pageok
pageok
pageok
Calling the Target as An Investigative Tactic:
Imagine you're a police detective and you're investigating a suspect who has not yet been charged. Why not call the suspect at home (or on his cell phone), explain the allegations against him, and politely ask him to respond?

  If the suspect is really smart, he'll refuse to speak. But as we know from the Miranda context, a lot of suspects won't be smart: I would guess that a lot of suspects would confess at least in part. The call won't trigger Miranda because the suspect obviously is not in custody; and it won't violate the Sixth Amendment because no charges have been filed. Plus it's cheap and easy, and its informality may make suspects more willing to talk. Why not try it? (I'm assuming the suspect already knows he is under investigation or else the police don't mind informing him of it.)

  Okay, now let's change hats. Imagine you're a legislator rather than a police detective. Would you support a law prohibiting law enforcement officers from calling suspects on the phone in an effort to get them to make incriminating statements?
Thorley Winston (mail) (www):
Okay, now let's change hats. Imagine you're a legislator rather than a police detective. Would you support a law prohibiting law enforcement officers from calling suspects on the phone in an effort to get them to make incriminating statements?


My first thought is "no, of course not" but my second thought is "what aren't you telling us?" I'll go with my second thought.

;)
6.27.2007 3:51pm
Nathan_M (mail):
I can't see any logic behind a law like that.

I would support a law requiring the police record the telephone calls, though.
6.27.2007 3:52pm
David Huberman (mail):
I would not support such a law. Police should be free to use the phone to conduct investigations. Furthermore, under the Roberts court, I think Miranda is on its way out, so I forsee no problems there . . .
6.27.2007 3:54pm
whackjobbbb:
OK, I know exactly where to take this, Kerr.

Let's just have the D.C. cops get Cheney on the phone, and chat him up. WE CAN FINALLY NAIL THAT SOB!

--

But seriously, I suspect cops already engage in this process sometimes, in routine investigations. On the phone or live in person, they're gonna question folks. And if I was a cop, I'd think I'd have better uses for my time than chatting up somebody I've never met, over the phone, where I can't somehow use my other senses to corroborate what it is I'm hearing.
6.27.2007 3:56pm
Strick:
Is the phone that crucial to the question? After all, Lt. Columbo basically ended every episode doing this sort of thing in person rather than by phone.

But no, I assume that a police detective should have the right to ask the suspect any germane line of questioning, even one this direct and incriminating, by phone, email or in person and the suspect should have the right to refuse to answer and ask for an attorney. No additional laws seem necessary.
6.27.2007 3:58pm
Nathan_M (mail):

And if I was a cop, I'd think I'd have better uses for my time than chatting up somebody I've never met, over the phone, where I can't somehow use my other senses to corroborate what it is I'm hearing.

Interestingly enough, studies have shown that police are no better than college students at telling if a person is lying. The only difference is that police officers are more confident in their judgments.
6.27.2007 3:59pm
Christopher Cooke (mail):
Orin:

I used to make similar such calls, all the time, when I was an SEC attorney. Typically, we made them during insider trading investigations, within a few days' of someone's highly questionable trading. We would simply call up the person, say who we were, but, under SEC practice, we were obliged to tell the suspect of a list of rights the person had ---e.g. he or she didn't have to talk to us, he or should could have an attorney, he or she had to tell us the truth or could be charged with a felony if they didn't, and we could use the information they gave us for our investigation and make it available to other law enforcement agencies, such as the FBI. Sometimes, an FBI agent and I would simply stop by someone's house, or call them jointly, but many times we just call the "suspects" at home.

Guess what? This tactic often worked very well, even after we advised people of these rights. My take is that people feel anxious to tell you something, so you won't suspect them. Anyway, the DOJ wound up getting indictments against people for what they admitted to us during such phone calls.

So, would I support a blanket legislative ban on such calls? No. Should the police or FBI have to advise people of rights, similar to the SEC, if they make such calls? I would probably say no, but I could see arguments for doing so.

By the way, as an attorney now representing people in SEC matters, I advise clients and prospective clients NOT to talk to someone over the phone, and to get an attorney to accompany them to a face to face interview.
6.27.2007 4:03pm
whit:
why would you possibly make policy to make investigations more difficult AND to make them less likely to lead to the truth (that's what confessions help to do. determine the truth)?

of course miranda does not apply, even if you agree that the constitution requires notification when you have both CUSTODY and INTERROGATION?

the whole point of the "logic" behind the miranda decision was that custodial interrogations were inherently coercive blah blah blah.

how is a phone conversation inherently coercive? you can always hang up. you don't have frank sipowicz hanging over your head and smackin' you around.

there is no constitutional (or logical requirement) that suspects have to be reminded of their rights (and it's a reminder. no person over the age of 5 in the USA doesn't KNOW their miranda rights. they watch TV) before they incriminate themself OR help exonerate themself (which talking to police can do as well, and i have had it happen dozens of times).

also, fwiw, in some jurisdictions, even PHONE INTERROGATIONS require miranda. that's because the state supreme courts have adopted a "focus standard". i know. i used to work in one of those states. it wasn't cause of legislation. it was because of "judicial review".

also, contrary to what is implied, interrogations are not designed to elicit confessions or incriminate people. they are designed as an investigative tool to gather evidence - that evidence may be just as likely to exonerate/point suspicion elsewhere as it is to incriminate you. that's largely related to whether you actually "did it."
6.27.2007 4:30pm
Oren (mail):
I second the motion to have all these calls recorded or, if it isn't recorded, to credit the defendant's version of the call.
6.27.2007 4:44pm
whit:
if my state would allow one party consent i would agree.
6.27.2007 4:48pm
whit:
police should be allowed to tape citizens and citizens should be allowed to tape cops. keeps both honest. not all states allow this
6.27.2007 4:50pm
Fub:
I see some problems with a phone interview approach that would be much less likely in a face-to-face interview.

