 (Cal.App. 2004)

An interrogating officer did not make an improper promise of leniency by advising the defendant that his cooperation in the investigation would benefit defendant during the judicial process.
See for details.

Getkate v. State, 604 S.E.2d 611 (Ga.App. 2004)

Statements by police detectives during an interview that they wanted to know the truth and that, if in fact all of the defendant's acts with a minor victim were consensual, that was what they wanted to hear, did not constitute a "hope of benefit" within the meaning of a statute providing that a confession is admissible if it was made voluntarily and without the slightest hope of benefit.
See for details.

Commonwealth v. Novo, 442 Mass. 262, 812 N.E.2d 1169 (Mass. 2004)

A defendant's confession to first degree murder, relating to the death of a two-year old child of his girlfriend, was ruled involuntary. The police repeatedly used a "now-or-never" theme in their interrogation technique. This technique involved telling the defendant, untruthfully, that if he did not explain now why he hit the child, the jury would never hear his explanation later. While this statement was grossly improper, the court said a statement that if the defendant did not tell the police his side of the story now, he would not be able to tell the Police later, would be proper.
See for details.

Boggans v. State, 867 So.2d 279 (Miss.App. 2004)

A police officer's statement to defendant that the voluntary nature of any statement he made would be reported to the district attorney's office did not render defendant's incriminating statement involuntary.
See for details.

State v. Ramsey, 844 A.2d 715 (R.I. 2004)

A written confession to the crime of child molestation was voluntary, even though police detectives used the "good cop, bad cop" routine during the interrogation, with one detective adopting an angry and accusatory demeanor and yelling at defendant and another officer then coming into the interrogation room and befriending the defendant.
See for details.

State v. Werner, 2003 UT App. 268, 76 P.3d 204 (Utah App. 2003)

The use of the "false friend technique" by a police officer when interviewing a defendant was ruled not coercive and thus did not render the defendant's confession involuntary, where at the time of arrest and interrogation, defendant was 25 years old, had an extensive criminal record, and had served over 2 years in state prison, and defendant's learning disabilities and below-average levels of functioning did not render him susceptible to the false friend technique.
(see > for additional details)

United States v. Alcarez-Mora, 246 F.Supp.2d 1146 (D.Kan. 2003) - An alien defendant was coerced into admitting his involvement in drugs, requiring suppression of statements made to the police, when an interrogating officer told defendant he would never see his children again unless he cooperated with the authorities. (For details see Law Enforcement Legal Review - July/August 2003

Loredo v. State, 836 So.2d 1103 (Fla.App. 2003) - This court ruled that an interrogating officer's comments to a defendant that the officer would be presenting the matter to the state attorney's office and to a judge were not statements suggesting leniency, so as to suggest the use of coercion to obtain a confession, since there was no explicit suggestion of leniency and the evidence failed to establish an express quid pro quo bargain for a confession. (For details see Law Enforcement Legal Review - May/June 2003 > R.. v.Oickle, 2000 SCC 38

In this case the Canadian Supreme Court found that a sympathetic and understanding demeanor by the investigator during an interrogation was completely appropriate; that trickery and deceit as used in this interrogation (theme development) do not render a confession inadmissible; and provided a tangible test to differentiate an implied promise of leniency, as may be perceived by the suspect, to the impermissible tactic of offering a quid pro quo threat or promise. For a detailed discussion of this case, see our article, The Reid Technique of Interrogation.

Simmons v. Bowersox, 235 F.3d 1124 (8th Cir. 2001)

In this decision the Eighth Circuit affirmed the fact that police officers may obtain statements from suspects by claiming not to believe their denials, and that tactics such as deception and raised voices do not render a confession involuntary unless the overall impact of the interrogation caused a particular defendant’s will to be overborne.

The court also examined the issue of promises and said that a promise made by a police officer is a relevant consideration in assessing police conduct, but that it is only one circumstance to be considered and does not render a confession from the suspect involuntary per se.

Furthermore, the court found that a statement to the suspect that telling the truth “would be better for him” does not constitute an implied or express promise of leniency that would render his confession involuntary.

And finally, a truthful and non-coercive statement by the police of the possible penalties facing a suspect may be given without overbearing the suspect’s free will, even when the suspect is a minor.

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State v. Williams, 697 N.W.2d 273 (Neb. 2005)

Miranda warnings read to a defendant were adequate, even though they were not read exactly as written on the Miranda advisory form. The police officer did not read the final question on the form asking, "Knowing your rights in this matter, are you willing to talk to me know?," but instead, asked defendant if he was going to talk about the fire under investigation and answer questions, to which defendant answered, "Yeah."

People v. McMahon, 31 Cal.Rptr.3d 256 (Cal.App. 2005)

A defendant did not invoke his right to counsel during police questioning by asking an officer regarding a written waiver form "If I sign this would I be able to make a phone call to get my lawyer," which was an ambiguous and equivocal reference to his constitutional rights.

United States v. Peterson 414 F.3d 825 (7th Cir. 2005) The suppression of a defendant's confession was not warranted, although federal agents' 50-minute long summary of the evidence against him before the agents administered Miranda warnings and obtained defendant's waiver was allegedly a form of interrogation because it was designed to provoke a response, but defendant did not make any pre-warning statement.

State v. Anderson, 117 P.3d 762 (Alaska App. 2005)

The court ruled that Miranda normally does not apply to situations where the police send a "false friend" to elicit statements from a defendant in jail. The court said Miranda is intended to counteract the danger of coercion resulting from the interaction of custody and official interrogation, and when a suspect does not know that he or she is conversing with a government agent, such pressure does not exist.

Miranda: Invocation of Rights
34:2, p. 8. Suspect's statement, "if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing," was not an unambiguous request for counsel. People v. Gonzalez, 23 Cal.Rptr.3d 295, 104 P.3d 98 (Cal. 2005).

34:4, p. 8. "But, excuse me, if I am right, I can have a lawyer present through all of this, right?" was not an unambiguous request for counsel. United States v. Younger, 398 F.3d 1179 (9th Cir. 2005).

34:5, p. 8. A statement by a defendant during a police interview, "I don't know if I should speak to you," was not a clear invocation of his right to remain silent. State v. Hassel, 696 N.W.2d 270 (Wis.App. 2005).

34:5, p. 9. "Where's my lawyer at?"; "I don't want to talk no more 'cause you're talking some crazy s-t now," was not invocation of rights. State v. Ash, 611 S.E.2d 855 (N.C.App. 2005).
v 34:6, p. 5. A defendant's question to the officers during an interview, prior to an attempted robbery and murder prosecution, asking whether defendant was required 'to talk about this right now,' did not amount to an invocation of his right to remain silent. People v. Castille, 29 Cal.Rptr.3d 71 (Cal.App. 2005).

34:6, p. 5. A defendant's statement, "I'll get a lawyer," was not an affirmative request for an attorney, and his subsequent statements to police were admissible in a murder prosecution. Commonwealth v. Auclair, 444 Mass. 348, 828 N.E.2d 471 (Mass. 2005).

Miranda: Mid-Interrogation Warnings
34:2, p. 8. A mid-interrogation Miranda warning that was administered after defendant's unwarned confession to possessing drugs during a traffic-related arrest was ineffective and rendered subsequent statements inadmissible at trial. Crawford v. State, 100 P.3d 440 (Alaska App. 2004).

