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Mourning Miranda:
Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework. Although Weisselberg has long been a noted defender of Miranda, he finds himself concluding that the Miranda experiment has been a failure:
. . . Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation.
I hope to post some substantive reactions to Weisselberg's provocative and important new paper when I get the chance. In the meantime, if you're interested in criminal procedure generally or Miranda specifically, definitely check this one out.
ejo:
"I no longer believe that a system of standardized warnings can generally empower suspects to assert their rights...." It's too long a paper to read quickly but this statement, off the bat, seems to imply that the purpose of the criminal justice system is not to inform suspects of the rights but to "empower" them to assert them and not make a statement. Was that ever the purpose of Miranda-I can't imagine any Justice ever said I want these warnings so suspected criminals are empowered to walk on their offenses by not talking. It continues with a premise that police, instead of assisting suspected criminals into not talking, actually actively work to get them to talk despite the warnings-another no brainer.

actual voluntariness may always be raised by a defendant, although seldom successfully-it was not foreclosed by Miranda.
2.22.2008 4:27pm
Kent Scheidegger (mail) (www):
When Paul Cassell, yours truly, and several others tried to get rid of this "failure" a few years back, Weisselberg was on the other side. I'm curious how this compares with his brief, but unfortunately don't have a copy. Do you have it, Paul?
2.22.2008 5:01pm
Mike& (mail):
The paper is interesting, indeed. Thanks for publicizing it.

In the end, the author suggests there could be improvements. But would courts enforce those improvements?

Heck, just look at Miranda itself. The Court issued the opinion; soon thereafter it was gutted by bizarre definitions of "custody." If you're placed in the back of a locked police car, e.g., you are not in custody. What? No, there is a mere detention; and a person being "detained" need not be read his or her Miranda warnings.

And, of course, making a "voluntariness" challenge to statements is a sure-fire loss. A person who is drunk or high is deemed incapable of driving by law; and incapable of consenting to sex; or incapable of signing a contract (where the other party knows of the intoxication). Yet a person high on meth or drunk out of his mind who gives a statement to police has done so "voluntarily." How?

Then, of course, we have a recent Ninth Circuit decision where several conservative judges (who, unlike Justice Stevens, discover rather than make law) would have held that a person who, in response to police questioning, says "I plead the Fifth," did not invoke his right to silence. Why not? Because "I plead the Fifth" is ambiguous.

In no other area of the law do courts so bizarrely define terms.

Criminal defense is the most dismal science. In the end, the criminal defendant is screwed. If Miranda wasn't doing the screwing, some other test would be. Courts would see to that.

Probably the only solution to the problem of false and involuntary confessions is tape recording. But the Department of Justice is against that because (their words): "Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants." Interesting.

The band will play on, whether the tune is Miranda or some other test.
2.22.2008 5:14pm
Kent Scheidegger (mail) (www):
Mike, are you making a motion to enact a videorecording requirement as a replacement for Miranda?

Second.
2.22.2008 5:37pm
Vermando (mail) (www):
Third.

This was, as I understand it, one of Senator Obama's causes in the Illinois legislature (at least it's one of the things his supporters give him credit for under his 'list of legislative accomplishments' they've been circulating). Seem imminently sensible to me and if true to speak well of the man's judgment, though I'm open to hearing opponent's arguments to Mike's &Mr. Scheidegger's motion...
2.22.2008 5:49pm
David M. Nieporent (www):
seems to imply that the purpose of the criminal justice system is not to inform suspects of the rights but to "empower" them to assert them and not make a statement. Was that ever the purpose of Miranda-I can't imagine any Justice ever said I want these warnings so suspected criminals are empowered to walk on their offenses by not talking. It continues with a premise that police, instead of assisting suspected criminals into not talking, actually actively work to get them to talk despite the warnings-another no brainer.
Scalia ranted (properly so) in Minnick about this attitude, about the notion that there's something wrong with suspects confessing:
It seems obvious to me that, even in Edwards itself but surely in today's decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice.

Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a "mistake."
2.22.2008 5:51pm
whit:
Heck, just look at Miranda itself. The Court issued the opinion; soon thereafter it was gutted by bizarre definitions of "custody." If you're placed in the back of a locked police car, e.g., you are not in custody."

a one sided analysis (what i would expect from the defense! ) :)

SOME courts went completely the other way - some have a "focus" standard, where custody isn't even an ISSUE!!!. as long as you are the focus of the investigation, you need miranda. even over the phone!. other courts have said that once the police develop PC, then they have to mirandize, and other such bilge. so, it works both ways. liberal courts vs. conservative courts. clearly, the court never intended that a suspect being interrogated via PHONE requires miranda, yet some courts go that far.

