Interrogation Law (5th & 6th Amendments)
EPO #1: FIFTH AMENDMENT PRIVILEGE
The 5th Amendment protects against self-incrimination.
It prevents the government from forcing a person to make statements against themselves.
The suspect can refuse to speak with the police during a case investigation.
The defendant cannot refuse to appear before a grand jury but can refuse to answer questions that may incriminate them.
A prosecutor may not comment on the defendant’s silence.
The state or judge may not call the defendant to the stand.
At trial, the defendant can refuse to take the stand and testify.
A co-defendant may not call the defendant to the stand at their joint trial.
A defendant who voluntarily takes the stand and testifies on their own behalf cannot invoke the privilege on cross-examination.
The privilege applies to any crime, state or federal.
A defendant can take the 5th when being investigated by the state if concerned about implicating themselves in a federal crime.
Witnesses who are not defendants or potential defendants cannot refuse to testify, and may even be imprisoned for contempt of court if they refuse.
The privilege is available only to an individual and cannot be invoked on behalf of a company.
It is a “personal” privilege; a witness cannot refuse to answer to protect another.
The prosecution can offer immunity to get around the defendant’s privilege against self-incrimination.
Once immunized, the defendant or witness can no longer refuse to testify by invoking the privilege against self-incrimination.
The 5th Amendment privilege is available to an individual in any court proceeding, whether criminal or civil, because incriminating testimony in a civil proceeding could be used against the person in a future criminal case.
5th Amendment issues can also arise in civil cases.
EPO #2: MIRANDA VS ARIZONA
The person must be advised of his right to remain silent and that anything said could be used in court against him
The person has the right to have an attorney present during questioning, whether he can afford one or not
To appreciate the constitutional requirements of Miranda, we must define “custody” and “interrogation” and agency policy impact.
Custody:
Any situation where a reasonable person would not feel free to leave.
Location is irrelevant; the court will look at “inherently coercive pressures.”
It does not apply to routine traffic stops.
Miranda warnings are not required in conjunction with:
Voluntary contacts
Interviews
Taking of witness statements
These situations don’t involve custodial interrogation
Interrogation:
Express questioning of a suspect by police to gather information that may incriminate that person.
Any conduct the police know, or should know, might elicit an incriminating response from a suspect is considered the “functional equivalent” of direct questioning.
EPO #3: VALID RIGHTS WAIVER
Under Miranda v. Arizona, a suspect must be advised of and waive rights before being subjected to custodial interrogation.
The invocation must be unambiguous.
Suspects must clearly communicate to the police (verbally or in writing) that they wish to invoke their right to remain silent and that they want a lawyer.
Miranda warnings are not required prior to the admission of a spontaneous statement.
Suspects are free to make spontaneous statements to the police.
If a defendant clearly invokes the right to remain silent but then starts talking, this is an ambiguous statement.
A defendant can waive his Miranda rights as long as the waiver is “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and is made knowingly and intelligently, “with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine, 475 U.S. 412 (1986))
Waivers:
Explicit (express waiver): requires writing or a statement of waiver
Implicit (implied waiver): can occur simply by some action, where such action indicates one’s intention to waive the rights; the act must unequivocally indicate the desire to waive one’s rights
Determining the validity of a Miranda waiver requires a two-step analysis:
First, the court must determine whether the defendant was adequately warned of his privilege against self-incrimination and his right to counsel.
Second, the court must determine whether the defendant knowingly, intelligently, and voluntarily waived these rights (People v. Chase, 719 P.2d 718, 720 (Colo. 1986)).
VIK (Voluntarily, Intelligently, and Knowingly):
When the validity of a Miranda advisement is questioned, the prosecution bears the burden of proving the validity of a Miranda waiver and must demonstrate by a preponderance of the evidence that the waiver was made voluntarily, intelligently, and knowingly (People v. Mejia-Mendoza, 965 P.2d 777, 780 (Colo. 1998)).
Voluntarily: whether force or the threat of force was used; whether the police used deceptive tactics; whether the defendant was deprived of basic bodily needs
Intelligently: Defined as “in full awareness or consciousness; deliberately.” The age and education of the defendant
Knowingly: Drugs or Alcohol influence full may affect awareness or consciousness; Can they read?; Can they understand/speak English?
Miranda Exceptions
The court has created a public safety exception to the Miranda warning requirement but has refused to create another exception for misdemeanors and lesser offenses.
The privilege protects a person against compelled testimony and similar communications but does not protect against compelled nontestimonial acts such as submitting fingerprints, photographs, DNA testing, speaking for identification, giving blood samples, and appearing in lineups.
Defendants can be forced (via warrant) to give hair samples, blood samples, and other bodily fluids.
They can be forced (via warrant) to produce writing samples and, in some cases, to give over information such as combinations to safes or the location of bank accounts.
EPO #4: HOW TO PROCEED AFTER A SUSPECT INVOKES
A blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity.
If the suspect invoked only the right to remain silent, and if officers “scrupulously honored” the invocation, they may contact him later to see if he has changed his mind about talking with them.
If so, and if he waives his Miranda rights, officers may question him about the crime for which he invoked or any other crime.
Other Post-Invocation Questioning:
Never “in custody”: the suspect was never “in custody”; i.e., at no time would a reasonable person in his position have believed he was under arrest or that his freedom had been restricted to the degree associated with an actual arrest.
No “interrogation”: the officers’ questions did not constitute “interrogation,” meaning the questions were not reasonably likely to elicit an incriminating response.
Questioning by undercover agent: It is not a violation of Miranda for an undercover officer or police agent to question the suspect about the crime for which he previously invoked the right to remain silent or the right to counsel.