Recording: If the cop electronically records the call without notice to suspect, there can be a problem depending on the state's wiretap statutes.

Potential for misidentification, or outright frame-up: Cop calls suspect Larry's number and asks for Larry. Curley (who actually committed the crime) answers, pretends to be Larry (and for sake of argument imitates Larry's voice sufficiently to fool cop), and gives cop ample confession. How is the cop necessarily going to know?

Potential for police misconduct: Corrupt cop calls Joe, who is at home but not answering phone. Answering machine takes the call. Cop stays on line silently, and eventually hangs up. Joe eventually notices hangup call with no message on answering machine, and resets machine, erasing any record of call. Cop makes contemporaneous note that Joe has confessed to crime. How can Joe prove otherwise? At least with a misreported face-to-face interview, there is little question whether the interview even happened. With a fake phone interview, there is a pin register record that the contact did happen, only it didn't really happen.

These scenarios are only off the top of the head. Maybe upthread Christopher Cooke's actual experience with phone contacts and SEC internal rules and procedures for them offers ways to prevent these problems.
6.27.2007 5:04pm
Hattio (mail):
whit,
I have to take issue with your assertion that anybody over the age of 5 knows what their rights are. There are many religious sects that either discourage or outright ban television viewing. Lots of people also limit what their children can see (though I know the 5 year old was hyperbole, we don't often arrest children that young).
More importantly, just because people can recite the words doesn't mean they understand the concept. In Miranda or consent to search cases, you have often stated that people truly do understand their rights. I don't think citing to the number of times your average American has seen them on Law and Order really helps your case. How often on cop shows do they ignore the consent to search/enter. How many times does Briscoe claim to hear screaming when the apartment manager is wary of letting cops enter? If people's impressions of their rights truly comes from cop shows, then people DON'T understand their rights.
And, of course, back to the first point, you are forgetting about recent immigrants.
6.27.2007 5:07pm
Kelvin McCabe:
How exactly is it switching hats from the police officer to a legislator? Both could give a flying sh*t for a criminal suspects rights. One for the appearance of being "tough on crime" for electability purposes, the other, for making their job easier. That being said...

I think the problem a lot of people are missing here is the fact that if the cop were to do this on the street, a sort of "stop and talk" about a crime that has already been committed and which the cops believe the suspect is involved and the purpose of the talk is to get incriminating information, then the 5th amendment should apply and the suspect should be told he doesnt have to answer.

Doing the same over the phone for the same purpose, to get incriminating information from a suspect, but because of the setting, you wouldnt need to administer Miranda, it would seem the officer is acting in bad faith in that he is intentionally and purposefully circumventing the suspect's constitutional rights. The cop, who initiates the call, is no different than the officer who manufactures exigent circumstances by his own actions to excuse the fact that they didn't have a warrant. The police are not allowed to create exigent circumstances to get around the 4th amend, and they shouldnt be allowed to create this phone-interrogation scheme to get around the 5th.

If the cops purpose is to get incriminating information from a suspect he already believes is invovled in the crime, he should get off his lazy ass, do some investigating and get an arrest warrant!!

If we were to allow this legislation to happen, everytime a crime occurs in a given neighborhood, the cops are going to be calling every known offender within 50 blocks hoping one of em will admit to something so they can charge him. If the promotion of laziness among our nation's officers is the goal, by all means pass the bill.
6.27.2007 5:08pm
DC User (mail):

If the cops purpose is to get incriminating information from a suspect he already believes is invovled in the crime, he should get off his lazy ass, do some investigating and get an arrest warrant!!
Kelvin McCabe


I hate it when people use this argument. The police are investigating when they call someone up. That's part of how they get the info to support the warrant. Just as they're investigating when they follow a suspect to see whom he meets up with, or when they check with that person's associates to see what they know.
6.27.2007 5:12pm
Kelvin McCabe:
Crap, i didnt read the bill correctly. It would prohibit the practice. I am for the prohibition, but it would seem that a law of this sort would be fashioned to allow the cops to do this, not prohibit it - i was confused. Much apologies to the 50 people who will undoutedly correct my mistake.
6.27.2007 5:13pm
whit:
"How exactly is it switching hats from the police officer to a legislator? Both could give a flying sh*t for a criminal suspects rights. One for the appearance of being "tough on crime" for electability purposes, the other, for making their job easier. "

utter kneejerk anticop rubbish. what cops want is to CONVICT the guilty AND exonerate the innocent. interrogations help to do that. i have had literally dozens of people prove (or help prove) their innocence and/or point to the actual suspect during the course of interrogation.

i realize that most lawyers here have a naturally adversarial atttitude and/or believe that cops are naturally interested in avoiding suspect's rights. what i am against is INVENTING rights that do not exist.

