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Author
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Topic: Admissable Statements
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J.B. McCloughan
Member
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posted 03-31-2005 01:49 PM
  
In the public forum a discourse has arisen out of the topic of the admissibility of a subjects statement absent Miranda warnings. I am not an attorney but, as a general rule, it is generally known that custodial interrogation is the standard of review of the need for pre-Miranda warnings. For a current review of this standard, follow the link provided below to the US Supreme Court.
http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecour tus.gov/opinions/03pdf/02-1183.pdf P.S. Please excuse any misspelled words. [This message has been edited by J.B. McCloughan (edited 03-31-2005).] IP: Logged |
sackett
Moderator
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posted 03-31-2005 03:15 PM
J.B.,it seems you just supported my statements on the open discussion. Maybe not...? You cited a US SC opinion, which pertained to a specific case of investigation, based on criminal information obtained, concerning a specific allegation/violation reportedly to have occured and evidence gained thereof. This case was not a general administrative interview of a witness or victim, in which no specific suspicion was present and I don't believe this is of a similar nature to be invoked as legal protocol. Having said that, then I would suggest that if you and Ted are correct, and that during the conduct of a pre-employment interview (regardless of type) that if ANY applicant admits to a crime, and the person receiving that information is a sworn officer, then an arrest is obligated by oath to take place and we would never get through most of our procedures. Furthermore, if this is the case, and an arrest is not made, then the "receiving officer" is negligent by failing to perform their duty. This is my rationale that admissions are not acceptable or admissable as criminal evidence to a crime or usable against the applicant at any later date or time. Quite a confusing issue and ethical dilema for sworn members, if you and Ted are correct. Jim P.S. Does anyone know a good lawyer...? :-) IP: Logged |
Capstun
Member
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posted 03-31-2005 03:31 PM
The officer is not negligent in not arresting at the time the statements are made. Merely confessing to a crime is not sufficient to arrest. You must have other evidence that a crime was committed. Therefore, an investigation, of at least a limited nature, must take place. If an examinee confesses to me that he killed his neighbor in 1993, I cannot arrest him on this alone. I will have to research where he lived, was there a dead body? What jurisdiction?In the 1990's I spent 1 year with the FBI on an OCEDEF task force and then 2 1/2 years undercover as a special agent with the DEA. In the federal system an agent cannot make an arrest without a federal arrest warrant or the permission of the US Attorney, unless he witnesses the crime, and then the crime has to involve a federal quesiton. So, we are not negligent if we fail to arrest at the time of confession, but may be negligent if we in fact do arrest on the confession alone. Jim Webb IP: Logged |
Capstun
Member
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posted 03-31-2005 03:32 PM
Sorry about the spelling. I'm trying to type the post, answer the phone and write a report, all at the same time.Jim IP: Logged |
Barry C
Member
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posted 03-31-2005 05:35 PM
Yes, the courts have said over and over again an arrest is discretionary. Even with a warrant there are times when an arrest will not be prudent, and the courts have recognized that.Just as a prosecutor has the option of charging or not charging, so does an individual officer. After all, do you really want to get a speeding ticket instead of a warning? Keep in mind the clock starts ticking as soon as an arrest is made. If all your ducks aren't lined up in time, the courts let the guy go. And your prosecutor probably isn't going to want you to arrest the guy until you have enough (in the prosecutor's mind) for a conviction (unless your guy's dangerous, and they'll act on less, i.e., PC, with the expectation you'll dig up the rest soon). IP: Logged |
Barry C
Member
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posted 03-31-2005 06:18 PM
Jim,My friend in the AG's Office says there are few, if any, good "lawyers"; however, she considers most all prosecutors good "attorneys." (Hey, it makes her feel better.) I do know a few good lawyers, but because they are good, they would argue both sides of this and not make a decision. (Just like my weatherman tells me he thinks it'll rain because of X, but his computer thinks it'll be sunny because of Y. How helpful!) I seldom read people their rights. I usually set up my interviews to avoid telling them about them if I can. For example, I'll interview a person in his home if I think it'll work (not my preference). Even when I get them to come into the station, I make sure everything is voluntary / non-custodial and avoid the Miranda issue. It's important to note the courts have said custody is an objective standard. The subjective thoughts of the defendant are irrelevant. You could have a warrant in your back pocket for a petty theft and interview the defendant in a non-custodial situation about a murder, tell him he's free to go at any time (a lie), get his confession with no Miranda, and lock him up after on the unrelated warrant and the murder, and the confession would be legal in most states. (I don't suggest that method though. Some judges look backwards to find custody even though it's not there as a reasonable person would have felt free to leave. I'm not making my example up though. We had a similar case here in Maine some years ago our Law Court ruled on; though I don't think it was a murder case.) IP: Logged |
Ned
Member
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posted 03-31-2005 06:40 PM
Here is my $.02. When DoD conducted background investigations, the applicant was told up front during a Privacy Act advisement that the information they provided could be provided to law enforcement agencies, as well as other federal agencies. No rights advisement / Miranda Warning is provided during these clearance interviews if the investigator is a civilian. There have been cases when admissions / confessions to significant undetected crimes were successfully referred to law enforcement agencies for prosecution. Clearance applicants taking a specific issue polygraph exam are given a rights advisement at the onset of the pre-test interview. Admissions / confessions to significant undetected crimes can be referred to appropriate local, state, or federal law enforcement agencies. IP: Logged |
sackett
Moderator
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posted 04-01-2005 08:06 AM
All, interesting discussion! Being a "black and white" kinda guy, I was having trouble with the concept that the correct answer for PurpleP (on the open board) was a definitive "maybe." No, he can't be arrested for the information he provides, but, the information could be a cataylst for an investigation which could then result in arrest. [Ted, we'll settle on a Bud Lite out of fairness, cuz I'm a nice guy]
I now understand that the discrecion of whether to report criminal information (for investigation) is left to the examiner collecting the information and is totally subjective.