"And, of course, making a "voluntariness" challenge to statements is a sure-fire loss. A person who is drunk or high is deemed incapable of driving by law". they are not deemed INCAPABLE OF DRIVING. they are deemed incapable of driving safely and legally. similarly, in some states you can't drive while talking on a cell phone. that's also deemed unsafe. you can still waive miranda though. furthermore, you don't even need to be DRUNK, you just need to have a .08 *or* be impaired by liquor neither of which implies drunkenness, and neither of which would make you incapable of voluntary and knowing intelligent waiver.

"Criminal defense is the most dismal science. In the end, the criminal defendant is screwed. If Miranda wasn't doing the screwing, some other test would be. Courts would see to that"

again, a very one sided/biased analysis. in many ways, it's the prosecution, not the defense. and of course the cops, who are subject to miranda are NEITHER. they are the evidence gatherers whose job is to gather evidence whether inculpatory or excupatory.
2.22.2008 5:51pm
c.gray (mail):
My dad, who practiced criminal defense law for close to 30 years, used to joke that someday the courts would simply define the beginning of "custody" as the moment a policeman remembered to give you your Miranda warning.

Not that it would make much difference anyway. Almost nobody pays attention to the Miranda warning anyway. It might as well be given is Latin or Klingon for all the practical use it has.
2.22.2008 5:54pm
Elliot Reed (mail):
Indeed, a videorecording requirement would probably do a lot to solve these problems. If an interrogation can't stand up to scrutiny by a jury who can see what actually happened, the techniques used to induce confession probably aren't doing a good job of distinguishing between people who are actually guilty and innocent people who are scared into confessing.

False positives are a serious problem here: every innocent person who's tricked, manipulated, or intimidated into giving a false confession in the hope of obtaining lenient treatment, there's a criminal still out on the streets.
2.22.2008 5:56pm
whit:
"My dad, who practiced criminal defense law for close to 30 years, used to joke that someday the courts would simply define the beginning of "custody" as the moment a policeman remembered to give you your Miranda warning. "

i can't stress enough how much this varies from state to state. in some states, all it takes (practically) is police presence to require miranda. seriously. miranda (rightly or wrongly) was invented (and i use that term purposefully) to require warnings when the person was UNDER ARREST. but court after court has held all sorts of situations are functional equivalents of custodial arrest. some states are so liberal that even if you TELL THE PERSON they are not under arrest, they STILL need miranda if they are "the focus." i get very tired of this one sided defense analysis that all the courts have done is erode miranda. that is very far from the case. some have gone way farther than miranda ever intended.

and of course the constitution nowhere says cops (or anybody else) is required to remind people of their rights, so miranda was basically a fabricated procedure invented because judges didn't LIKE the way cops were interrogating people.
2.22.2008 6:00pm
whit:
"Indeed, a videorecording requirement would probably do a lot to solve these problems."

that's nice, but cops don't carry videotapes on the street, and the VAST majority of interrogations are handled by street cops in the field. personally, i'd prefer to (at least) audiotape all interrogations, if not videotape them but my state's liberal legislature won't even allow me to audiotape somebody without first getting their consent. here's a hint. people don't LIKE to (generally) talk on tape, let alone videotape.

" If an interrogation can't stand up to scrutiny by a jury who can see what actually happened, the techniques used to induce confession probably aren't doing a good job of distinguishing between people who are actually guilty and innocent people who are scared into confessing.

False positives are a serious problem here: every innocent person who's tricked, manipulated, or intimidated into giving a false confession in the hope of obtaining lenient treatment, there's a criminal still out on the streets."

any good interrogator knows that false confessions, while VERY rare are a problem. and any good investigation seeks to minimize that possibility. on an arson case, for instance, the confession as to HOW the fire was started (which would not be known to somebody who wasn't there when it was started) etc. is key.