"If the cops purpose is to get incriminating information from a suspect he already believes is invovled in the crime, he should get off his lazy ass, do some investigating and get an arrest warrant!! "

again, this shows a complete ignorance of investigative technique, fair play, and common sense. lets say the cops develop probable cause for you to have committed crime X. lets also say you are innocent. heck, lets say you have a rock solid alibi. cops call you to ask you questions about the case, you provide and alibi, and cops DON'T arrest you, cause you didn't DO it. and you provided evidence to prove that. heck, maybe you were falsely accused by a jealous ex, and cops get sufficient pc to charge THEM with making a false complaint.

cops are supposed to investigate. that means they gather evidence with the goal of determining what happened, not with the goal of "getting" somebody. if you were falsely accused of a crime, wouldn't you want the chance to tell your side of the story?

again, this is not just opinion. this is based on literally hundreds of cases i have been involved with. i have conducted scores of phone interviews and interrogations. i've gotten confessions, i've gotten invocations of the 5th, i've gotten alibis, etc. it's all good.

if nifong had done his JOB, like i reference above, the travesty never would have occurred.

also, a phone interrogation "scheme" does not GET AROUND the 5th. it does not "get around" miranda. you have no right to be advised of your miranda rights prior to interrogation. you have a (court determined, see: miranda v. arizona) to be advised of your rights when certain elements are present, like custodial interrogation.

there is NO right to be advised of miranda before you are questioned in any manner, without determination as to "does custody exist", "is the questioning interrogation" etc.

there is no circumvention of suspects rights in phone interrogations. cause there is no right to miranda in ALL interrogations (or interviews for that matter.

what you are doing is inventing rights.

also, your last paragraph is absurd. you can't charge somebody SOLELY based on a confession. there is this pesky little thing called "corpus delicti". you need something more. are you ACTUALLY a lawyer, or do you just play one on tv?
6.27.2007 5:20pm
whit:
"The police are investigating when they call someone up. That's part of how they get the info to support the warrant"

correct. it's a method of gathering evidence. just like DNA, dusting for prints, checking cell phone records, using surveillance, etc. the gathering of evidence can help EXONERATE the innocent just as it can help convict the guilty. that's a good thing.
6.27.2007 5:23pm
MDJD2B (mail):

If the promotion of laziness among our nation's officers is the goal, by all means pass the bill.



Is the goal of criminal procedure law to strengthen the work effort of cops or to punish the guilty while freeing the innocent? Presumably, it is the latter, rather than the former.

The rationale for Miranda is that interrogation while in custody is inherently coercive, and may lead to false confessions. That is not true of phone conversations.

Let the cops make their calls. They can then apply the energy they have as a result of not having to do so much legwork, and catch even more criminals.
6.27.2007 5:23pm
whit:
excellent point. as to coerciveness. that was exactly the "logic" used in miranda v. arizona. detectives are routinely referred to as armed secretaries. phone interrogatiosn (and interviews) are an excellent techinque.

also, in regards to criminal procedure, especially investigative procedure by cops is not just to achieve the punishment of the guilty, freeing of the innocent (which- the punishment/trial is the job of prosecutor, jury, judge of course), it is to determine

1) did a crime actually happen
2) can somebody be identified as a suspect
3) is there sufficient evidence to recommend charges
just as important to finding your (2) is eliminating your "NOT 2" to get all boolean.

eliminating possible suspects/persons of interest is extremely important. it helps focus an investigation, and it helps to insure that the innocent are not unduly inconvenienced, let alone arrested/convicted.
6.27.2007 5:28pm
Hattio (mail):
Whit says;

what cops want is to CONVICT the guilty AND exonerate the innocent. interrogations help to do that. i have had literally dozens of people prove (or help prove) their innocence and/or point to the actual suspect during the course of interrogation.


Wrong, unfortunately. What cops want to do is convict THOSE THEY THINK are guilty and exonerate THOSE THEY THINK are innocent. Unfortunately, cops often forget that they are not perfect. Then they expect the suspects to prove to them that they are not guilty. Unfortunately, sometimes it really is he said she said. And especially in DV cases, it can be almost impossible to even get the officers to change their minds. I've had several DV cases where the victim either told very different stories, or had collaberation by a witness with very different stories. Doesn't really matter if the cops believe the "victim" and disbelieve the "perpetrator."
6.27.2007 5:33pm
Steve:
I don't really see the argument against phone interrogations, although, in theory, there could be an evidentiary problem with establishing who was on the other end of the line.

The calls should be recorded, sure, but in-person interrogations should also be recorded. The system obviously doesn't regard that as a fatal flaw.

I'm not altogether clear on where Prof. Kerr is going with this, however. Does he simply wonder why the police don't use this tactic more often?
6.27.2007 5:34pm
Monkberrymoon (mail):

The police are not allowed to create exigent circumstances to get around the 4th amend, and they shouldnt be allowed to create this phone-interrogation scheme to get around the 5th.

I love the idea that following the law (i.e., asking an unwarned but not-in-custody person questions) is somehow "circumventing" the law.

"Hey, buddy, did you know you were speeding?"
"No, officer, I was doing 53 mph."
"Well, you were circumventing the 55 mph law by going just under the limit."
6.27.2007 5:46pm
OrinKerr:
Steve,

I posted this in part because I don't know why police don't do this more often, and in part because I wonder how we would feel if it were very common.
6.27.2007 6:02pm
George Weiss (mail):
"I posted this in part because I don't know why police don't do this more often, and in part because I wonder how we would feel if it were very common."

orin-what makes you think this isnt common? studies of polie indicate that complex investigation is relativly rare and that most crims are solvecd by 'routine investigation'..im betting this is partly why.
6.27.2007 6:29pm
OrinKerr:
George,

I teach and write in this area, and I don't think I have come across a reference to this technique. If this is indeed common, I think it would be news to a lot of people. (I should say that I have heard of it in the SEC context, as Chris Cooke explains. Just not in other settings.)
6.27.2007 6:33pm
whit:
" I've had several DV cases where the victim either told very different stories, or had collaberation by a witness with very different stories. Doesn't really matter if the cops believe the "victim" and disbelieve the "perpetrator.""