Miranda: Readvisement of Rights
34:2, p. 9. Readvising a defendant of his Miranda rights was not required when a clinical psychologist began his interview of him "a few minutes" after a police officer first interviewed defendant. People v. San Nicolas, 21 Cal.Rptr.3d 612, 101 P.3d 509 (Cal. 2004).

Several new Miranda decisions have been issued. For details, please go to the Law Enforcement Legal Review web page at

Missouri v. Seibert, 124 S.Ct. 2601, 2004 WL 1431864, No. 02-1371 (2004)

In this cast the United States Supreme Court rejected a police interrogation tactic designed to induce suspects to give incriminating statements after purposely delaying Miranda warnings. It should be noted that the Court also acknowledged that the majority of law enforcement trainers have not advocated the interrogation techniques used in this case, among them John E. Reid and Associates, Inc.

United States v. Lockett, 393 F.3d 834 (8th Cir. 2005)

A suspect who was not handcuffed while sitting in the back seat of a squad car with its doors open, asked police officers whether "this" was "about that shotgun thing last week" and commented that he had a gun. These statements were ruled voluntarily made and not the product of police interrogation, and thus there was no violation of Miranda.
See for details.

People v. Coffman, 17 Cal.Rptr.3d 709, 96 P.3d 30 (Cal. 2004)

The awareness of law enforcement officers of possible connections between a murder and rape of one victim and a second possible victim, who had been reported missing, excused the officers from not stopping their interrogation of two suspects after the second possible victim had been missing for a week, in spite of the fact that suspects invoked their Miranda rights. The court reasoned that the passage of time lessened, but by no means eliminated, the possibility that the second victim might still be alive, and thus the "rescue doctrine" permitted continued interrogation of the suspects.
See for details.

People v. Aguilar-Ramos, 86 P.3d 397 (Colo. 2004)

A Spanish-speaking defendant was not adequately advised of his Miranda rights by a police detective during custodial interrogation, mainly because of the detective's lack of proficiency in Spanish. The court found that because of the language barrier, defendant was unable to understand his rights, and his waiver, which could not have been knowing and intelligent, was constitutionally insufficient.
See for details.

State v. Alley, 841 A.2d 803 (Me. 2004)

A defendant's invocation of his right to counsel was ambiguous when he stated twice, "that means I should wait until I see a lawyer." But after a police officer continued to explain to defendant his right to decide whether to answer questions with or without counsel, his response was, "I'll talk to you." He then signed a waiver form and confessed.
See for details.

State v. Brown, 796 N.E.2d 506 (Ohio 2003)

A statement by defendant during custodial interrogation, "don't I supposed to have a lawyer present," was ruled not an unequivocal assertion of the right to counsel such that the police were required to cease their questioning until counsel was present. (see
> for additional details)

Non-custodial Interrogation

Chavez v. Martinez, 123 S.Ct. 1994, 2003 WL 21210419, No. 01-1444 (2003) - In this case a fight ensued after police officers investigating suspected narcotics activity conducted a patdown frisk of the plaintiff and discovered a knife in his waistband. The plaintiff was shot by the police several times. While in a hospital emergency room, he was interviewed by the defendant, a patrol supervisor, and he admitted that he took a gun from an officer's holster and pointed it at the police. At no time was plaintiff given Miranda warnings. He was never charged with a crime, nor were his answers ever used against him in any criminal prosecution.

Plaintiff filed a civil rights action, alleging that the officer's action's violated his Fifth Amendment right against compelled self-incrimination and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The district court denied qualified immunity to the officer and the Ninth Circuit affirmed the district court's denial of qualified immunity.

The United States Supreme Court reversed in a 5-4 decision. (For details see Law Enforcement Legal Review - July/August 2003

Bedoya v. State, 26 FLW D434, 5th DCA February 16, 2001

Bedoya was a suspect in the murder of a female high school student. A police investigator called Bedoya and said he wanted to talk to him about the killing. Bedoya agreed to go to the sheriff's department but needed a ride. Two deputies picked him up at his house and drove him to the department. The investigator specifically told him that, "You need to go to the restroom, you need ...want water or anything like that, just give us a holler here. We'll stop ...You know that you are not under arrest and that at anytime you want to just walk out of here, you can walk out of here." Bedoya eventually confessed to the murder. Prior to the trial, he moved to suppress the confession because he was not given his Miranda warnings.

The appellate court ruled the confession was admissible. They held that he was not in custody at the time and therefore Miranda warnings were not required. The court I this case stated that the custody should be determined by four factors:

The manner in which the police summon the suspect for questioning;
The purpose, place, and manner of the interrogation;
The extent to which the suspect is confronted with evidence of his guilt; and
Whether the suspect is informed that he or she is free to leave.

Applying these factors to the present case, the court decided the suspect was not in custody. The fact that the investigator may have intended to place the subject under arrest if he obtained a full confession did not render the setting "custodial" for purposes of Miranda.

Asking for an Attorney - the Police Response

State v. Seaton, 26 FLW D273, 5th DCA January 26, 2001

A Florida Supreme Court decision, Almeida v. State, held that whenever a suspect during a custodial interview asks an equivocal question about the necessity of having an attorney present, the law enforcement officer must provide an answer. However, the court did not provide any guidance about what kind of answer would be appropriate. The Fifth DCA has provided some guidance in the case of State v. Seaton.

In this case the defendant, Jason Seaton, was being interviewed about a murder. Prior to the beginning of the actual interview, Seaton asked the detective, "Should I have a lawyer with me?" The detective responded, "That's something I can't tell you. That's a decision that you make, not me. Obviously, if you want a lawyer, you have that right. In line with that, I was about to read you your Miranda Rights. If you want, you know, you got any questions after that, we'll deal with that. But I cannot give you that advice. I mean that's legal advice." Later on the officer added, "If you wanna talk to us...if you wanna talk to us with a lawyer or without a lawyer, that's up to you." The suspect eventually confessed. His lawyer moved to suppress the confession y arguing that there is only one correct answer to the question posed by his client - "yes!" The trial judge agreed and suppressed the confession.

The appellate court reversed and held that the confession was admissible. The court ruled that the answer given by the detective under the facts of this case met the requirements for a response as required in the Almeida case.

The detective provided a fair response - noting he could not make the decision for the subject and clearly indicating the subject could have an attorney if he wished, but that it was the subject's choice to make. It would appear that these elements of the response (Fairness: "I can't decide for you;" reminding the subject of his right to an attorney and "It is your decision.") went a long way in helping the 5th DCA approve what the detective did.

Miranda: Necessary in a State Psychiatric Hospital?

State v. Stott, 794 A.2d 120 (N.J. 2002)

Defendant, who was a patient in a state psychiatric hospital that employed its own police officers, was in custody when he gave incriminating statements during police interviews, and therefore, since he had not been given Miranda warnings, his statements were subject to suppression. See > for details.

Miranda: What Constitutes Interrogation?

State v. Payne, 44 P3d 419 (Kan. 2002)

A murder suspect's statement to the police during his arrest, asking if the alleged victim was dead, was admissible without Miranda warnings. The court said the statement was not the result of interrogation and was made

voluntary. See > for details. Miranda: What Constitutes a Request for an Attorney?