Such questioning will, however, violate the Sixth Amendment right to counsel if the suspect was charged with the crime that was the subject of discussion.
The Invocation Was “Scrupulously Honored.”
Interrogation immediately ceased: When the suspect was invoked, the officers immediately stopped interrogating him.
Timelapse: The officers waited a “significant period of time” before recontacting him.
No pressure: When they recontacted him, they did not attempt to persuade him to talk.
Waiver: The officers did not begin questioning him until he waived his Miranda rights.
EPO #5: ARTICLE 31 OF THE UNIFORM CODE OF MILITARY JUSTICE
The rights of military members and civilians on a military installation can vary significantly from the basic 5th Amendment rights that regular civilians enjoy.
Article 31 of the UCMJ (Uniform Code of Military Justice) goes significantly beyond the normal Miranda protections.
Miranda warnings are only required if a person is in custody by police.
Article 31 rights must be read any time a military member suspects that another military member may incriminate himself or herself during a conversation.
Allows the investigator to know the status of cases, which becomes increasingly important in ensuring victims and witnesses are notified, suspects subpoenas and protection order service, and 6th amendment applications.
Some of these rights include:
The right to know what one is being accused of
The right to submit only evidence that is relevant to the accusation
The right not to have unlawfully obtained evidence used against one in court
The right to remain silent
Active-Duty Security Forces (Law Enforcement)
Article 31 rights must be provided prior to interrogation about an official law enforcement or disciplinary inquiry.
This must be done for active duty and civilian personnel, regardless of military affiliation.
Civilian Law Enforcement (DOD)
Article 31 rights must be provided prior to interrogation about an official law enforcement or disciplinary inquiry by DOD Civilian Law Enforcement Officers.
This must be done for active duty and civilian personnel, regardless of military affiliation.
State law enforcement officers are not affiliated with the military and are not required to read Article 31 rights to the suspect.
Federal agents with no affiliation to the military are not required to read Article 31 rights to suspects except in limited situations.
Article 31 must be provided when:
The person being questioned is a service member (or another person subject to UCMJ).
The person asking the questions is subject to the UCMJ.
That person is a civilian law enforcement officer employed by the Department of Defense.
EPO #6: 6TH AMENDMENT AND CONSTITUTIONAL REQUIREMENTS
The right to counsel under the U.S. Constitution is a relatively simple concept.
If charged with a crime for which you face potential time in jail, then you have the constitutional right to have a lawyer to assist you in your defense
If you can’t afford to hire that lawyer on your own, then the government must provide you with a qualified attorney at public expense.
The court has said the right to counsel is the right to an effective attorney.
Lawyers cannot be effective unless they work within indigent defense systems that ensure their independence, provide training, and impart supervision, among other systematic safeguards
A criminal defendant’s initial appearance before a judicial officer, where he learns the charges against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the 6th Amendment right to counsel.
Under the 6th Amendment, a suspect has a right to have counsel present whenever he is questioned about a crime with which he has been charged.
Miranda and Sixth Amendment rights attach at different times during an investigation, they are invoked in different ways, and the consequences of an invocation differ
“[O]nce this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.”
Officers are not required to notify the attorney before questioning the suspect
After a suspect has been arrested for one crime, officers who are investigating another crime may want to question him
The first issue that officers must address is whether the suspect has Sixth Amendment rights.
6th Amendment is “offense-specific.” A suspect acquires 6th Amendment rights only if he will be questioned about either of the following:
A crime with which he has been charged; or
An uncharged crime that is “inextricably intertwined” with a charged crime
EPO #7: LIMITATIONS ON THE USE OF TRICKERY OR DECEIT
The U.S. Supreme Court upheld a confession obtained by the use of trickery where a homicide suspect was falsely told that his accomplice had already confessed (Frazier v. Cupp).
Courts have also imposed limits on the use of trickery and deceit
For example, an investigator cannot use a tactic that would “shock the conscience of the community,” such as the investigator introducing himself as the suspect’s court-appointed lawyer and obtaining a confession under the pretense of needing to know the truth to defend the suspect best
A federal court ruled that it is improper to manufacture fictitious evidence against the suspect and use the “evidence” during an interrogation.
The general guideline is those false verbal assertions are permissible, e.g., “The crime lab identified your DNA on the victim,” but creating false evidence (typing up a fictitious crime lab report) is not
Courts recognize that falsely telling a suspect that his fingerprints were found inside the victim’s home, for example, would not be apt to cause an innocent suspect to confess; The inherent danger of lying to a suspect about the existence of fictitious evidence is when the suspect does not believe the investigator’s statement
Another approach that has a similar safeguard is to refer to the evidence in the future tense
EPO #8: INTERROGATING COLLECTIVE BARGAINING UNIT EMPLOYEES
CBU employees are entitled to union representation per 5 USC 7114(a)(2)(b)
Any examination of an employee in the bargaining unit by a representative of the agency in connection with an investigation if:
The employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests representation
Having questions clarified before answering
Commenting on the form of the question before answering
Objecting to possible infringements of the employee’s rights
A union representative is not always required when interviewing collective bargaining unit (CBU) employees:
If the employee is aware no disciplinary action will be taken against them
If the employee is assured no disciplinary action will result
If the employee faces possible criminal action, the employee still retains the right not to incriminate themselves
Non-Bargaining Unit Employees
If the employee is a non-CBU employee:
If reluctant to cooperate, try to be persuasive and convincing to achieve voluntary cooperation
Non- employees:
Most cooperate if treated with respect
Remind them without public support, a risk exists of people not being held accountable or the truth being obscured
Non-employees do not have an obligation to be cooperative with an investigation