DV cases are among the most problematic. that's why i always get both sides of the story before making an arrest decision. usually, both sides are not custodial interrogation, at the threshold inquiry stage.

there are few types of cases where "victims" are more likely to lie AND point their finger at a specific suspect (vs. say a false burglary claim that is done for insurance purposes) than a DV case. the only other crime that has this level of lying are rapes. even alan dershowitz admits as much.

that's why good cops question "victims" with just as much skepticism as they question suspects. because the victim may in fact be lying. i am just as duty bound to report and act on discrepancies in a victim's story, as a suspect's story. i have had numerous cases where vigorous investigation has led "victims" to admit that they were lying, made stuff up, or stretched the truth.

frankly, i don't know what cops you talk to, but most cops i know walk into an alleged DV not prone to believing ANYBODY.

it is the politically correct domestic violence advocacy groups and "feminist groups" that have pushed for mandatory arrests in DV cases, and in my jurisdiction, it is the ONLY crime where you have no civil liability if you act in good faith. the ONLY crime. the idea is to arrest even if the facts are not clear.

so, please don't bring up dv cases to prove your point. if anything, they prove my point. cops HAVE to make DV arrests, even when they suspect the "victim" is most likely completely full of crap. it's the ONLY crime i am mandated to make an arrest on. no officer discretion.

it is also a crime where very few prosecutors want anything to do with prosecuting false claims by "victims" because that is seen as "blaming the victim" by various advocacy groups, etc.

contrary to most of the claims on this website about drug laws exception to 4th amendment, etc. i think there are far more dangers from domestic violence law than there is from drug law.

the VAWA for example, completely strips states rights AND blatantly violates the 2nd amendment.

i'd really rather stick to the topic of phone interrogations, fwiw, but don't even get me started on DV law.

also note that a recent supreme court case basically eliminated the constitutional right to confront one's accuser, and guess what - it was a DV case, not a drug case (the 911 "testimony" case)
6.27.2007 6:36pm
MikeC&F (mail):
I would support a law requiring the police record the telephone calls, though.

I think this is exactly the right view. Of course police should be allowed to call suspects. It's a non-intrusive and non-intimidating means of gathering information. It's a hell of a lot better than, "We need to go down to the station." But the calls need to be recorded to keep everyone honest.

As to why this isn't done more often: It's not as intimidating. There are a lot tricks and means of intimidation that can't be used over the phone.

By the way, if anyone is wondering why interrogations are not recorded, your answer is here.
6.27.2007 6:38pm
gab:
"Hey, buddy, did you know you were speeding?"

How is one to answer this question? By claiming the 5th?
6.27.2007 6:42pm
David M. Nieporent (www):
Monkberrymoon -- yes, it's ridiculous. Look up "smurfing," though, for a real life example of law enforcement taking that attitude.
6.27.2007 6:45pm
bittern (mail):
My joke response is that you can't use the reflector shades if you're on the phone. Probably why they don't use it.

More seriously, why do the SEC investigators tell their suspects lots of rights, but we don't expect that for our less-fancy suspects? And do you all know the answer, is that why nobody else is wondering?
6.27.2007 6:48pm
whit:
"How is one to answer this question? By claiming the 5th?"

speeding is a civil infraction, not a crime. thus, the 5th amendment doesn't apply. just like any civil case.
6.27.2007 6:48pm
Nathan_M (mail):
I suspect it's not very common, at least for serious crimes, just because it would not be anywhere near as effective as a proper interrogation.

The interrogation team of the city police department where I live have a 58% success rate in obtaining confessions. I doubt a comparable rate would be obtainable over the phone, and after a suspect has been interviewed once, they might take their lawyer's advice not to answer questions more seriously.
6.27.2007 6:52pm
Whadonna More:
Warrant judge: "What evidence do you have that the person you talked to is actually MS. Suspect?"

Po-po: "Cause I called her number."

WJ: "If that isn't probable cause I don't know what is."
6.27.2007 6:54pm
Norman Yarvin (www):
If someone called me up and claimed to be a police officer, the first thing I'd do would be to question his bona fides.

The second thing I'd do, if I'd actually committed a crime, would be to destroy evidence of it.

With the SEC, the first is an easy hurdle for them to jump, as the conversation would begin with something like "We noticed you sold 5000 shares of XYZ on Thursday". Also, for the SEC, destruction of evidence is not as important a possibility as it is for ordinary crimes, since the evidence for the sorts of things the SEC investigates is largely of a type that is not easily destroyed, and since they are usually investigating people who have a duty to keep records.
6.27.2007 6:58pm
Dave N (mail):
Whit wrote: "speeding is a civil infraction, not a crime."

In my state speeding is crime and is not civil. Speeding has potential penalties including both fines and incarceration. In the state I went to law school it was also a crime--the first case I ever prosecuted (as a 3L in a prosecutor's clinic) was for speeding
6.27.2007 7:02pm
bittern (mail):
Between the lack of intimidation possibilities, and the chance to be second-guessed as lazy, picking up the phone just doesn't seem to suit a police officer's style.

Looking for an answer on why SEC investigators ply the target with rights notifications but we don't promote that here.
6.27.2007 7:08pm
Kelvin McCabe:
What we need to ask is what is the motivation of the officer in proceeding over the phone as opposed to in person? Is it to bypass Miranda? If we start with the premise that the officer already thinks the person he is calling is the perp and the officer is simply confirming his suspicion, then i would say yes. If the cop is calling to get general information or to determine if the person should be a suspect, the situation is different and more akin to whit's theoretical "all the police want to do is convict the guilty and protect the innocent" type statements.

According to the hypo presented (as i read it), the officer already knows a crime has been committed AND thinks the person called may have been invovled. He also tells the suspect as much. This puts the situation more into line with the motivation of avoiding miranda type situations in my view.

