"But They Didn't Read Me My Rights:" What Difference Does That Make?
In my initial meetings with potential clients, I am frequently told "he didn't read me my rights." The client is referring, of course, to your rights under Miranda v. Arizona, 384 U.S. 436 (1966), to be advised of your right to have an attorney present during any police questioning, etc. Unfortunately, many people have only a vague understanding of this rule, so here are just a few pointers to keep in mind.
If a statement is indeed obtained without giving the Miranda warnings, it is quite likely that the remedy that the court will apply is to suppress the statement - meaning it cannot be used against the defendant. But in many cases, the suspect makes no statement, making the presence or Miranda warnings irrelevant. Likewise, if a statement is given but it is largely exculpatory and the state does not seek its introduction, it will not matter whether Miranda warnings are given. So Miranda warnings are only relevant in that class of cases in which the defendant makes a statement and the state seeks to introduce the statement in its case in chief.
But that is only the beginning of the inquiry: what if that statement that the suspect gives leads the police to look somewhere else for other evidence? If the suspect says, "you got me, I did it and I hid the gun in the bushes over there," and the police find the gun in the bushes, can it be admitted? The answer is that if the initial statement was taken in violation of Miranda, then no, the gun cannot be admitted because its discovery came directly from the statement that the suspect made.
But what if the gun was lying in the middle of the street? Well, it would have been discovered anyway, and the mere fact that the suspect mentioned it will probably not affect admissibility.
What about statements made by the suspect immediately upon his arrest, even before the police have a chance to take him into custody? Those statements are usually ruled admissible - and they are very often quite damaging. Miranda warnings only apply to custodial interrogation. So the statement must have been made in response to interrogation - voluntary statements that are not solicited by the police are not covered by Miranda. And statements made outside of the custodial arena are not covered by Miranda either. So if you appear at the police station because they asked you to come by and answer some questions, it does not matter if they read you Miranda warnings, since your responses are not responses to "custodial interrogation."
Let's take a look at a couple of recent decisions to see these issues in real life cases. In State v. Grant, the Connecticut Supreme Court dealt with a case in which the defendant was given Miranda warnings at the time of his arrest on the street. He immediately responded that he thought there must be some mistake because he had already spoken to officers and thought he had been cleared. The arresting officers told him his fingerprint had been found on the victim's car and his blood was found at the scene of her murder. Once at the station, the defendant first said he wanted to speak to an attorney, but then volunteered that he didn't know where he was when the victim was murdered and he suffers from blackouts. The Court said that since these statements were not elicited in response to questioning by the police, they were not made in violation of Miranda and were properly admitted at trial against the defendant.
Then there is the case of People v. Elmarr, in which the Colorado Supreme Court was asked to rule on the admissibility of a statement made by a suspect who rode with the police to the station after they informed him that his wife was dead. Even though he was never placed in handcuffs and the statements in question were given before he was formally charged with any crime, the Court nonetheless ordered suppression of the statements. The Court felt that the environment in which the questioning took place, the ride in the police car, the confined room the suspect was questioned in, all amounted to "custodial interrogation" under Miranda and the warnings should have been given.
These cases illustrate that the presence or absence of Miranda warnings is only the beginning of the inquiry, not the end.
The following article first appeared in the Wilmington News Journal on December 31, 2007
Criminal History Records Are Damaging Innocent People
A recent News Journal series on the plight of Kevin Allen illustrates a chronic problem in criminal justice that cries out for a remedy. We read the story of Mr. Allen, whose past life as a drug dealer continues to haunt him even as he tries to live a new one as a stay at home parent and active member of the PTA. Because a police officer had ready access to a data base source identifying Mr. Allen's criminal history, he was pulled over and his car was searched.
Criminal history records were the subject of legislation years ago, long before access to them was anything approaching their availability today. Cases were dealt with on their merits with little thought about the criminal record being created because most employers and other decision makers were not equipped to dig into the dust bins of paper to determine what a defendant's criminal history actually was.
Today, a policeman sitting at a red light can call up your criminal record. Likewise, employers of even unskilled labor - a traditional entry point for ex convicts - can subscribe to a service for a few dollars per month and screen every applicant for a criminal background at the push of a button. The internet is full of unintended consequences, and one of them is that incomplete, inaccurate and sloppily kept data about us is kept and transmitted to others who make decisions based on it.
In a criminal case, the police make arrests and grand juries indict on "probable cause" which is to say, a suspicion of guilt, but hardly ironclad proof. There is an old joke that a prosecutor could indict a ham sandwich if he wanted to. This is apparently a policy decision we have made as a society that it's better to bring the matter to court than investigate exhaustively every case the police handle. But because the "truth point" - the place where the accused either admits guilt or gets convicted -- is further downstream, the arrest and indictment are really just documents that help frame the issue. They are evidence of nothing. And given our addiction to plea bargaining, it is rare that a defendant pleads guilty (or is convicted of) all of the charges in an indictment. Prosecutors, knowing a plea is the far more likely result, frequently overcharge in the indictment - these days using the threat of minimum mandatory jail sentences - and bargain the charges back down again to something approximating the offender's actual criminal responsibility.
Because of this inflation and deflation of criminal charges as a case moves through the system, the "criminal record" often looks far worse than the resulting admission or finding of guilt. Nonetheless, the original charges are available for potential employers and other decision makers to see. Imagine if Kevin Allen - for all the world a man who has turned his life around and is living the boring but clean life of a suburban dad -had been looking for a job with a recent arrest for drug trafficking on his record. Would any employer really care that the record showed that the charges were dismissed? Will the next police officer that pulls up behind him at a stop light even notice that the charges were dismissed? Kevin Allen was in possession of a laxative, not cocaine. The charges were incorrect; they were false; it was a lie. He was in fact not guilty of that offense or any other offense anything like that offense. But the record does not show that. It says simply that the case was dismissed. It does not matter. And that is not right.
Rightly or wrongly, employers are quite rigid in hiring people with criminal records and their rigidity shows no sign of weakening as their access to data grows each year. Since it does not appear that movement can be stopped, the least we can do is demand that the data they get reflects some element of truth and not the hypotheses, suppositions, gossip, hearsay and innuendo that is inherent in an unproven, untested police arrest or indictment.
