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Miranda and Polygraph

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Author Topic: Miranda and Polygraph
J.B. McCloughan
Administrator
posted 10-16-2007 12:22 AM Click Here to See the Profile for J.B. McCloughan Click Here to Email J.B. McCloughan Edit/Delete Message
All,

I know that this is being discussed on the anti site and thought it might be something of substance to discuss here.

I am not a lawyer, so my thoughts on this are simply from my experiences and a lay understanding of the jurisprudence regarding this topic.

I am of the understanding that there are two simple things that need to both be in place for Miranda to be given by the government or its agents (e.g. law enforcement of some sorts) and they are custody and interrogation.

Custody is sometimes defined as being achieved when one is not readily free to leave.

Interrogation is sometimes defined as occurring when one is asked direct questions that are potentially incriminating.

If the aforementioned definitions were held to be true, one could assume that polygraph has both elements, as individuals are both attached to instrumentation and its components that must be removed and asked direct questions of potentially incriminating nature while attached to the components.

As a result, it is my understanding that some law enforcement polygraph examiners are required to advise Miranda prior to every polygraph examination.

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Barry C
Member
posted 10-16-2007 05:38 AM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Yes, there is a two-prong test for the need for Miranda (under the Fifth Amendment): custody and interrogation.

Under the Sixth Amendment, the Fellers decision tells us that once a person has been formally charged with a crime then his right to counsel automatically attaches, which means interrogation without custody requires a valid waiver. (Most lawyers agree that Miranda warnings would do the trick there.)

Interrogation is express questioning or its functional equivalent designed to elicit an incriminating response. The courts don't differentiate between "interview" and "interrogation." They are legally the same.

I've read the anti site, and there are correct points on both sides. A polygraph is supposed to be neutral, but we do ask questions that would require incriminating responses from the guilty. However, the same is true of the defendant's attorney, but we don't call their discussions an interrogation. Any time you ask a person if he did something wrong, you've essentially got interrogation, which is where people are going wrong on the anti site. ("Do you know why I stopped you?" is technically "interrogation.")

Here in Maine, the law requires that I tell an examinee in a criminal case about his right not to incriminate himself. We always read Miranda, but what we tell the person isn't true. We tell them that they have a right to counsel, and we tell them that if they can't afford a lawyer, one will be appointed to them for free. Not true. There's almost no way the courts would appoint a lawyer to a person who is not under arrest or charged with a crime, which is the case in most criminal polygraph tests I do anyhow. (I actually explain that to people - in an effort to emphasize the lack of custody.)

It's not as cut-and-dry an issue as one might think, and in the end, Miranda has little, if anything, to do with custody (or lack thereof) where I am. It has everything to do with obeying the law.

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J.B. McCloughan
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posted 10-16-2007 01:15 PM Click Here to See the Profile for J.B. McCloughan Click Here to Email J.B. McCloughan Edit/Delete Message
Some food for thought:
http://criminal.findlaw.com/crimes/criminal_rights/your-rights-miranda/when-miranda-required.html
http://www.aclu.org/scotus/1999/22423lgl20000220.html
http://books.google.com/books?id=uwjNXOjqTbcC&pg=RA1-PA48&lpg=RA1-PA48&dq=%22miranda+required%22&source=web&ots=ihUp0MeH2F&sig=b-EvdiK-lpJnTT0-CmuQO0qsfzU#PRA1-PT1,M1
http://www.ca5.uscourts.gov/opinions/pub/05/05-70020-CV0.wpd.pdf

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Ted Todd
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posted 10-16-2007 01:17 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
JB

Miranda is required when the following two things are in place.

1. Custody-either physical or constructive.

2. Questioning-of ANY type-not just interrogation.

If a person or suspect walks in off the street and agrees to submit to a polygraph, Miranda would not be required.

Miranda is frequently misused and overused by law enforcment. In reality, the use or non-use of a polygraph has no bearing on whether or not a Miranda advisement is required.

Ted

[This message has been edited by Ted Todd (edited 10-16-2007).]