And i stand by my blanket generalization that a majority of legislators dont care for criminal defendants' rights and my statement that any law that makes a cops job easier (as in less work) would also be applauded. Hell, 85% (estimate)of all searches are conducted without warrants, in part because of all the exceptions and also because sometimes cops just dont want to take the time to get it (and hence can find an exception to apply). Ill stand by for whit's rebuttal.
6.27.2007 7:13pm
Daniel San:
In about 12 years of criminal practice (mostly defense), I have never heard of it. I have know of the FBI have an informant call a suspect and ask for information about drugs or weapons. I have never heard an officer call to fish for a confession. I am very familiar with "knock and talks", where the officer knocks on the front door and asks whether there are any drugs inside and do you mind if I look around (often effective).

I suspect that the phone is not used because, for a good investigator, voluntary in person interviews are very effective at getting confessions. The better investigators are not usually intimidating; they are "here to help you." "We know what you did and it will be better for you if you tell me the details." Try it and fail with a phone call and you have inoculated the defendant against the in-person interview. This is just speculation. It never struck me that it might be effective. But if it works for the SEC, maybe it would work for local officers.

It is also worth remembering that the average burglar does not have a phone.
6.27.2007 7:28pm
whit:
dave, i am surprised. in many states, it used to be a crime. in most jurisdictions, it has been decrim'd.
6.27.2007 7:45pm
whit:
"What we need to ask is what is the motivation of the officer in proceeding over the phone as opposed to in person? Is it to bypass Miranda"

which is of course completely irrelevant. the officers motive for using a phone vs. in person interview is not relevant to the issue of miranda requirement, or relevant in any way. officers have a wide array of investigative techniques at their disposal. their motivation to use one vs. the other is completely irrelevant. if the officer used an undercover officer, or an informant to get close to a suspect, and the suspect confessed stuff to the undercover or the informant, that would also be admissible without miranda. miranda is a relatively narrow ruling referencing specific factors. read it.

kelvin, it's kind of hard to rebut something like your post that does not make sense, but i'll try.

the best i can tell you is to try reading miranda v. arizona, and then get back to me. it does not apply, was never meant to apply, and probably never will apply to contacts OVER THE PHONE with suspects. why? there is no custody.

the cops motivation is IRRELEVANT. lets say a cop did specifically choose a phone interrogation to "get around" miranda? so what? there is no RIGHT to miranda for phone interrogations. it's not violating a suspect's rights to ask them questions over the phone. read the decision please.

this is not an end run around anybody's rights. nobody has the RIGHT to be advised of miranda. what IS the case, is that GIVEN custodial interrogation, if one is not advised of miranda - the confession is inadmissable.

a phone interrogation is not custodial. period. the 4th amendment does not say (nor does even an activist scotus say) that miranda is required in all interrogations. read it.

also, as i said, some states can recognize MORE rights than the federal constitution recognizes. in some states (hawaii for example) miranda IS required for phone interrogations, because the standard is "focus" not "custodial interrogation". the former is a MUCH broader standard than the miranda v. arizona standard.

but thankfully, the law does not conform to what you wish it was. it is what it is. and it does not (under the federal const) require that ALL interrogations be preceded by miranda warnings. it really is that simple
6.27.2007 7:55pm
Hattio (mail):
Whit says;

frankly, i don't know what cops you talk to, but most cops i know walk into an alleged DV not prone to believing ANYBODY.

Unfortunately, most of my talking to cops is done on the stand at an evidentiary hearing or a trial. That's because usually they won't talk to me. But, my assessment of who they believe is based on who they arrest and what they write in their police reports (as well as the different ways they interview "victims" vs. interrogating "suspects"). But, of course, who they arrest brings up your second point.


it is the politically correct domestic violence advocacy groups and "feminist groups" that have pushed for mandatory arrests in DV cases, and in my jurisdiction, it is the ONLY crime where you have no civil liability if you act in good faith. the ONLY crime. the idea is to arrest even if the facts are not clear.

Haven't looked up the case law in any other jurisdiction, but in AK, they only have to arrest if they have probable cause to believe a DV crime occurred in the last 12 hours. Obviously the "crime" reported will usually be recent. But, if you don't believe them, or worse yet if their story isn't consistent, then you don't have to arrest because you don't have probable cause. The law was written to only reduce discretion in whether you arrest for recent crimes, not in whether you believe a crime was committed.
6.27.2007 8:03pm
whit:
here's an example of a type of case where i routinely use phone interrogations. protection order violations. petitioner/complainant calls to make report of an order violation by phone. claims johnny called her house in violation of a nocontact/protection/whatever order.

one piece of evidence. her statement.
another piece of evidence. is there caller ID record of the call?
another piece of evidence? does the suspect admit or deny calling her in violation of the order.

i call the suspect up. ask him if he called the petitioner?

this is a very routine example of a phone interrogation that i have done many times.

at a minimum, if i get a voicemail, i will leave a message iwth my cell phone #, advising of the case #, the claim made against the respondent, and if he wanted to call me and give me his side of the story.
6.27.2007 8:20pm
George Weiss (mail):
orin-

my only response wouldn't be that while its true that you "teach and write about law in this area" i would suggest that despite being common..it would not come up in your studies precisely because it is
1. common
and
2. not controversial.

logically-dont most criminal cases which end in guilt involve a plea agreement of some kind? isnt that essentially a similar kind of thing? why wouldn't the police try to get the guy to confess as soon as possible?

i.e the technique is clearly legal-and also clearly efficient-so its probable that its used often.

the only way to tell really would be to ask people who actually conduct criminal investigations...
6.27.2007 8:25pm
whit:
great point. i'm saying it. it is common. heck, i've done it personally dozens of times, and i'm not the only one.
6.27.2007 8:29pm
George Weiss (mail):
thanks whit
6.27.2007 8:53pm
Bruce Hayden (mail) (www):
I am usually on the side of more police oversight, but I think that this is ridiculous. Whit has explained several reasons why cops might want to do this, but I think the most obvious is that it is easier, more efficient in many cases, and, importantly these days, less harmful to the environment. Just think of the carbon offsets a police department might accrue by pushing this type of investigatory technique harder.