but miranda isn't going to prevent false confessions, nor is videotaping. good interrogation and investigative technique will help a lot though.
2.22.2008 6:05pm
Elliot Reed (mail):
and of course the constitution nowhere says cops (or anybody else) is required to remind people of their rights, so miranda was basically a fabricated procedure invented because judges didn't LIKE the way cops were interrogating people.
And nowhere does the Constitution say that the President is immune to most civil lawsuits, or that "separate but equal" is inherently unequal, or that restrictions on speech via copyright law are permissible notwithstanding the First Amendment, or that there is a "dormant commerce clause" that restricts state regulation of interstate commerce, or that judges have the power to strike down statutes for unconstitutionality, or that depriving a property of substantially all of its economic value via regulation constitutes a taking, or that certain nonprofit organizations have a right to discriminate against homosexuals . . .
2.22.2008 6:12pm
Kent Scheidegger (mail) (www):
"that's nice, but cops don't carry videotapes on the street"

Many police cars are equipped with video recorders these days. Remember that chase recording attached to the Supreme Court's opinion in Scott v. Harris last term? That is a good example (although not a confession) of a case where the recording was beneficial to law enforcement. The recording brought the reality of the chase home to the justices in a way a verbal description never could.

Which is more persuasive to a jury? An officer on the stand reciting how the defendant confessed or the defendant on video confessing?
2.22.2008 6:16pm
whit:
elliot reed, and your point is what?

the 5th amendment clearly states various rights. as do other amendments. and nowhere does the constitution establish criminal procedure that cops need to remind people of these rights before asking them questions if they are in custody.

nothing prevents any state legislature from requiring such warnings (or any other ones) by their cops.

but inventing an elaborate procedure because you don't like the way cops interrogate people is simply creating law, not judicial review.

miranda has become such a part of our culture (i've had arrestees say they were going to sue me because i didn't read them their rights. heck, they expect it. so, i'll give them that benefit even if i have no obligation to advise a warrant arrest of miranda) that few question it. heck, i'm probably one of the few cops who has read the actual decision. it's simply an invention. it may have been well intentioned, but that's not an excuse for judges to invent stuff that isn't in the constitution
2.22.2008 6:20pm
whit:
M"any police cars are equipped with video recorders these days. Remember that chase recording attached to the Supreme Court's opinion in Scott v. Harris last term? That is a good example (although not a confession) of a case where the recording was beneficial to law enforcement. The recording brought the reality of the chase home to the justices in a way a verbal description never could. "

i am going to repeat. i LIKE recordings, because they help back up the good guys, and prevent false claims from bad guys. and like i said, i CAN'T legally record anybody (audibly) without gaining their consent due to my liberal legislature.

but...

the majority of my interrogations have nothing to do with traffic stops or even occur near a police car.

unless im going to carry a video camera strapped to my shoulder, it's not going to be there for most of my interrogations - rape, DV, child molestation, assault, etc.

"Which is more persuasive to a jury? An officer on the stand reciting how the defendant confessed or the defendant on video confessing?"

you have no argument from me there. i wasn't attacking the benefits of doing it. i was attacking the practicality of it from a patrol (and often detective) standpoint.

in an interrogation room, it's easy. the VAST majority of interrogations (subject to miranda or not) don't occur there.
2.22.2008 6:25pm
Elliot Reed (mail):
whit, my point is that the Constitution is a short, extremely vague and ambiguous document, which actually says virtually none of the things that have ever been part of American Constitutional law at any point of history. I suspect that when you say "the Constitution doesn't say" you're really referring to your preferred interpretation of the Constitution, and not to the document itself.
2.22.2008 6:38pm
whit:
no, i'm referring to what the constitution says. inventing elaborate ritual (the reading of miranda) is clearly not required by the constitution

otoh, forcing criminal suspects to talk clearly is prohibited by the constitution.

i care about what the constitution says, NOT what i want it to say.

im a libertarian, generally. i would like the constitution to say that nobody should be imprisoned for drug use. i am not going to pretend doing drugs is a constitutional right.

miranda was invented because judges (rightly so) didn't like some abuses of interrogation procedure being done by some cops in some agencies. but that doesn't justify inventing miranda rights.

it's obviously settled law, and frankly, i'd miss the ritual. but i'm not gonna pretend it wasn't a bit of judicial activism.
2.22.2008 6:45pm
David Chesler (mail) (www):
It might as well be given is Latin or Klingon for all the practical use it has.