Lemmons v. State, 75 S.W. 3d 513 (Tex. App. 2002)

When defendant, in custody, said he would be more than willing to talk to the police tomorrow "or until I can get a lawyer," this was not an unambiguous invocation of his right to counsel during custodial interrogation and police, therefore, did not have to refrain from interrogation or even ask the defendant to clarify his intentions concerning counsel. See > for details.

Miranda: What Effect Does Telling a Suspect the Possible Sentence Have on the Voluntariness of his Statements?

United States v. Okafo, 285 F.3d 842 (9th Cir. 2002)

The defendant was arrested after a search of his luggage at an airport turned up cocaine. The court held that he waived his Miranda rights voluntarily, even though the customs agent told him that he faced a 10 to 20 year sentence and that cooperation could help him avoid a lengthy prison sentence.

Even if this were considered an "inducement," it was not sufficiently compelling to overbear the defendant's will in light of the totality of circumstances. See
> for details.

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34:4, p. 8. Following the standard Miranda warnings is adequate; nothing more need be added. State v. Foust, 105 Ohio St.3d 137, 823 N.E.2d 836 (Ohio reported 2005).

34:5, p. 8. A defendant's statement to police officers was not obtained in violation of his Miranda rights, despite a 20-hour lapse between an officer's reading of the Miranda warnings and an interrogation in a police car. United States v. Pruden, 398 F.3d 241 (3rd Cir. 2005).

34:6, p. 5. Officer's statement that he did not want to violate the law did not invalidate Miranda warnings. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).

Hart v. Attorney general of State of Florida, 323 F.3d 884 (11th Cir. 2003) - Waiver of counsel during a custodial interrogation was ruled the result of police deception and not made with full awareness of both the nature of the right being waived and the consequences of a waiver. Although a police detective went to great lengths to apprise defendant of his Miranda rights before defendant signed a written waiver form, the defendant had asked for clarification of his right to counsel, and the detective responded by telling him that the disadvantage of having a lawyer present was that a lawyer would tell him not to answer incriminating questions, and that "honesty wouldn't hurt him." (For details see Law Enforcement Legal Review - July/August 2003

State v. Murphy, 91 Ohio St. 3d. 516, 747 N.E. 2d 765 (Ohio 2001)

A suspect was advised of his Miranda rights and acknowledged that he understood them. At this point he spoke freely with the police officer even though there was not a formal waiver of the rights. The court ruled that the suspect's behavior indicated that he had implicitly waived his rights.

State v. Corbin, 61 Conn. App. 496, 765 A.2d 14 (Conn. App. 2001)

A suspect was asked to voluntarily accompany a police officer to the station house where the suspect was interviewed. The suspect was not restrained in any way (handcuffs, etc.) and, while in the police vehicle, the officer told the suspect that he was free to leave. After arriving at the station the officer read the suspect his Miranda rights and again told him that he was free to leave.

In an effort to suppress statements made to the officer, the suspect claimed that he gave an improper waiver of his Miranda rights. The court declined to review the claim because the suspect was not in custody and, therefore, the issuance of Miranda warnings was not required. In part the court stated, "A reasonable person would not have believed that he was in custody when < told repeatedly that he may feel free to leave before any questioning."

It is important to note that the defendant was not arguing that his constitutional rights were violated, e.g., the right to remain silent and the right to an attorney. A suspect has these rights regardless of whether or not he is taken into custody. This court was impressed with the officer's repeated mention that the suspect was free to leave. It is our suggestion, during non- custodial interviews that the suspect sign a written form attesting to the fact that he is not under arrest and is free to leave the building at any time.

United States v. Smith 223 F. 3d 554 (7th Cir. 2000)

The government's logical contention that Miranda warnings must have been properly issued because investigators would not jeopardize an investigation by giving inadequate warnings was not found to be adequate proof that the warnings were properly administered.

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34:2, p. 9. There was no violation of a defendant's constitutional right to counsel by the police speaking to him about a murder victim's disappearance, despite counsel's instruction to the police to have no contact with defendant concerning their investigation into the disappearance of the victim.. Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233 (Mass. 2005).

Sixth Amendment Right to Counsel:
34:4, p. 9. A violation of defendant's Sixth Amendment rights by police officers by deliberately eliciting information from him after he was indicted, without either counsel or waiver of counsel, did not require suppression of defendant's post-Miranda statements as fruit of the poisonous tree. United States v. Fellers, 397 F.3d 1090 (9th Cir. 2005).

Sanders v. State, 835 So.2d 45 (Miss. 2003) - A murder defendant waived his right to counsel by reinitiating a conversation with the sheriff while the two were riding in the sheriff's car, and therefore his confession was admissible at trial. The defendant reinitiated the conversation with the sheriff by discussing his charges and the possible punishment he could receive.

"The United States Supreme Court and this court have consistently held when a suspect invokes his right to counsel, all interrogation must cease until the lawyer is present, unless the suspect himself reinitiates communication with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.378 (1981)... (For details see Law Enforcement Legal Review - July/August 2003

People v. Hurd, 719 N.Y.S. 2d 752 (N.Y. App. 2001)

While being questioned about alleged sex offenses, the suspect initially said that he did not know if he needed an attorney, and then later, during questioning, placed a one-minute cellular call to his attorney's office, but did not indicate that he wanted an attorney in subsequent calls to his wife and father. Since the suspect did not unequivocally invoke his right to counsel, his statements were held to be admissible.

People v. Chapman, 2000 Ill, LEXIS 1719 (Ill. 2000)

A homicide suspect was arrested and given his Miranda rights, which he waived. During the course of questioning the investigating officer received a telephone call from a male claiming to be the suspect's attorney. The officer refused to talk to the man without any verification of who he was. By the time the attorney arrived in person at the police station, the suspect had confessed. The Illinois Supreme Court ruled that the suspect had already waived his right to counsel and that the police are not required to forward telephone messages from an attorney to their client. Accurate documentation of the time that the suspect waived his Miranda rights, the time of the phone call, the time of the confession and the time the attorney presented himself at the police station were important considerations in upholding this confession.

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34:1, p. 7. A defendant was in custody for Miranda purposes when he gave statements to a police officer while on a stretcher in a hospital, even though he had not been placed under arrest. Mayberry v. State, 600 S.E.2d 703 (Ga.App. 2004).

34:2, p. 7. A defendant was not "in custody," after being asked by the police to exit the car in which he was a passenger, but prior to his formal arrest. United States v. Teemer, 394 F.3d 59 (1st Cir. 2005).

34:2, p. 7. Defendant was not "in custody" when he made statements to a police officer at a hospital, and thus Miranda warnings were not required. State v. Guzman-Gomez, 690 N.W.2d 804 (Neb. App. 2005).

34:2, p. 7. A defendant was not "in custody" during a stand off with the police when he made statements to a police detective. Campbell v. State, 820 N.E.2d 711 (Ind.App. 2005).

34:3, p. 7. A police officer who was offered a bribe after he arrested defendant did not violate the defendant's Miranda rights by wearing a recording device and trying to get defendant to repeat the bribe offer on the tape. People v. Flynn, 789 N.Y.S.2d 33 (N.Y.App. 2005).