The reality is that the police could conceivably talk to a number of people over the phone in the time that it would take to drive to the person's location, get out of the car, and go interview him. I understand why not all investigating can be done over the phone, but the more that can be, the better in my view.

That said, I do think that these conversations should be recorded. But then, I was shocked that part of the evidence against Scooter Libby consisted of hand written notes by FBI agents. In this day and age, why can't the FBI afford to record all their interrogations, at least the ones done in a formal settings. Heck, a lot of police cars are being outfitted with video recorders these days.

I would also suggest that the cops warn those they talk to over the phone that they are intending to record, that indeed, the police are taping this conversation. The party at the other end always has the right to hang up, tell the cops that he needs to talk to his attorney, or, indeed that he won't talk to them w/o counsel, etc. But it is far easier to hang up on someone than to walk away from a cop trying to interview you.
6.27.2007 9:12pm
Bernie (mail):
I think it would be simple if every phone call from the government had a warning simillar to those annoying customer service people, you know "this call may be recorded for costomer service evaluation." A phone from the government would say " you have constitutional rights reguarding this call, if you do not know what they are press 1 now" then have a little recording play the miranda warning. Everyone would be advised of their right, but it would be so common place everyone would ignore it. It wouldn't be threatening.
6.27.2007 9:48pm
whit:
bruce. this is great.

COITus ! on duty

(Carbon Offsetting Interrogation Technique)

i am sure algore (tm) would approve.
6.27.2007 10:16pm
Steve:
cops HAVE to make DV arrests, even when they suspect the "victim" is most likely completely full of crap. it's the ONLY crime i am mandated to make an arrest on. no officer discretion.

But why do you have to make mandatory arrests? I'd love to give the cops discretion, but back when DV cases were handled that way, lots of arrests weren't made when they should have been and some people wound up dead. So yeah, mandatory arrests are an overcompensation in the other direction, but it only happened because police discretion was found to be pretty unreliable in this category of cases. I dunno, maybe times have changed and cops would take DV more seriously now, but these laws didn't just happen because the feminist lobby wished them into existence.
6.27.2007 10:25pm
Kelvin McCabe:
Yes, I do have a rather broad idea of the 4th, 5th, 6th,etc... amendments. I never said the holding in Miranda applied to a phone conversation, what i am saying is that the phone conversation is being used as a substitute for a traditional custodial interrogation wherein Miranda, and the admonishments accompanying it regarding the accused's rights, would be needed. The point being, if a statute passed allowing this method of interrogation, you can get to the same result i,e.: confession/admission of guilt through the phone or through custodial interrogation. And if you can get to the same result without Miranda, wouldnt that be better from your perspective as an officer? Wouldnt that be better for the prosecution? (one less possible method of suppression available via miranda violation?)

Ive said it before, and i'll say it again, its not my fault that a significant number of the bill of rights are specifically directed to the criminal defendant and are designed to protect him/her. Taken in total, the rights signify to me and anyone who reads them that it was of fundamental importance that the 'liberty' of the people NOT be subject to the whim of government expediency. This phone interrogation stuff is just that. An expediency. Change the facts and pass a statute that says the cops may call but shall inform the target that what he says may be used as evidence against him, (like the SEC example), and the situation is altogether different.

The right against self-incrimination case law, as far as i am aware, stands for the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system (and 6th amend right to a fair trial), and the preservation of personal privacy from unwarranted governmental intrusion. As its name indicates, the clause is concerned with the danger to a witness prompted to give testimony leading to the infliction of penalties against himself. See e.g, Murphy v. Waterfront Comm'n, 378 U.S. 52 (1954). An admission is the equivalent of "testimony" (to me) since the officer may testify to it in court over a hearsay objection.

If this is the point of this specific clause in the 5th amendment, to protect the accused from incriminating himself, then whats the problem? Miranda focused on custodial interrogation and the inherent coercion invovled in that setting. But why should the principle be so limited? Are you telling me that a cop calling a suspects home, telling him he has information regarding him and a crime, and then asking pointed questions would not be surpising, startling, scary for the defendant? (i would imagine most suspects would be quite surprised to receive that call) Just because the cop isnt in the room doesnt automatically change the psychological componet of interrogation, which is one of the factors that led to Miranda, albeit in the custodial context. Hell, for most people, ANY contact with officers wherein they are the subject of the policeman's attention makes them nervous, uneasy, etc... which in turn makes them more likely to do stupid things like confess, consent to a search,etc... Im fairly sure cops are aware of this and take appropriate advantage.
6.27.2007 10:38pm
whit:
steve, i totally agree. like everything else in social policy, the pendulum swings too far in both directions.