I've never been arrested, but some years ago a private security force pretended to arrest me, and physically and against my will removed me from the lobby of my parents' apartment building to their office, where they chained me to a wall. In order to make it seem more official they read the words, just like on the TV cop shows. (At most it was trespassing, but as I'd offered to leave when they told me I was trespassing [instead of even asserting any right to be there] and they said "Now it's too late" and that totally blew it for them. I never got an apology, but I got a settlement. In any case I don't think there was anything I could have said that would have been any use against me.)

When the reader got to the part about "Do you understand these rights as I've explained them to you?" I answered truthfully "No." He didn't accept that and asked me "How could you not understand them?" and I said "I'm not an attorney. I don't understand all the ramifications, but if I understood you I think I'm entitled to an attorney: may I please have one to explain this to me?" and he said "You don't have to understand the remifications" and I said "Well in that case, based on your legal advice, I guess I do."

He later explained to me that the right to remain "silent" did not include the right to remain silent and if I did not speak my name he would keep me in custody for 72 hours. I still don't understand that one, what sort of right it is if exercising it gets me sent to jail for three days.

But I digress. He might as well have intoned "Dearly beloved, we are gathered here" or "I led the pigeons to the flag" -- all he was trying to convey was "This is serious".
2.22.2008 6:48pm
glangston (mail):
Couldn't we educate children in school to understand this right. Perhaps a field trip to the police station with an ACLU lawyer as their guide? Are people really that diligent about avoiding any knowledge or understanding of their constitutional rights?

Anyway, I think education could go a long way in clarifying this issue.
2.22.2008 6:49pm
whit:
"Couldn't we educate children in school to understand this right. Perhaps a field trip to the police station with an ACLU lawyer as their guide?"

you are kidding me right? why should an ACLU lawyer be the guide?

" Are people really that diligent about avoiding any knowledge or understanding of their constitutional rights?

Anyway, I think education could go a long way in clarifying this issue."

there's not anybody with a pulse, above the age of 10 who doesn't know their miranda rights inside and out.

seriously

cops don't ADVISE people of miranda rights, because people already know their miranda rights. frankly, cops remind them of them.
2.22.2008 6:58pm
Bob from Ohio (mail):
Weisselberg seems upset that despite Miranda, the police do effective interrogations. I guess effective non-abusive police work violates the Constitution.

I really don't see how someone whose heart bleeds so much can survive the loss of blood.
2.22.2008 7:02pm
Fub:
Kent Scheidegger wrote at 2.22.2008 6:16pm:
Which is more persuasive to a jury? An officer on the stand reciting how the defendant confessed or the defendant on video confessing?
Officer testimony, obviously. Otherwise, why would an officer shut off the video camera?

Link courtesy of Radley Balko.
2.22.2008 7:11pm
DangerMouse:
2.22.2008 7:14pm
glangston (mail):
you are kidding me right?



Yes.
2.22.2008 7:19pm
hattio1:
whit,
You may say the defense attorneys present a one-sided view of Miranda as currently applied, but so do you. As to the focus test, it's always been a minority, and I think it's down to one or two states now. As to finding a person in custody even though the officer says there not...that's simple. If the rule didn't look at whether a person was actually free to leave, the officers would merely not "arrest" the person but keep them in custody while making it clear that the person wasn't leaving custody unless there was a damn good explanation.

How do I know this? Simply put, every officer in my jurisdiction has a recorder on their badge and is supposed to use it every time they have contact with a witness or a suspect. And they are actually pretty good about using it. (Though the reason I believe cops routinely lie is there was a rash of "recorder malfunctions" and admissions during the time the recorder malfunctioned. Once the local defense attorneys started compiling all the times a particular officer's recorder malfunctioned, they magically started working well again. But that's a subject for another day).

However, the cops will take someone into custody. Tell them that they are not free to leave until they tell the officer what happened. Then try to claim the person wasn't in custody. Uh, thank you for playing, but if I'm not free to leave unless I talk to you, you are forcing me to choose between my right to remain silent and my right to be free. Not constitutional.

This leads me to my last point. You say that the purpose of Miranda was to require warnings when someone was arrested. But that's incorrect. The purpose of Miranda was to prevent coercion. And coercion is easier to apply to persons who arent' free to leave. Which is why the "reasonable person would feel free to leave" test is perfect.
2.22.2008 7:23pm
whit:
glangston, nice one. i reread your post and now i see the dry wit (no pun intended)
2.22.2008 7:25pm
hattio1:
BTW,
I should add that I support whit's idea of audio and video recording whenever possible.
2.22.2008 7:55pm
whit:
"You may say the defense attorneys present a one-sided view of Miranda as currently applied, but so do you. "

no, i don't. i accept that SOME courts have extended miranda WAY beyond the decision's meanings, whereas others have eroded it. that's called APPLYING BOTH SIDES.

the others here, ONLY mentioned the eroding courts, never the extending courts. grok the difference?