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Barry C
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posted 10-16-2007 03:12 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
No, questioning of any type is not the test. For example, routine booking questions don't require Miranda warnings. Only questioning that is designed to elicit an incriminating response requires Miranda. You can call that type of questioning anything you want, but it's all "interrogation" as far as the courts are concerned. With that said, most questioning would be interrogation in such circumstances.

quote:
If a person or suspect walks in off the street and agrees to submit to a polygraph, Miranda would not be required.

I suspect you'll find decisions on both sides of this one. We get motions to suppress on this one all the time, but, since we read Miranda, they never survive. The fact that we connect a person to a chair will persuade most courts to conclude the person was not at liberty to move around freely. Others will likely see it in the same light as traffic stops: custody, sure (practically anyhow), but everybody knows they're only getting inconvenienced for a moment so no legal "custody."

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Ted Todd
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posted 10-16-2007 03:47 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
Barry,

I think we are saying the same thing here. It is the circumstances surrounding the interview that dictate Miranda......not the tools one chooses to use in the interview.

Ted

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Barry C
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posted 10-16-2007 04:38 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Fair enough.

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rnelson
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posted 10-16-2007 04:48 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
This is all a deflection from the dramatic point of the conversation at anti - which seems to be that interrogation is itself bad.

Interrogation itself is not unethical. Unethical interrogations are unethical. I know that's circular, but so what.

The point at anti was some version of the polygraph is bad because it is an interrogation.

We never got to the point of discussing whether it is a test (at the same time) - but that's not their mission over there.

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)


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J.B. McCloughan
Administrator
posted 10-17-2007 09:04 AM Click Here to See the Profile for J.B. McCloughan Click Here to Email J.B. McCloughan Edit/Delete Message
http://www.ca5.uscourts.gov/opinions/pub/05/05-70020-CV0.wpd.pdf
quote:

As set forth above, the Supreme Court h[e]ld that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. Miranda, 384 U.S. at 471, 86 S.Ct. at 1626 (emphasis added). The Supreme Court,however, also directed that [p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Id. at 444, 86 S.Ct. at 1612 (emphasis added). The latter warnings do not explicitly state that a suspect has a right to counsel during questioning, indicating that the warnings provided to Bridgers are adequate.3


quote:

In any event, what is clear from the majority opinion is that a suspect has the right to counsel during custodial interrogation and must be so informed.


[This message has been edited by J.B. McCloughan (edited 10-17-2007).]

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Barry C
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posted 10-17-2007 12:28 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
I think I mentioned this before, but there is a First Circuit case that says when a person waives (Miranda) during the pre-test, he does so only up to the point of the completion of the test (data collection). The post-test interrogation in the particular case required a fresh Miranda warning. To solve that problem, I explain (and include in the written waiver) that the person is waiving his rights at all three stages (with the knowledge he can assert those rights at any time).

Keep in mind that the warnings are only required in custodial situations, so in jurisdictions where polygraph isn't, by itself, considered custodial, then the warning isn't necessary.

Does anybody not read Miranda during police tests with no custody or indictment? If you do read Miranda (no custody, no formal charges), do the people really have a "right" to counsel in your jurisdiction? They wouldn't here (because they're not in custody or charged with a crime).

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Buster
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posted 11-27-2007 07:40 AM Click Here to See the Profile for Buster Click Here to Email Buster Edit/Delete Message
I tell the detective that always talks to the suspect first that Miranda is their responsibility. The reason is because each department has their own policy. Even though you need C+I for Miranda some agencies have a policy that everyone they question gets Mirandized- no questions asked.

One thing that it was taught in a DCJ class I attended that no-one mentioned here is the following:

Does a reasonable person beleive that they have the right to leave? Therefore location and time of day etc. must be taken into account. The example given was if we ask a guy to come in at 200 in the afternoon and there are doors open, secretaries, lights on the person would feel that they could leave. Obviously he is not under arrest.

On the other hand if we ask him to come in at 200 AM the station is kind of dark there are no civilians, all doors require that special card to open. Even though the subject is not under arrest, he may not feel he is free to leave.

I was trained by Gordon and my pretest says "If you would like to stop at anytime, let me know I will stop the test and you are free to leave," if you go by the reasonable standard I think that helps if we choose not to Mirandize. Especially now that that statement is taped.

