Miranda Warnings – The Interrogator has a duty to clarify an ambiguous waiver

As we have previously discussed, Miranda Warnings are only required when someone is in custody and subject to interrogation.  An interrogation refers to direct questioning by police after a suspect has been taken into custody. The Supreme Court ruled as much in 1980 after Thomas Innis, a man who had been arrested for robbing a taxi driver at gunpoint, ended up leading his arresting officers to the gun he used in his crimes. He did this after hearing two officers discuss their concern for mentally disabled children in the area who might find the gun and hurt themselves. The Supreme Court ruled that the shotgun was admissible in court because Innis’s statement had been spontaneous, and was not technically the product of “interrogation.” Remember, voluntary statements are admissible.

No matter how serious the crime, you are protected by your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel.  Anyone who is in custody and being questioned should specifically invoke your rights.  Unless you explicitly say that you are invoking your right to remain silent, you might not actually be exercising it, the Supreme Court ruled in its controversial 2010 decision in a case called Berghuis, Warden v. Thompkins. The defendant, Van Chester Thompkins, was interrogated by police for three hours without saying a word. Towards the end of the interrogation, when asked if he prayed to God to forgive him for the shooting he was suspected of, he answered, “Yes.” The majority ruled that his offhanded confession was unprotected by Miranda. Justice Sonia Sotomayor, dissenting, remarked that the court had concluded “that a suspect who wishes to guard his right to remain silent … must, counterintuitively, speak.”

So here is an example of a recent case involving a waiver of the Miranda warnings.  At the beginning of the interrogation,  the following exchange took place:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

A: Uh-huh.

Q: Anything you say can and will be used against you in a court of law.

A: Uh-huh.

Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

A: Uh-huh.

Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning.  So if you don’t like the way it’s going, you can say, whoa, [detective].

A: I don’t have no lawyer, so —

Q: You — –

A: I don’t even have no money to call a lawyer.

Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

A: Uh-huh.

Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now. (emphasis added).

Too often people waive their rights to remain silent and have an attorney present.  Once the Miranda warnings are read and then waived, then the interrogator uses his training and expertise to illicit incriminating statements that are recorded and will be used later in trial.   In the scenario above, the Defendant waived his rights and admitted to committing the crimes charged.  Luckily for this Defendant, the Miranda warnings were captured on video.

A Motion to Suppress was filed and argued to the Court because the waiver of his Miranda rights (“I don’t have no lawyer, so — I don’t even have no money to call a lawyer.”) was ambiguous.   The Courts have held that the Interrogator has a duty to clarify that there is a knowing and intelligent waiver.  “[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

Even if an interrogation has begun and you have answered some questions, you can stop the questioning by telling police that you are exercising your right to stay silent.

If you or a loved one has been arrested and you believe the police violated your Miranda rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Everything you need to know before accepting a plea to probation.

Often I am asked, what are the requirements for probation.  Before entering into and accepting a plea to probation, the client should understand the terms and requirements for probation.   While the court determines the specific terms and conditions of a defendant’s probation, the standard conditions of probation under Florida law are as follows:

  • Report to the probation supervisor as directed by the court
  • Allow the probation officer to visit the probationer’s home, place of employment, or other places
  • Remain gainfully employed in a suitable job
  • Stay within a specific area, such as within county or state limits
  • Do not break any new laws
  • Make restitution to any parties who were harmed by the crime
  • Financially support one’s dependents
  • Do not associate with any people who are engaged in criminal activities
  • Willingly submit to random drug and/or alcohol testing
  • Do not possess, own, or carry any firearms
  • Do not use any controlled substances unless they were lawfully prescribed by a doctor

For additional information, the terms and conditions of probation are found under Section 948.03 of the Florida Statutes.

While there are different levels of probation, such as administrative (non-reporting), reporting, sex offender, drug offender, and Community Control (the strictest type of probation also known as “house arrest”), they all require absolute compliance with the various terms and conditions. The state has zero tolerance for violators, who are penalized for their noncompliance.

As a general rule, criminal defendants find probation to be a favorable alternative to being behind bars for reasons we can understand.   Still, probationers must not take probation for granted; while on probation, they must adhere to strict terms and conditions.

If the terms and conditions of probation are violated, there are severe consequences.    If a probationer violates one of their terms of probation, it can lead to an arrest warrant being issued. Generally, a probation officer (PO) learns that a probationer violated one of the terms of their probation, then the PO can either make a “warrantless arrest,” or they can prepare an affidavit and present it to the judge.

From there, the judge examines the affidavit and if they agree with the PO, the judge will issue an arrest warrant. Once issued, the defendant will likely be arrested and held in custody without bond until the pending violations are resolved.

If you violated your probation and suspect an arrest is imminent, contact our office to speak with Criminal Defense Attorney Neil Kerch immediately. Unless you can prove to your Probation Officer without a doubt that you were compliant, you are not likely to dissuade your Probation Officer from finding you in violation and imposing harsh consequences.

If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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The False Confession based on Police Interview Tactics

Often I have clients tell me they are 100% innocent of the crime they are accused of committing.  Then, the State Discovery Submission comes with a DVD of my client’s confession.  How can that be?

Many police investigators are trained in use of the Reid technique, a multistep approach to interrogation that is designed to increase the anxiety associated with denial while reducing the anxiety associated with confession.  Perhaps, the most controversial tactic permissible within this approach involves the false evidence ploy by which interrogators bolster an accusation by presenting the suspect with supposedly incontrovertible evidence of his or her guilt (e.g., a fingerprint, blood or hair sample, eyewitness identification, or failed polygraph)—even if that evidence does not exist.  In the United States, this type of deception is permitted by law, recommended under certain circumstances, and occasionally used by police. See Inside Interrogation: The Lie, The Bluff and False Confessions by Jennifer T. Perillo and Saul m. Kassin

Drawing on the distinction between coerced-compliant and internalized false confessions there are two mechanisms by which innocent suspects might confess when confronted with false evidence. First, research has shown that people in general confess as an act of social compliance when they feel trapped by the apparent strength of the evidence against them and perceive no other means of escape.  Second, research has shown that false evidence, a strong form of misinformation, can create confusion and lead people to doubt their own beliefs, at times internalizing guilt and confabulating memories for crimes they did not commit. See Inside Interrogation.

In addition to the dispositional and situational factors that can increase one’s vulnerability to false confession, research shows that innocent people who stand accused believe that their innocence will become apparent to others, a naive belief that leads them to waive their Miranda  rights to silence and to an attorney. See Inside Interrogation.

If you or a loved one has been arrested and or the police want to question you,  ask for an attorney to be present before and during all questioning.  Contact Broward Criminal Defense Attorney Neil C. Kerch to safeguard your rights.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

Criminal Defense attorney Broward County
False Confession Attorney Broward County
Read Me My Rights. Miranda Warnings
Criminal Defense attorney Miami-Dade County
False Confession Attorney Miami-Dade County
Read Me My Rights. Miranda Warnings
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False Confession Attorney Palm Beach County
Read Me My Rights. Miranda Warnings