34:3, p. 8. A defendant was not "in custody" for Miranda purposes when police questioned her at her home. Morales v. United States, 866 A.2d 67 (D.C. 2005).

34:5, p.7. Nine-hour detention constituted Miranda "custody."People v. Pascual, 111 P.3d 471 (Colo. 2005).

34:5, p. 7. Lack of formal arrest and existence of informal atmosphere negated Miranda custody. Rosky v. State, 111 P.3d 690 (Nev. 2005).

Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003) - Miranda "custody" was not found during a po0lice interrogation concerning a murder, even though the defendant was transported to a police station for an interview in a police car, the interview lasted over 4 hours, and he was arr4ested by a parole officer for a parole violation following the interview. (For details see Law Enforcement Legal Review - May/June 2003

U.S. v. Hanson, 2001 WL 66401 (8th Cir. 2001)

Government agents wanted to question an arson suspect in their office. To persuade the suspect to come to their office the agents informed him that they merely wanted to show the suspect photographs of some recent vandalism. Once inside the agent's office the suspect was interviewed and interrogated without being given Miranda warnings. U.S. attorneys argued that this tactic was merely subtle subterfuge. However, the court ruled that this was a deceptive stratagem and that the suspect was in custody and, therefore, should have been given his Miranda rights before any questioning.

State v. Tucker, 763 A. 2d 1058 (N.H. 2001)

While in custody the defendant made a spontaneous, non-solicited bribe offer. This was ruled admissible as a volunteered statement

Commonwealth v. Sparks, 433 Mass. 654, 746 N.E. 2d 133 (Mass. 2001)

The suspect voluntarily accompanied police to the police station and was told that he was free to leave at any time. After the suspect made incriminating statements during an interview at the police station he was allowed to leave the station. The court ruled that no Miranda warnings were required in this instance because it was not a custodial interrogation.

U.S. v. Turner, 761 A. 2d 845 (D.C. 2000)

A suspect was served with a search warrant to collect biological samples from his body. During this process the suspect was questioned without being given his Miranda rights. The court ruled that because of the search warrant the suspect was not free to leave and, therefore, was in custody. Miranda rights should have been given and waived prior to any police questioning.

United States v. Melendes, 228 F. 3d 19 (1st Cir. 2000)

The defendant was a subpoenaed witness in another defendant's case and was questioned during testimony offered during a trial. This circumstance was not ruled as "custodial questioning" and, therefore, no Miranda warnings were required.

Commonwealth v. Larkin 429 Mass. 426, 708 N.E. 2d 674 (1999)

It is not uncommon for police to want to interview an inmate who is already incarcerated at a correctional facility. Under such a circumstance, clearly the inmate is "in custody" in the sense that he is not free to leave the facility. The general guideline that Miranda warnings are required during custodial questioning therefore suggests that all interviews of incarcerated inmates should be preceded with the appropriate Miranda warnings and waivers. However, this decision places a more clear interpretation on the meaning of custody. The court upheld statements made by an incarcerated inmate who was questioned by two state troopers even though the inmate was not advised of his Miranda rights.

In upholding the incriminating statements, the court found that the inmate was "not in control of the troopers who were interrogating him." Some of the factors the court considered in reaching this conclusion were:
The interview addressed an issue unrelated to the one for which the inmate was incarcerated;

The interview was conducted in a room normally used for attorney conferences an not in the inmate's cell;

The inmate was told that the interview was voluntary and signed a statement consenting to be voluntarily interviewed;

The inmate was clearly told that he could end the interview at any time by simply signaling the guard outside the door.

The concept of equating custody to "being in control of an investigator" was relied upon heavily in this decision. It reiterates an important recommendation we make during our seminars: an interview is either custodial or non-custodial. If it is custodial Miranda warnings are required. If it is non-custodial, the subject should be told that the interview is voluntary, and that he can leave the interview room at any time. Ideally, this should be documented by the subject signing a consent to voluntary interview form.

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Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005)

A police officer's rhetorical comment and question to a defendant while the defendant was I handcuffs in a police cruiser, which were, "You seem pissed off" and "Are you having a rough day, man?" were not the functional equivalent of interrogation, not likely to elicit an incriminating response, and therefore, Miranda warnings were not required.

34:1, p. 8. A police detective's statement after defendant's arrest, that the detectives "knew" that defendant committed a murder "because they found his fingerprints at the scene of the crime" did not call for an incriminating response. People v. Haley, 17 Cal.Rptr.3d 877, 96 P.3d 170 (Cal. 2004).

34:1, p. 8. The conduct of a police officer in stating "so do I," in response to a statement from a murder defendant that defendant knew where a cap that was admitted into evidence against him at trial came from, was not reasonably likely to elicit an incriminating response. State v. Jackson, 600 S.E.2d 16 (N.C.App. 2004).

34:1, p. 8. The defendant's attempted bribe of a police officer was not made in response to police interrogation or its functional equivalent. United States v. Hunt, 372 F.3d 1010 (8th Cir. 2004).

34:1, p. 8. An FBI agent's statement that it was defendant's "last chance to cooperate" was interrogation. United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004).

34:2, p. 8. Telling a suspect that police were "looking for him" when he asked why they were in his apartment was not "interrogation." United States v. Lockett, 393 F.3d 834 (8th Cir. 2005).

34:2, p. 8. Telling a suspect on his way to an arraignment that it was his "last chance to cooperate" was Miranda interrogation. United States v. Padilla, 387 F.3d 1087 (9th Cir. 2004).

34:3, p. 8. Telling a suspect police wanted to tell him "the situation, and explain the charges against him" was not Miranda interrogation. United States v. Wipf, 397 F.3d 677 (8th Cir. 2005).

34:4, p. 9. Request to provide DNA samples after arrestee's invocation of right to counsel was not Miranda interrogation. Everett v. State, 893 So.2d 1278 (Fla. reported 2005).

34:5, p. 8. Police officers reading an affidavit of a complaint to a defendant was considered the functional equivalent of interrogation. State v. Sawyer, 156 S.W.3d 531 (Tenn. 2005).

United States v. Guerra, 237 F.Supp.2d 795 (Mich. 2003) - A police officer violated the right of a defendant not to incriminate himself when, approximately one half hour after defendant asserted his right to remain silent the officer presented him with a written statement of an accomplice and invited defendant to discuss the case. (For details see Law Enforcement Legal Review - May/June 2003

People v. Baird, 66 P.3d 183 (Colo.App. 2002) - A state trooper's asking a defendant "what happened" after the trooper responded to a deputy sheriff's call for assistance was part of an "investigation" and not "interrogation" for purposes of Miranda. The court noted that the deputy sheriff, who was seeking assistance, had been slashed by a sword and the state trooper's inquiry after arriving at the scene was part of an on-the-scene investigation that is ordinarily not covered by Miranda. (For details see Law Enforcement Legal Review - May/June 2003 >

People v. Jones, 786 N.E.2d 243 (Ill.App. 2003) - A statement by a police officer to a defendant that he had found a handgun in the car defendant was driving was not "interrogation" and therefore did not require Miranda warnings. The court said the statement was purely informational and not intended to elicit an incriminating statement.