DV crimes are mandatory arrests, even when the victim does not desire prosecution, etc.

basically, the dv 'philosophy' is that it is better to make a preemptive strike against domestic violence (even if it turns out that the 'victim' completely fabricated the case as happens relatively frequently) than to not arrest and have somebody end up dead. in many cases where the facts are fuzzy, the victim does not desire prosecution, etc. and where it was NOT DV related, it would be a "no case" or maybe a citation, that option is not present if it's DV. it's not just the mandatory arrest thing. how about the fact that somebody's 2nd amendment rights can be voided merely based on a protective order? no right to jury trial, no proof beyond a reasonable doubt. if a domestic partner can convince a judge that they are scared of you, that's about all it takes. and in cases where DV arrests are made, a judge will issue a nocontact order even against the wishes of the victim, prior to the defendant being released. the burden is now on the victim to get the order lifted even though she might never have wanted it in the first place. the judge is "your daddy" after all, as is the state.

i see this happen a lot with indigent/street people. i had a recent example. saw two people hangin out on the sidewalk sitting and drinking a beer. being that open container is a civil infraction, i spoke with them, got their names, ran them for warrants, made them pour their beers out. lo and behold the names returned from my computer check to show the woman was the respondent ina no-contact order. turns out she was arrested for a dv case 6 months ago against him, so the order was automatically issued. he (the petitioner) certainly didn't want the order in place and wasn't in fear of her, and didn't want her arrested, but didn't have the means/wherewithal to have the order lifted, so it remained in effect.

so, i HAD to arrest her. zero discretion. of course he refused to provide a statement, but i still had plenty of probable cause since they were happily sitting next to each other on the curb drinking a beer and enjoying life.

i've also had cases where the petitioner invites partner to house for dinner, and./or sleepover, often for days at a time. doesn't matter. if she calls police, or somebody else does - automatic arrest. even when the petitioner invited the contact.

the law is a blunt instrument, unfortunately.
6.27.2007 10:54pm
Joel B. (mail):
Someone earlier made a very important point about why cops probably don't use this technique more often, because you have a foundational issue. How do you prove the individual on the other end of the line is the suspect. Unless you can voice print identify you're not in great shape. Now, cops can go meet a suspect in person and say do you remember that conversation we had on X date at X time about
X event, and that can get you around the foundational problem. If your evidence is well the person on the other end of the line said he was John Suspect that's probably not good enough, and why have a great confession who may wisen up between the time of the confession and the confirmation and conviently state "I have no recollection of that phone call."

Where does that leave the investigator?
6.27.2007 11:49pm
JPaulG (mail):
I've prosecuted civil insurance fraud cases and this sort of approach works in that model. However, in our jursitiction if it got the situation where the potential fraudster starts to fess up we had to go through with the warnings. The vast majority of the time when people start to 'fess up they end up spilling their guts regardless of the warnings you give them, it's getting them to start confessing that's the hard part.

I think certain types of offences are more amenable to this method than others.Insurance fraud is I think a classic example, where at somewhere between 50 and 75% of the "potential fraud" that is identified ends up being miscommunication or other innocent mistake.

I personally didn't care for the approach too much simply because people are far more willing to lie to you over the phone than they are face to face.
6.27.2007 11:53pm
Ken Arromdee:
why would you possibly make policy to make investigations more difficult AND to make them less likely to lead to the truth (that's what confessions help to do. determine the truth)?

Because people aren't robots, and can easily be led to make incriminating statements even if they haven't done anything wrong, simply by wording questions carefully, asking leading questions, and interpreting colloquial responses literally.

An example was given above of "Hey, buddy, did you know you were speeding?" It's quite likely that an innocent person would answer "no" to this question; his answer could then be inerpreted to mean he was speeding.
6.28.2007 12:12am
whit:
ken, get real. what does your response possibly have to do with OVER THE PHONE interrogations vs. in-person interrogations? your point is just as applicable to in person interrogations vs. over the phone. like i said, im all for tape recording all confessions. i frequently did so when i did detective work. in patrol, that's rarely an option. unfortunately, my jurisdiction requires two party consent to record, so that means in most cases i have to get permission or at least advise i am recording to have it being admitted (and not commit a misdemeanor).

bogus confessions are of course a concern. a good interrogator will draw out details that are only known to the person that actually committed the offense, or at least was present at the scene, etc. and of course a confession, as stated, is nowhere near enough for charging or conviction. it can support other evidence of course.

your example is humorous, but certainly not a confession by any stretch of the imagination. "officer, i think i was doing about 90 mph" would be a confession.
6.28.2007 12:57am
e:
Kelvin McCabe:

the phone conversation is being used as a substitute for a traditional custodial interrogation wherein Miranda, and the admonishments accompanying it regarding the accused's rights, would be needed

Fifth Amendment: ". . . nor shall be compelled in any criminal case to be a witness against himself . . ."
Note that it is not simply self-incrimination, but "compelled." The point of Miranda, no? You could be happy if the law has pushed police to use telephones rather than interrogating suspects incommunicado and in isolation where there is risk of coercion. But you protest and push what is already a prophylactic measure built on some shaky foundation. Or are you saying that the phone call is really substituting the same risks of coercion?

Others have responded to your earlier comment on investigations, but I wonder if you've succumbed to the CSI fallacy of solid physical evidence under most crimes? If the police had less casual contact with civilians, would this increase or decrease the feelings of some groups that the police are the other rather than public servants?
6.28.2007 1:24am
markm (mail):

basically, the dv 'philosophy' is that it is better to make a preemptive strike against domestic violence (even if it turns out that the 'victim' completely fabricated the case as happens relatively frequently) than to not arrest and have somebody end up dead. in many cases where the facts are fuzzy, the victim does not desire prosecution, etc. and where it was NOT DV related, it would be a "no case" or maybe a citation, that option is not present if it's DV.

In other words, the presumption of innocence is reversed.

It's not just the mandatory arrest thing. how about the fact that somebody's 2nd amendment rights can be voided merely based on a protective order? no right to jury trial, no proof beyond a reasonable doubt. if a domestic partner can convince a judge that they are scared of you, that's about all it takes.