My question now becomes, where is that subjective line? Do we only report murder, rapes and robberies? What about frauds, forgeries and sexual abuse...? Is the defining factor what we, as the examiner collecting the information, believe can be prosecuted? Or is there some other ethical guidelines established we should follow? I'm looking for clarification on what is right and what is wrong. Jim [This message has been edited by sackett (edited 04-01-2005).] IP: Logged |
Ted Todd
Member
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posted 04-01-2005 11:22 AM
OK-What I want to know here is who the heck reinserted Sackett's feeding tube?Jim, I think we might be trying to compare apples and oranges here so let me help clarify the issue. I am in California where if the laws aren't already #*@& Up, they will be soon. Secondly, I am a sworn peace officer and that status does not change when I do a private (pre-employment, infidelity, etc.) test. Hence, my private practice is limited to non-criminal and pre-employment testing. Now let's say a guy comes in and takes a pre-employment poly to be a cop. In the interview, he tells me he had molested his 13 year old neighbor a year ago. I am mandated by law to disclose this information to the proper law enforcement agency. No, I won't arrest the guy on the spot but, it is only a matter of time before he goes to jail. Additionally, everything he told me CAN and WILL be used against him at trial. Neil(Barker?), addressed this very issue at AAPP in Vancouver. Infact,the class had an open discussion on just how many lateral candidates were admitting to crimes such as taking home evidence instead of destroying it(such as an old collectible handgun for example).The majority of the class said that criminal cases are filed by their agency as a result of criminal admission made during a pre-employment polygraph. Nobody(even in good ole' "Kaahleefornia") is going to take issue with the guy who admits to stealing a candy bar last week.(Some agencies may even hire the guy !!!LOL). If however, you admit to a serious prosecutable crime during a pre-employment exam, you will more than likely end up employeed as a trustee at our county jail. Now keep in mind, that this whole scenario may be completely different for the civilian or non-sworn examiner. I just don't know! Additionally, Miranda is never an issue in a pre-employment polygraph because there is no custody and the entire process is voluntary. If any research on Miranda needs to be conducted, I nominate Jack because it was his state (V. Arizona)that caused the whole damn Miranda thing in the first place!! Ted [This message has been edited by Ted Todd (edited 04-01-2005).] IP: Logged |
sackett
Moderator
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posted 04-01-2005 11:45 AM
What drinking tube.....?Anyway, that clarified it (mostly), thanks Ted. I also liked the way you forwarded blame to Jack, very smooth and eloquent... But, then again, anything for beeeeeerrrr!
:-) U gunna be at Chicago? Jim IP: Logged |
Ted Todd
Member
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posted 04-01-2005 12:31 PM
Jim,This electronic ankle bracelet will keep me pretty close to home for the next 90 days so I will have to miss Chicago. I don't think that town could handle both of us at the same time anyways! I will be in Maine in 2006 for sure. I have to buy Berry C a Geritol shooter! I will hopefully run into you all before then.
Stay safe! Ted [This message has been edited by Ted Todd (edited 04-01-2005).] IP: Logged |
J L Ogilvie
Moderator
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posted 04-01-2005 02:31 PM
Quit blaming me. I lost the drinking tube long ago. Substituted a food tube.  We had a pre-employment last year that admitted to theft from his x-girl friend. She had reported a burglary but had no idea it was him. He was disqualified from the hiring process, duh. Then a few days later got a visit from some detectives with a warrant who found all the missing stuff in his apartment. Surprise! He spent some time with the Sheriff and his associates for awhile. We have also had several admitted sex offenders who are very surprised when detectives called on them. My surprise is that they were dumb enough to tell us, let alone think they would make a good cop. Jack, president for the FAF (fight against food). Ted I am sorry we will not see you in Chicago, you weeny. Bye ------------------
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Barry C
Member
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posted 04-01-2005 03:39 PM
Just to add a little more confusion to the issue. You could arrest based on an admission because you have probable cause to believe a crime was committed, but it's a waste of time because without the investigation to prove the corpus, you're just spinning your wheels. So, if a guy told you he murdered his mother, but he won't tell you where the body is, you'd probably arrest him and hold him based on PC. BUT, you've got to find a body (usually) and put the rest of your case together by trial time, and you can bet the defendant will be demanding his speedy trial - within days instead of months or years.Now it's as clear a mud. IP: Logged | |
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