(For details see Law Enforcement Legal Review - July/August 2003

State v. Bryant, 624 N.W. 2d 865 (Wis. App. 2001)

The court hound that when defendant answered the police questions about his residence the information he provided was admissible under the routine booking exception of Miranda, even though no Miranda warnings were given to him when he was arrested for possession of cocaine with intent to deliver. The court found that by asking routing booking questions the officer was not engaging in interrogation intended to elicit an incriminating response.

Murrell v. State, 747 N.E. 2d 567 (Ind. App. 2001)

During a booking procedure a jailer asked the defendant whether or not he had any scars. Even though the defendant had not been issued Miranda warnings, his answer to this question was later used as evidence against him. The court ruled that Miranda warnings were not required in this instance under the booking exception.

People v. Peracchi, 102 Cal. Rptr. 2d 921 (Cal App. 2001)

The court found that the police acted improperly when they asked the suspect why he did not want to talk to the officers after being advised of his Miranda rights. Even though his initial waiver was ambiguous, the defendant's intent to remain silent became clear through further questioning. The court said that, "Officers have no legitimate need or reason to inquire into the reason why a suspect wishes to remain silent...Once Peracchiinvoked his right to remain silent, the officer was required to cease questioning."

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Miranda: Rescue Doctrine
34:2, p. 9. Interrogating suspects about a missing possible murder and rape victim was permissible even though Miranda rights had been invoked by the suspects. People v. Coffman, 17 Cal.Rptr.3d 709, 96 P.3d 30 (Cal. 2004).

34:1, p. 9. Asking defendant about the whereabouts of a possible domestic violence victim did not require a Miranda warning. Commonwealth v. Sepulveda, 855 A.2d 783 (Pa. 2004).

34:6, p. 5. 911 domestic violence call was an "emergency" justifying inquiries without Miranda warnings. United States v. Martinez, 406 F.3d 1160 (9th Cir. 2005).

34:4, p. 8. Asking a drug arrestee about recent drug use was not part of the booking exception to Miranda. People v. Hernandez, 790 N.Y.S.2d 356 (Dist.Ct. reported 2005).

Dyson v. United States, 815 A.2d 363 (D.C. 2003) - A police officer had an objectively reasonable basis to suspect that defendant had been carrying a gun and that a gun hidden in an alley into which defendant fled would create a legitimate threat to public safety, and, therefore, a post-arrest inquiry by the officers as to where the gun was, fell within the public safety exception to the Miranda rule for the purpose of defendant's response that "That's my weed, but I don't have a gun," even though no gun was found. (For details see Law Enforcement Legal Review - May/June 2003

In Re L.A., 21 P. 3d 952 (Kan. 2001)

A school security officer searched a student at the direction of an assistant principal. The court found that the security officer did not have to give the student Miranda rights prior to interrogating him because he was not a "state actor." "A statutory function of a school security officer is to protect school district property and the students, teachers, and other employees on < the premises of the school district. K.S.A. 72-8222. A school security officer is not employed by an entity whose primary responsibility is law enforcement. During an investigation of a violation of school policy, a school security officer is not required to give a student Miranda warnings."

United States v. Reilly, 224 F. 3d 986 (9th Cir. 2000)In the process of taking an armed robbery suspect into custody the police asked him, "Where is the gun" without first advising him of his Miranda rights. The court ruled that under the public safety exception, a Miranda waiver was not required.

People v. Scott, 710 N.Y.S. 2d 288 (N.Y. App. 2000)

An armed suspect was holding hostages inside a residence. The court ruled that the public safety exception allowed a police negotiator to have a conversation with the suspect without receiving a Miranda waiver.

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United States v. Jones, 147 F. Supp.2d 752 (Mich, 2001)

This case addresses the issue of how frequently a Miranda waiver must be refreshed during the course of interviewing a suspect. There are no specific guidelines establishing criteria when Miranda warnings must be re-issued and a fresh waiver obtained. Relying on the totality of circumstances, this court found that an 18 hour delay was too long and that the suspect should have been re-advised of his Miranda rights. There were a number of exigent circumstances in this case. One was that a police officer obtained the waiver, but a Federal agent (18 hours later) conducted the interview. Second, the location in which the waiver was obtained was different from the location where the incriminating statements were made. Finally, the court considered significant the fact that the person who initially obtained the Miranda waiver from the suspect was different from the person who obtained incriminating statements from the suspect.

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34:1, p. 9. A defendant's refusal to sign a waiver of rights portion of a form advising him of his Miranda rights did not preclude a trial court from finding that he voluntarily and knowingly waived his rights. State v. Wallace, 94 P.3d 1275 (Hawai'i 2004).

34:6, p. 5. "Depends on what you ask me" was a waiver of Miranda rights. Garvey v. State, 873 A.2d 291 (Del. 2005).

In Re M.A.C., 761 A. 2d 32 (D.C. 2000)

A 15-year-old suspect with an IQ of 64 waived his Miranda rights prior to confessing to murder. The court rejected defense attorney's claim that low IQ is a reliable indicator of an involuntary < confession. The court stated, " A low I.Q., standing alone, will not render an otherwise voluntary and knowing confession inadmissible... The youth's intelligence, as measured by testing, is only one of many factors for consideration."

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State in re J.D.H., 765 A.2d 1084 (N.J. App.2001)

A juvenile suspect made incriminating statements about sex offenses while he was talking on the telephone to the victim. The court found that these statements were inadmissible because during the phone conversation a police officer, who was present with the victim during the call, was suggesting lines of questioning to the victim. 

The court found this to be the equivalent of “police interrogation” because the suspected juvenile was the target of the police investigation and the questioning over the phone, as directed by the investigating officer, was undertaken without a statutory parental notification.

In Re M.A.C., 761 A2d 32 D.C. 2000)

A 15-year-old suspect with an IQ of 64 waived his Miranda rights prior to confessing to murder. The court rejected the defense attorney’s claim that low IQ is a reliable indicator of an involuntary confession. The court stated, “ A low IQ, standing alone, will not render an otherwise voluntary and knowing confession inadmissible. The youth’s intelligence, as measured by testing, is one of only many factors for consideration.

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National Labor Relations Board Overturns earlier decision in Epilepsy Foundation case: non-unionized workers not entitled to representation at disciplinary interview

The sole issue in this case is whether the Respondent, whose employees are not represented by a union, violated Section 8(a)(1) of the Act by denying the Charging Parties­ requests to have a coworker present during investigatory interviews.[1] The judge, applying the Board's decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002), found that the Respondent violated the Act by denying the Charging Parties­ requests for the presence of a coworker.

The Respondent urges the Board to overrule Epilepsy Foundation and return to the principles of E. I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board refused to apply the principles of NLRB v. J. Weingarten, 420 U.S. 251 (1975), in a nonunionized setting to permit an employee to have a coworker present at an investigatory interview that the employee reasonably believed might result in discipline. The various amici curiae join in the Respondent's request.

Having carefully considered the entire record in this proceeding, including the briefs of the Respondent and the various amici curiae, we have decided, for the reasons set forth below, to overrule Epilepsy Foundation and to return to earlier Board precedent holding that the Weingarten right does not extend to a workplace where, as here, the employees are not represented by a union. Accordingly, we have decided to affirm the judge's rulings, findings,[2] and conclusions only to the extent consistent herewith and to dismiss the complaint in its entirety.