Not even that. Here (Michigan) one can get a domestic violence restraining order on hearsay evidence that someone else is afraid of someone. My daughter's ex-husband came to the pre-school their son attended, asking questions about the boy in what the teacher took to be a threatening manner. She asked my daughter to get a restraining order to keep him away from the school. All it required was an affidavit signed by my daughter that a third party was scared of her ex, and a few hours later a judge that had probably never seen any of the parties involved signed the order...
6.28.2007 11:35am
Christopher Cooke (mail):
Sorry for the absence, work intervened. Here is why the SEC gives these "warnings" while other agencies do not:

Congress passed a statute called the Privacy Act in 1974 (or thereabouts) which requires civil enforcement agencies to tell people how the government may use their personal information. I believe that the FBI is exempt from that statute. The SEC, being a cautious agency, added in the 5th amendment stuff, and 18 USC 1001 stuff, since its attorneys had to tell the "suspects" so much information anyway.

As for whether such phone calls should be tape-recorded, I pushed for a procedure in our office to tape record all such calls, but to advise the person that we were doing so and to get their consent. That practice was followed in SF (where I worked) but not in other SEC offices. My reasons for this were it takes the SEC attorney out as a witness, and creates an incontrovertible record as to what was said. I made this recommendation after our office lost an insider trading trial and all we had was the investigating attorney and her notes, instead of a tape recording of the crucial phone call.

Other offices didn't like the policy after hearing criticism of the practice from the US Attorneys in their districts, who asked them not to tape record such calls. The reason is that many people initially lie to investigators, but then are persuaded to tell the truth and fink on others. If you have a nice clean tape recording of the initial lie, the defense attorney for the implicated witness can use that to impeach the cooperator when he or she testifies at the criminal trial, but it is much less effective to use notes of a phone call made by someone else as an impeachment device.

Personally, I don't think we should require the police or FBI to give the SEC type warnings, as we want to maintain flexibility for law enforcement and only prevent them from doing practices that infringe on civil liberties in many circumstances, as opposed to only a few. I didn't mind it that the SEC made us give these warnings, though, and didn't find them to be an obstacle.
6.28.2007 11:48am
Kelvin McCabe:
E: compelled isnt defined in the amendment, and the Courts have come up with various ways of finding when someone has been forced to testify by compulsion. Like the lengthy disucssion in Miranda. But Miranda isnt the only 5th amendment Sup Ct case!

What if the Cops devised some elaborate false scheme to get the defendant to confess, but one in which the defendant was not in custody? And lets say the only reason they did it that way was too get around Miranda, and lets say the cops knew the defendant was particularly sensitive about the subject of the scheme and they knew it was very likely their trickery would work. The cops take advantage of the suspect, pull off the scheme, get the confession. Why the hell would something like that NOT BE subject to the 5th amendment? Miranda is not the end all be all of the 5th amendment. There were cases that came before and after. Miranda dealt with the custodial interrogation setting and hte inherent coercion therein, fine. There are other ways and methods police can and have used to get confessions wherein Miranda's holding would not apply (for lack of custody) but the 5th amendment would still be relevant. Thats my point. And its a simple one.

(to give an example of cops carrying out crazy scheme's from this site, Prof Kerr gave the example of the recent case where the police officers rammed a drug dealer's car, or the police car used was stolen, or it ran off or something hit and run - i dont remember all details just remembered it was an elaborate scheme carried out sans warrant to bust a drug dealer.
6.28.2007 12:15pm
Miako (mail):
Phone versus in Person: It all depends on your technique.

I may not know policemen, but I do know people who rely on their charisma to manipulate others (oftentimes to mutual benefit).

If your physical presence (and your ability to read physical cues of the other person) will help, you do it in person. IMHO, most people are better suited to in person contact, as that is a far more rich source of information.
6.28.2007 12:46pm
Monkberrymoon (mail):
There's still the voluntariness requirement. With or without Miranda, if the officer uses trickery that results in the giving of an involuntary statement, that's a Fifth Amendment problem. If the trickery induces the giving of a voluntary statement, that's no problem.

The issue, of course, is where does trickery cross the line into coercion. And I'd say it's less likely that the line would be crossed in a noncustodial situation.
6.28.2007 1:00pm
Kelvin McCabe:
I would agree with that monkberrymoon. Where does one draw the line is the question. From my experience with the history of criminal procedure and case law, whenever a new exception arises, it leads to variants of the exception which in turn are allowed. Example: vehicle exception. Originally justified because of the car's inherent mobility, eventually expanded to a situation wherein a routine traffic stop, with nothing whatsoever indicating anything else illegal, can now be accompanied by a full blown k-9 search. It took awhile to get there, but once the flood gate opened, it could not be stopped. This pattern repeats itself over and over. Same thing would happen in my opinion with these phone calls, unless the police were required to admonish the suspect first (which under the hypo Prof Kerr proposed would not be necessary). Give the G an inch, and they take the proverbial mile over and over. This view may be cynical, but i think its accurate, at least in the criminal procedure context.
6.28.2007 3:54pm
Daryl Herbert (www):
Would this interfere with the ability of police officers to question non-suspects? If the police are unsure of what went on, they might have one suspect in mind but eventually arrest another.

Would a suspect be able to claim that police violated his Constitutional rights because they called him on the phone to ask him about his brother (whom the police originally suspected)? What if he framed his brother?

So long as the officer always opened up with "I'm Officer X, and I'm investigating a crime," that should be good enough. I like the idea that it should have to be recorded to have any weight in court. Past that, a new law seems unnecessary.
7.1.2007 8:36am