Barry, I have never heard anything about your first paragraph. I am pretty new to poly, however.

[This message has been edited by Buster (edited 11-27-2007).]

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Barry C
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posted 11-27-2007 01:08 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
quote:
Does a reasonable person beleive that they have the right to leave?

I think the question is even more narrow than that. The question the courts use is whether a reasonable person would feel his liberty to move around freely was restrained in any way. Your suggestion, let me know if you want to leave is, I believe, reasonable, given that you might have to remove components first. It could be argued differently, but I think the fact that courts let us pull people over on the side of the road (in cars) with no Miranda, reasoning everybody knows it's temporary, etc, would hold here too. Any "inconvenience" or inability to freely move about is voluntary and you need the subject to let you know if that changes.

Few people know about that case. I'll see if I can dig it out.

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rnelson
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posted 11-27-2007 04:38 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
just a piece of useless trivia...

While attending polygraph school in Arizona, during 2000, I heard an interesting story about how Tom Ezell once arrested the infamous Miranda.

among other memorable tidbits of information that we learned from Tom Ezell was the purpose of interviewing and interrogation:

  • to give information,
  • to get information, and
  • to make a friend.

(from the man who arrested Miranda, and perhaps caused a federal court case)

To be sure, I would guess that Miranda was arrested multiple times (he was apparently acquitted by the supreme court, to be set free on the streets of downtown Phoenix, where he was later killed in a knife fight), so I don't know whether Tom Ezell was the arresting officer in the famous case.

Perhaps someone else knows more.

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

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Ted Todd
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posted 11-27-2007 07:37 PM Click Here to See the Profile for Ted Todd Edit/Delete Message
Ray,

Ernesto Miranda lived from 1941 to 1976 when he was killed in a knife fight over some loose change on the bar. Ironically, the man who later admitted killing Miranda, had his confession supressed for.......you got it, a Miranda Violation.

Ted

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Barry C
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posted 12-19-2007 11:55 AM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Here's the link to the case to which I referred some time back. It's a Sixth Amendment issue, but the same reasoning would likely hold for Fifth Amendment issues, so, my solution (and I'm not a lawyer) was to change my waiver to indicate it was for pre, in and post-test discussions - with me or any other investigators.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=991021

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skipwebb
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posted 12-19-2007 02:30 PM Click Here to See the Profile for skipwebb Click Here to Email skipwebb Edit/Delete Message
Hey Barry, We have this wording on our polygraph consent forms:

a. that should I refuse to undergo a polygraph examination, no adverse action may be taken against me based solely on my refusal.

b. that I have the right to talk privately with a lawyer before, during and after the instrument portion(s) of the polygraph examination.

c. that the examination area is equipped with a two-way mirror or observation device.

d. that the examination will be monitored/recorded.

e. that questioning may occur before, during and after the instrument portion(s) of the polygraph examination.

f. that anything I say or do during the polygraph examination may be used against me in any administrative, military or judicial proceedings.

g. that the polygraph examination will not be conducted without my voluntary consent and even though I am now giving my consent, I can withdraw it at any time and the examination will be stopped.

Pretty much covers everything. This is addition to the Miranda Warning and Waiver
Form.

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rcgilford
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posted 12-19-2007 04:17 PM Click Here to See the Profile for rcgilford Click Here to Email rcgilford Edit/Delete Message
This is the wording on our form:

1. I do not have to answer any questions._____

2. I may discontinue the polygraph examination at any time._____

3. I may leave at any time._____

4. The polygraph room is equipped with an observation mirror and the polygraph examination may be monitored or recorded._____

5. I will be asked questions before, during and after the polygraph examination._____

6. All information obtained during this interview may be provided to the individual that requested this examination._____

I think #5 covers it. We have another form we use in addition to the above form if it is a situation that occurs after 6th amendment rights attach.

On a side note, if I do a test for a defense lawyer, or after the examinee has an attorney, my agreement with the defense attorney is that I will not interrogate after the test. I just work under the assumption that the defense lawyer will advise his client not to answer questions. It seems to help both the defense and the state in that they both then know, or at least have a good idea, what they are dealing with.

[This message has been edited by rcgilford (edited 12-19-2007).]