Click here for the full decision


National Labor Relations Board Overturns earlier decision in Epilepsy Foundation case: non-unionized workers not entitled to representation at disciplinary interview

The sole issue in this case is whether the Respondent, whose employees are not represented by a union, violated Section 8(a)(1) of the Act by denying the Charging Parties' requests to have a coworker present during investigatory interviews.[1] The judge, applying the Board's decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002), found that the Respondent violated the Act by denying the Charging Parties' requests for the presence of a coworker.

The Respondent urges the Board to overrule Epilepsy Foundation and return to the principles of E. I. DuPont & Co., 289 NLRB 627 (1988). In that case, the Board refused to apply the principles of NLRB v. J. Weingarten, 420 U.S. 251 (1975), in a nonunionized setting to permit an employee to have a coworker present at an investigatory interview that the employee reasonably believed might result in discipline. The various amici curiae join in the Respondent's request.

Having carefully considered the entire record in this proceeding, including the briefs of the Respondent and the various amici curiae, we have decided, for the reasons set forth below, to overrule Epilepsy Foundation and to return to earlier Board precedent holding that the Weingarten right does not extend to a workplace where, as here, the employees are not represented by a union. Accordingly, we have decided to affirm the judge's rulings, findings,[2] and conclusions only to the extent consistent herewith and to dismiss the complaint in its entirety.

In the case of Epilepsy Foundation of Northeast Ohio and Arnis Borgs and Ashraful Hasan, decided July 10, 2000, the National Labor Relations Board ruled that the right to have a co-worker present during an investigatory interview which the employee reasonably believes could result in disciplinary action does extend to nonunion employees.

In this case, Borgs, a nonunion employee, was advised to meet with his project supervisor and executive director regarding a memo that Borgs and Hasan had sent to them regarding the project supervisor’s continued participation in a supervisory capacity. Borgs asked if Hasan could be present during the meeting. The request was refused. Borgs continued to express his opposition to the meeting alone with the supervisor and executive director, so he was told to go home for the day and report back to work the next morning at 9 a.m. The next day Borgs was advised that his refusal to meet with his supervisor and executive director the previous day constituted gross insubordination and that he was terminated.

During the initial court proceeding the judge ruled that the employer did not violate Section 8(a)(1) of the Act by discharging employees Borgs and Hasan.

"In arguing that the discharge of Borgs is unlawful, the General Counsel Requests the Board to once again consider the question whether the principles set forth by the Supreme Court in NLRB v. J. Weingarten should be extended to employees in nonunionized workplaces, to afford them the right to have a co-worker present at an investigatory interview which the employee reasonably believes might result in disciplinary action. The General Counsel contends that affording nonunionized employees this right is consistent with the Court’s decision. We agree with the General Counsel’s contentions, including those concerning Weingarten, and for the reasons set forth below, find that the discharges of both Borgs and Hasan are unlawful."

The complete 32-page decision can be found at (click on DECISIONS and type in the case name)

UPDATE On November 2, 2001 the U.S. Court of Appeals for the District of Columbia Circuit upheld this National Labor Relations Board’s (NLRB) ruling that nonunion employees may request that a co-worker be present when an employer conducts an investigatory interview that may result in disciplinary action. According to the court, the NLRB reasonably concluded that such a request constitutes "concerted activity" protected by the National Labor Relations Act (NLRA) – even if the worker is not represented by a union.

All investigators should review this decision with your organization’s legal staff for appropriate guidance.

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It is not uncommon for a suspect to be interrogated following a deceptive polygraph examination. In general, courts do not attach any significance to the fact that an interrogation was preceded by a polygraph examination, or for that matter, a line-up or other investigative lead. Wisconsin, however, does represent an exception. The Wisconsin Supreme Court has ruled that the polygraph technique is so inherently coercive, that statements made during the course of a polygraph examination must be excluded as evidence. (Schlise v. WI 1978). Further, in Wisconsin, an interrogation must be clearly separated, in time and procedure from a polygraph examination (State v. Johnson, 1995).

In an Illinois case a polygraph examination played a different role during a suppression hearing. Chicago Police Officer John Stout obtained a confession from Michael Montgomery following a polygraph examination in which Montgomery was reported as untruthful when he denied killing Debbie Vinson in May, 1993. Montgomery was convicted of first degree murder and aggravated criminal sexual assault. During a suppression hearing the defense argued that the confession was coerced. The trial court agreed to admit polygraph evidence to refute claims of police coercion during the interrogation. The defense appealed, arguing that it was improper to admit testimony that the defendant took a polygraph examination or the results of a polygraph examination. The Illinois Appellate Course disagreed (1st District No. 1-97-2531 decided Dec. 7, 1998, cited as 1998 Westlaw 839905 People v. Montgomery) The appellate court stated the following:

"The results of a polygraph examination, in any manner and at any stage of a defendant's criminal trial, are clearly inadmissible as proof of guilt or innocence. Likewise, testimony about the specific questions asked is inadmissible. However, the prohibition against the introduction of polygraph evidence is not absolute. Polygraph evidence may be considered as a factor in determining whether the defendant gave a statement voluntarily, "

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34:1, p. 9. Presenting defendant with fake videotape and documentary evidence voided a confession. Commonwealth v. Digiambattista, 2004 WL 1801981 (Mass. 2004).

34:1, p. 10. Invalid arrest leads to suppression of inculpatory statements. United States v. Hiruko, 320 F.Supp.2d 26 (E.D.N.Y. 2004).

In the case of State v. Patton 826 A.2d 783, N.J.Super.A.D.,2003 the court very carefully examines the use of trickery and deceit in the interrogation of suspects, and draws a very clear distinction between verbally misrepresenting evidence and creating a fictitious piece of evidence. In their opinion the court extensively reviews the history of the trickery and deceit issue and what numerous courts have had to say on the issue.

Click here for the cases.


34:1, p. 9. A defendant's statement, "we shouldn't talk about this," in response to a friend's questions regarding why he killed a murder victim, was a tacit admission of guilt. State v. Case, 140 S.W.3d 80 (Mo.App. 2004).


Following are several cases that illustrate the value of recording interrogations.

