The Fifth Amendment to the United States Constitution gives you the right to refuse to answer questions by the police where your answers could later be used by the prosecutor to incriminate you in a court of law. Every effort seems to have been made to make certain that someone suspected of committing a crime understands this constitutionally protected right. After all, a proper reading of your Miranda Warnings by a police officer clearly conveys the message that:
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You don’t have to talk to me at all;
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If you do wish to talk to me, anything you say, can and will be used against you in court;
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Before you talk to me, you are entitled to have a lawyer present to protect your best interests; and
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Even if you can’t afford to pay for a lawyer, one will be provided to you without charge.
Despite the Miranda warnings, it is uncanny how many clients visit my St. Petersburg law office and tell me that they spoke to the police about the matter for which they were under investigation. I believe there must be something built into the DNA of good people who exercise poor judgment and perhaps run afoul of the law. They seem to possess an inclination to talk about the matter. Perhaps they believe that “owning up” to the conduct is the first step toward rehabilitation and that making an admission to the police officer will make them feel better.
When Do They Have to Read Me Miranda?
I am often asked the question “when is a police officer required to read a suspect his Miranda Rights and what are the consequences of his failure to do so?” In a nutshell, the answer to that question is a two pronged test. The suspect must be in “custody” and the police officer must intend to interrogate him. If both of those elements are not present, than Miranda is not required. On the other hand, if the suspect is in custody and questioned without benefit of having first being read and waived his Miranda rights, then the questions and answers become inadmissible as lawful evidence in court. Unlike television or the movies, the charge is not summarily dismissed. Rather, the prosecutor is forced to go forward in seeking a conviction with whatever remaining “admissible” evidence is available.
The Dangers Associated With Speaking to the Police
When we are retained to defend a Pinellas County client on a criminal charge, we routinely file a “Demand for Discovery.” Under Rule 3.220 of the Florida Rules of Criminal Procedure, this legal pleading mandates that the State Attorney’s Office then disclose to us all incriminating and exculpatory evidence. This obligation on the part of the prosecutor includes timely providing us with the complete narrative “offense” or “police” report drafted by the investigating police officer. The report will typically set forth the facts and circumstances leading up to the arrest. It will also include any statements allegedly made by the accused. It is important to understand that this report is not contemporaneously drafted at the time of the police investigation. Rather, it is completed at the end of the police officer’s shift, or within the following few days. This can be a problem, in light of the voluminous number of interactions that a police officer has with members of the public on any given day.
When the investigating police officer ultimately types up the report, it is a good bet that it will be worded in such a manner to attempt to justify his earlier decision to arrest the suspect. We find that the narrative reports are often drafted in a “slanted” or biased manner. When our clients review the offense report, they sometimes express displeasure at the lack of accuracy associated with the recitation of the facts. However, they almost always take issue with the correctness of the statements they are alleged to have made.
When you make statements to the police, you assume the following risks:
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Your statement may later be written or typed in the offense report inaccurately;
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Your statement may be written or typed in the offense report out of the proper context;
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The police report may reflect an incomplete version of your statement. For example, it could lack an important follow up sentence that was made by you. Because the report lacks the totality of your oral statement, the written statement will likely convey a meaning other than what you actually conveyed to the police officer.
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Your statement and account of the facts may be compared with statements made by other witnesses in an effort to show inconsistencies and to damage your credibility.
It is for the foregoing reasons, that criminal defense attorneys overwhelmingly advise clients not to make spontaneous statements, never waive their Miranda Rights and not to participate in interrogations conducted by law enforcement.
Failure to Record a Confession Can Lead to an Unjust Result
Feverishly taking notes while a suspect answers questions or later drafting a police report from memory can hardly be considered an accurate method of memorializing a suspect’s statements. When you consider the enormous weight that a jury will attribute to the accused’s own words, it would seem that justice would demand a careful preservation of this testimonial evidence. This month, even the International Association of Chiefs of Police warned that “confessions may need to be recorded in order to withstand increased judicial or legislative scrutiny in the coming years.”
Then, there are those circumstances where a prolonged police interrogation will employ coercive and deceptive tactics that lead some innocent people to confess to a crime they never committed. If you think that rarely occurs, you would be wrong. The Innocence Project is a non-profit legal group who help people appeal wrongful convictions. Since 1992, the organization’s efforts have led to the release of 316 wrongfully incarcerated people, including 18 individuals who were awaiting the imposition of the death penalty. Statistics released by the Innocence Project reveal that in approximately 25% of DNA exonerated cases, the accused had confessed or admitted to the crime! (See Innocence Project video below)
Recording a confession takes the guess work out of a law enforcement officer’s reporting of what statements the accused allegedly made. It would also preserve and reveal skillful or abusive tactics that may have been employed to coerce a truthful or otherwise fabricated confession from a subject. In the past, a police officer was forced to use an interrogation room equipped with “a reel to reel” or cassette recorder. But today’s police officer has at his disposal a wide range of small portable electronic recording devices. This even includes the smart phone already carried in his pocket. Thus, excessive cost to the taxpayer is not a legitimate consideration.
Florida Legislature Defeats Efforts to Record Confessions
Several states, including Maine, Minnesota, Illinois and Alaska impose a recording requirement for confessions. In addition, approximately 450 police departments throughout the country have voluntarily adopted that policy. Newly drafted Florida House Bill 1095 would have required the recording of statements made by suspects for certain “covered offenses.” In our opinion, choosing some crimes over others appears to be a tacit admission that injustices are in fact taking place... but we just won’t worry about the injustice associated with lesser offenses. At the least, however, this new law would have been a step in the right direction. Unfortunately, that Bill died in the Criminal Justice Sub-Committee on May 2nd, 2014. As a result, Florida law remains unchanged and the police are currently not required to record a suspect’s confession.
Pinellas Criminal Defense Lawyers You Can Count On!
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At Russo & Russo, we are experienced Attorneys who handle cases arising out of St. Petersburg, Clearwater, and the Pinellas County area.
Former State Prosecutors
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Related Links:
How to Handle a Call From a Family Member or Friend from the Jail
The Justice Report: Electronic Recording of Custodial Interrogations
How to Avoid Publicity After Your Arrest
Pinellas County Criminal Record Search
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