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Barry C
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posted 12-19-2007 04:23 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Good stuff. Maybe we could post a model document link right here. I might steal some language from Skipp's post. What else might I be missing?

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Buster
Member
posted 12-19-2007 07:32 PM Click Here to See the Profile for Buster Click Here to Email Buster Edit/Delete Message
That's similar to mine. In my state you do not have to tell the subject he is being recorded, but it's on my form anyway.

Do you guys get a post test signature stating they knew they could leave at anytime and they were not threatened or made any promises during the test?

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Barry C
Member
posted 12-19-2007 07:56 PM Click Here to See the Profile for Barry C Click Here to Email Barry C Edit/Delete Message
Some guys up here do. I don't because I never remember it, and I've never thought about pulling it out after saying some not-so-nice things to some not-so-nice people. I usually ask the question I got from one of the W/Z folks: "Is there anything I could have done to make this easier for you?" You get lots of nice compliments for the tape, and you can ask if they felt well treated etc, after testing the waters so to speak.

Do you have good luck with the forms? They'd be a prosecutor's dream, but I'd suspect the defense would just argue he felt intimidate into signing it so he could leave, blah, blah, blah.

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rnelson
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posted 12-19-2007 09:11 PM Click Here to See the Profile for rnelson Click Here to Email rnelson Edit/Delete Message
OK, here goes.
http://www.raymondnelson.us/other/Authorization_and_release_2007.pdf

Initialing each item, is at least pretending to read it.

I could read it to an illiterate person and have them X each item, all on video, if I had to.

If they ask about something, its usually about meds, privilege, or the legaleze that sez' they have to promise not to beat me up or sue me just for doing my job.

I also always get a medication list, and list all medications in the report.

r

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Buster
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posted 12-19-2007 09:36 PM Click Here to See the Profile for Buster Click Here to Email Buster Edit/Delete Message
Nelson, you are amazing! I have a form, but I may use yours in conjunction. Thanx.

Barry, the forms have not come into play yet for me, remember however, I am a rookie.

I usually use the line the "You must take this exam and if you attempt to leave at anytime the attachments on your chest will emit a shock" Then I make them sign it as I point the OC at them.

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J.B. McCloughan
Administrator
posted 12-19-2007 10:55 PM Click Here to See the Profile for J.B. McCloughan Click Here to Email J.B. McCloughan Edit/Delete Message
Here are the rights that I recite on a daily basis (this is from memory not the form):

(Polygraph Waiver)

You have the right to refuse or accept the examination.

You cannot be discharged from employment simply because you so refuse or accept the examination.

You cannot be denied employment simply because you refuse or accept the examination.

You have the right to halt an examination in progress at any time.

You are not required to answer any question or give any information.

Any information you give may be used against you or made available to the party requesting the examination, unless otherwise specified and agree to in writing.

(Miranda Waiver)

You have the right to remain silent.

Anything you say can and will be use against you in a court of law.

You have the right to a lawyer and to have him or her present with you during any questing.

If you cannot afford a lawyer, one will be appointed to represent you at public expense.

If you waive your right to remain silent and later wish to stop answering questions, the questions will stop.

If you waive your right to have a lawyer present and later change your mind, the questioning will stop until you have talked with a lawyer.

(Waiver)

I understand each of these rights that have been explained to me. (Write answer and initial)

I am willing to give up these rights and answer questions at this time. (Write answer and initial)

(Statement)

I am willing to take a polygraph examination consisting of a testing phase and questioning before and after.

I understand that I have the right to remain silent and that anything I say during the testing phase and questioning before and after can be used against me in a court of law.

I further understand that I may stop the examination at any time and exercise that right.

I understand that the polygraph examination cannot be conducted with a lawyer actually present in the examination room and I am willing to waive his or her presence. However, I understand that I have the right to talk with and have the assistance of a lawyer at any time during the testing phase and questioning before and after and that I may stop the test of questioning at any time and exercise that right.
No promises or threats have been made to me and no pressure of any kind has been used against me.

This statement has been read to me, I understand each of these rights, am willing to waive these rights and take a polygraph examination at this time.

(Signature) (Date & Time)

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