Continued exhortations to tell the truth and references to religious beliefs do not render a confession inadmissible

In the case of State v. Blank, the Supreme Court of Louisiana relied on the videotape of the interrogation to uphold the admissibility of a confession the defendant claimed was coerced as a result of the interrogators references to the defendant's deceased mother, appeals to his emotions and religious beliefs, as well as repeated exhortations to tell the truth. The court stated the following:

While defendant's factual allegations are accurate, he does not show that any of the state's conduct coerced his admissions or rendered the confession involuntary. Our review of the videotapes and the verbatim transcript does not show the officers exercising any type of coercion which would at all indicate that this confession was involuntary. To the contrary, the vast majority of the interview was extremely benign on the part of the officers and Blank was treated very well throughout. In response to defendant's specific examples of coercive conduct, it is evident from the record that defendant did not request food during the interview, during which, notably, none of the interrogators stopped to eat a meal. Despite intermittent statements expressing fatigue and or physical discomfort, defendant never requested to terminate the interview. Moreover, for the most part, officers accommodated defendant when possible, providing him drinks, allowing him to use the restroom and heating the interrogation room. While at first the officers denied defendant's request to smoke, after he smoked a cigarette while he was alone in the bathroom, they continued to let him smoke, and he was allowed to smoke before he confessed to any crimes. As to the references to defendant's deceased mother, appeals to a defendant's emotions and/or religious beliefs typically do not render an ensuing confession involuntary. See e.g., Johnson v. Trigg, 28 F.3d 639, 644-45 (7th Cir.1994) (confession voluntary even though 14-year-old defendant of below average intelligence saw police arrest terminally ill mother before confessing); United States v. Miller, 984 F.2d 1029, 1031-32 (9th Cir.1993) (confession voluntary even though officer, a Mormon bishop, lectured to Mormon defendant that religious tenets required repentance and restitution for wrongdoing). This claim lacks merit.

Defendant also claims that the officers' relentless exhortations that he tell the truth in conjunction with false suggestions indicating that they possessed forensic evidence of his guilt, illegally coerced the confession. Defendant claims that during the interrogation, officers used the word "truth" no less than 30 times, including several communications in which they urged that he answer their questions truthfully. Courts have routinely held that a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will "do what he can" or "things will go easier," will not negate the voluntary nature of a confession. State v. Petterway, 403 So.2d 1157, 1159-60 (La.1981); State v. Magee, 93-0643, pp. 3-4 (La.App. 3d Cir.10/5/94), 643 So.2d 497, 499; State v. English, supra at 1364.

In this case, although the officers repeatedly admonished defendant to tell the truth throughout the interrogation, they did not promise him anything in exchange for the confession except for the suggestion that he could clear his conscience. Notably, in State v. Lavalais, supra at 1053, this Court held that an officer's comments to the defendant that he would likely receive more favorable treatment if he confessed as opposed to failing a polygraph examination did not constitute inducements rendering the subsequent confession involuntary. See also State v. Rochester, 301 S.C. 196, 391 S.E.2d 244, 247 (1990) (advice to defendant from polygraph examiner that it would be "in his best interest to tell the truth" does not render ensuing statement inadmissible). In this situation, defendant fails to show the existence of coercion rendering the statement involuntary.

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Judge v. Indiana No. 70A01-0602-CR-47 March 8, 2007

  In this case the defendant claimed that his confession was not voluntary due to police coercion and deception. "As evidence of this alleged coercion and threats by the police, Judge points to several statements made by Detective Hatfield during the interview at the police station, including Detective Hatfield's statements that he was the "only one" that could help Judge, and that if Judge told him the truth then they could "work something out," but if he lied, that there were "several things that [he could] charge [Judge] with, and [he would]."

After reviewing the taped statement the court found that the confession was voluntarily made and therefore admissible at trial.

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State v Ponder No. 94,108 March 2, 2007

In this case aggravated criminal sodomy case the defendant claimed that his confession was not voluntarily made because his will was overborne by the interrogator's misrepresentation of evidence and promises and threats that his admission would result in minimal consequences. The trial court reviewed the videotaped interrogation and found the confession to be voluntary and admissible.

"What appeared to the Court is that defendant was reasonably articulate and intelligent, understood the questions, and did not come across as an individual that was suffering from any mental disease or defect or lack of ability to understand the questions and participate in the interview process. The interview or interrogation, whatever you want to call it, was freely and voluntarily given."

"Techniques are used by law enforcement officers that include half truths and sometimes out and out deceit. These are both valuable tools in this process. The case law is clear promising things and enticements of that nature are not to be done. That didn't occur in this case. And indeed the tools, deceit or half truths, if you will, are pretty de minimus. The detective was making references to getting help, mental health counseling and treatment."

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LeFever v. State 91 Ark.App. 86, 208 S.W.3d 812

In the case of LeFever v. State, the defendant claimed that his confession should have been suppressed because his Fourth Amendment rights were violated and he was deceived into waiving his rights. The Cour of Appeals of Arkansas found this argument to be without merit when they reviewed the videotaped interrogation. They stated, "In the subsequent interview, which was videotaped, Officer Davenport was the only person in the room with appellant, and she never touched appellant in any manner or raised her voice during the questioning. None of the Mendenhall factors that would indicate an involuntary statement are present in the instant case. Given the totality of the circumstances, we cannot say that appellant's statement was not voluntary."

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Laredo v State No. 14-05-00855-CR Feb. 13, 2007 Tex.App. Houston 14th Dist.

In this case Laredo claimed that at the time of his interrogation and subsequent confession "he had not slept for over twenty-four hours before the interview. He also testified that before going to meet with the officers, he was intoxicated from codeine cough syrup, Zanex, and hydroponic marijuana, and he remained intoxicated during the interview almost twenty-four hours later. He had not eaten before meeting with the officers, and he was not offered food or water while in detention. He was also unable to sleep because of the jail conditions and so was sleep-deprived. He explained that he decided to go ahead and give his statement so that he would be "taken care of," which to him meant "being [g]iven a cup of water, [and] treated like a human ." The trial court and the Appelate court found the confession to be admissible and used the videotape of his statement as an important part of their decision.

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U.S v Jackman Slip Copy, 2007 WL 212511 C.A10 (Utah), 2007 January 29, 2007

In this case the defendant claimed that he did not make a knowing and voluntarily waive his Miranda rights. The videotape of the interrogation was instrumental in establishing that the waiver was, in fact, knowing and intelligent.

In their decision the court stated:

"Appellant argues that "[t]he officers 'down played' and misrepresented the purpose of his Miranda warning to give the impression that the rights were mere formalities, or rights that should not be taken seriously." (Appellant's Br. at 5-6.) According to Appellant, the officer's remark led him to believe that he was agreeing only to being placed in custody, not waiving his rights. Appellant also contends that his two-week long attempt to avoid the police, during which he abused cocaine and methamphetamine, left him sleep-deprived and unable to knowingly and voluntarily consent to waiving Miranda.

After reviewing the parties' briefs, the magistrate judge's report and recommendation, and the record on appeal, including the videotape of the interrogation, we conclude that Appellant knowingly and voluntarily waived his Miranda rights."

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U.S. v. Robinson, No. 06-40103-JAR Jan. 4, 2007

In this case the court upheld the admissibility of the defendant's confession and used the video of his interrogation to rebut his claims. The court said, in part:

"While the questioning began at 11:35 p.m. and continued until about 12:50 a.m., defendant never appears tired in the DVD recording of the interview. The nature of the questioning, as explained above, did not create a coercive environment as to render defendant's statements involuntary.

Defendant also contends that, at the time of the interview, he was recently and admittedly under the influence of both drugs and alcohol. Defendant was a known addict, which he contends made him more vulnerable to police interrogation. However, based on the recording of the interview, defendant does not appear impaired or intimidated by the questioning so as to render his statements involuntary."

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State v. Barrett 147 P.3d 491 Utah App., 2006

In this case the defendant appealed his conviction on the basis that he did not waive his Miranda rights because he asked for an attorney and the police continued to question him. As the Utah Appellate Court stated in their opinion after reviewing the transcript of the audio recorded interrogation, "Not only did Defendant expressly waive his Miranda rights by stating that Detective Jackson could talk to him, his admission of guilt immediately after acknowledging that he understood his rights also supports waiver. Furthermore, we agree with the trial court that Defendant's reference to an attorney was not a request for counsel but was instead an explanation of his decision to proceed without one. Finally, nothing about Defendant's background or experience makes us doubt that Defendant's waiver was made knowingly and intelligently." Click here for the complete decision.

Supreme Court of Arkansas Judy Ann Flanagan v. State of Arkansas No. CR 06-88 Nov. 30, 2006

In this case the defendant claimed that her confession should have been ruled inadmissible because of her limited IQ and promises made to her by the interrogators. In part the court stated, "Here, the circuit judge viewed the videotaped statement; thus, he was able to hear for himself whether or not Flanagan sounded as if she were impaired and whether Rolland obtained a confession through a false promise of reward. The record does not indicate that Flanagan was mentally impaired such that she did not realize the meaning of her statement. Nor does the record indicate, as Flanagan suggests, that Rolland offered desired benefits to obtain her participation in and completion of the interview. The circuit court's finding is not clearly against the preponderance of the evidence." Click here for the full case decision.

United States District Court US v Damien Cortez Ford No. 06-40110-01-RDR Dec. 7, 2006

In this case the defendant claimed that his confession should have been found inadmissible because of a violation of his 5th amendment rights; physical and psychological coercion; and the fact the officers deceived him into confessing. The court rejected his claim. In part they stated:

"The court rejects defendant's claim that the statements he made were the result of psychological or physical coercion. Defendant was in a small but seemingly comfortable room in the Law Enforcement Center for over four hours. Much of this time he was alone in the room and not being questioned. He received a Miranda warning. It is clear from the video (emphasis added) that defendant had been interrogated by police officers, including Detective Biggs, in the past. He had been in prison before. He had a good deal of experience with the criminal justice system and appeared to have an informed viewpoint concerning how the events and charges in this matter might play out. Defendant did not ask for food or water or a chance to use the bathroom during the interrogation. He did ask to get messages to other persons, and the officers appeared attentive to these requests. There is no reason to believe that he would have been denied food, water or bathroom privileges had he requested them. Defendant is a young adult. He had a cough, but appeared in good physical condition. He did not seem to suffer from psychological difficulty or mental deficiency.

At times the questioning was repetitive and persistent. A few times the questioning was angry. Most of the time the interrogation was conducted calmly. Defendant was not shackled or handcuffed during the questioning. After evaluating all of the facts and circumstances, we find that defendant's statements were voluntary and were not made because of physical or psychological coercion." Click here for the full case decision.

Supreme Court of Kansas Kansas v. Gonzalez No. 91,469 Oct. 27, 2006

Defendant claimed that his confession was coerced. The court rejected his appeal. At one point they stated:

"In denying the motion to suppress, the trial judge relied primarily on the videotape, (emphasis added) which the trial judge had viewed twice before ruling. He noted that the Miranda warnings were properly given, and even complimented Hagenson on how well he had conducted the interview. He noted that Hagenson had not "abused or pressured" defendant and had gone out of his way to make defendant comfortable. The trial judge concluded that "[t]here was nothing out of the ordinary or nothing improper about the interview process.

After defendant's conviction, in denying the defense's motion for a new trial, the trial court reiterated its rationale for finding the confession to be voluntary. The trial court here additionally noted that Hagenson had specifically told defendant "all you're doing is ··· helping me," that Hagenson had specifically told defendant that he would not or could not make him any promises in exchange for his cooperation, and that the trial judge did not "know how [Hagenson] could have been any more straightforward ··· or any more fair with [defendant]." Click here for the full case decision.

State v. Buck 331 Mont. 517, 134 P.3d 53 Mont., 2006

In this case the defendant claimed that his confession should have been suppressed because there was a violation of his request for counsel.. His motion was denied.

In part the court said:

"The District Court held a suppression hearing in May of 2003. At this hearing, the court viewed the audio-video recording of the discussion (emphasis added) between Buck and Burns, noted above, wherein Buck declined to undergo a fingernail scraping without first consulting a lawyer. Burns testified that he believed Buck's statements regarding "a lawyer" were made in response to the request for a fingernail scraping. Buck testified that he understood the form he had signed which advised him of his rights. He also testified that he understood his right to have counsel present before being questioned, and that he understood his right to terminate a police interrogation and request counsel.

In rendering its ruling, the District Court stated:

Clearly, from the evidence that's been presented to me today, during the course of interrogation Mr. Buck never asked for a lawyer, in fact he waived such twice in writing after having-provided his signature after having been advised. His mention of a lawyer with the statement "maybe I need to talk to *523 a lawyer or something" on November 2nd was clearly after the interrogation had stopped, and in the Court's mind in direct response to Lieutenant Burns' question-or request for a fingernail scraping, a search of his person. When Mr. Buck made that statement the search did not occur, nor did any further interrogation occur at that time, it had ceased." Click here for the full case decision.

Com. v. Jackson 447 Mass. 603, 855 N.E.2d 1097 Mass.,2006.

In this case the defendant claimed that his confession should have been suppressed because it was the product of an illegal arrest for which there was no probable cause; involuntary; and not preceded by a knowing, intelligent, and voluntary waiver of his Miranda rights.

In part the court said:

"The principal issues at Jackson's trial were the waiver of his Miranda rights, the voluntariness of his confession, and the reliability of that confession. Videotapes of the confession and the several statements that preceded it were introduced in evidence and played for the jury....It is apparent that the jury found that Jackson's statements were voluntary and preceded by a knowing and voluntary waiver of his rights." Click here for the full case decision.

Supreme Court of Iowa State v. Hajtic No. 03-1481 Dec. 1, 2006

In this case the 17-year-old defendant claimed that his waiver of his Miranda rights was not made knowingly, intelligently, and voluntarily. The original court's decision was affirmed.

In part the court stated:

"We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed. The videotape shows the officer with his side or back to the camera and Hajtic facing the officer and the camera. Hajtic's sister sat about an arms' length to his right. Their mother and Hajtic's six-year-old brother sat behind them in the interrogation room. The officer read out loud a Miranda waiver form, and Hajtic read it for himself. Hajtic said he understood his rights and that he had no questions. He signed the waiver form, which stated that he could "read and understand the English language." His ability to understand English was confirmed by the videotape of the Miranda proceedings and the questioning that followed. He showed no reluctance to ask questions if he did not understand. When the officer asked a question confusing to Hajtic, he asked the officer to clarify it, and the officer did so. For the most part, however, the officer's questions were answered responsively and without any reliance for interpretation by his sister. In fact, during the interview, Hajtic appeared almost oblivious to his sister's presence. Judging by Hajtic's actions and responses to the questions, he clearly understood the questions asked.

This case illustrates the value of electronic recording, (emphasis added) particularly videotaping, of custodial interrogations. One authority has observed that

[o]ne way to satisfy the burden [of voluntary waiver] is an audio or video recording of the warning, any waiver, and any questioning made in response, but this is not required as a matter of federal constitutional law and few state courts have made such a requirement." Click here for the full case decision.