"If the rule didn't look at whether a person was actually free to leave, the officers would merely not "arrest" the person but keep them in custody while making it clear that the person wasn't leaving custody unless there was a damn good explanation. "

tue rule is WOULD a reasonable person under the circumstances known to the suspect believe that his freedom was being detained consistent with that of a formal arrest.

before you criticize miranda, understand it. the issue is NOT detention, and it is not whether he is ACTUALLY free to leave. it is whether the situation as presented to him, would be interpreted by a reasonable person that way.

"However, the cops will take someone into custody. Tell them that they are not free to leave until they tell the officer what happened. Then try to claim the person wasn't in custody. Uh, thank you for playing, but if I'm not free to leave unless I talk to you, you are forcing me to choose between my right to remain silent and my right to be free. Not constitutional. "

i'm well aware of that, and this is relevant how? note that in some jurisdictions, during a terry (not a custodial arrest, emrely a terry), the person IS required to give name, dob, etc. and ALL terrys are detentions, just not formal arrests, and thus should not (unless you have liberal judges) require miranda.

"This leads me to my last point. You say that the purpose of Miranda was to require warnings when someone was arrested."

that is the requirements of miranda. when they are arrested and ALSO being questioned.

" But that's incorrect. The purpose of Miranda was to prevent coercion. And coercion is easier to apply to persons who arent' free to leave. Which is why the "reasonable person would feel free to leave" test is perfect."

i am well aware of that, except the rational was that questioning WHILE UNDER FORMAL arrest was so inherently coercive that it could not be said to be voluntary unless the person was first advised of those rights. again, well aware of that.

but the free ot leave test is NOT perfect because it encompasses all sorts of detentions that are NOT formal/custodial arrests, (such as terry/traffic stops) that do not rise to the level of formal arrest, but ARE detentions.

the courts rightly distinguish between a detention and an arrest.

if your rule was taken, then cops would be required to mirandize every driver they stopped BEFORE asking him how much he had to drink. clearly, that's a detention, clearly it's a question that could elicit an incriminating response (interrogation), but it is clearly NOT an arrest, and thus miranda does not apply.

the court's reasoning was about the inherent coercive effect of the arrest. it did not extend to all detentions.

from http://www.landmarkcases.org/miranda/primer.html

"A person is in custody only if he or she is subjected to either formal arrest or its functional equivalent.

Formal arrest -- occurs when a person is explicitly told he or she is being placed under arrest.

Functional equivalent -- occurs when a suspect's freedom of action is significantly curtailed to a degree associated with a formal arrest "

many defense attorneys (as is their job) try to turn every detention into a formal arrest. others try asking the officer "did you think he was free to leave" which is 100% irrelevant in many jurisdictions, including my own, but which is constantly asked because they WANT miranda to mean - you can't question the guy w/o miranda if he's not free to leave (not true) or he believes he's not free to leave.

if you think miranda should be extended to ALL detentions, that's fine. thankfully, except in the most liberal of jurisdictions, that's not the case.

the issue with miranda v. arizona is what the federal constitution requires (which imo does not even require miranda in arrest situations, but that is anotehr story)

legislatures could be free to extend it as far as they wanted, or states (if the state constitution required it).

for example, in my state, i am required to tell ALL arrestees (regardless of whether i am questioning them) that they have the right to free counsel. not a requirement under miranda v. arizona. but under my state.
2.22.2008 8:13pm
LTEC (mail) (www):
This what Weisselberg wants:
But perhaps the most positive outcome [of abandoning Miranda] may be the resurrection of the voluntariness doctrine. If Miranda's procedures do not adequately advise suspects of their rights and provide opportunities to assert them, law enforcement would presumably lose Miranda as a "safe harbor." Courts would be required to assess the voluntariness of statements in light of all of the circumstances, including suspects' age, education, the existence of any disabilities or disorders, the application of sophisticated interrogation tactics, express and implied promises, and other factors, shorn of unwarranted assumption that all suspects somehow understand form warnings and are empowered thereby. With greater understanding of police practices and the dynamics of
interrogation, I would hope for meaningful development of the voluntariness doctrine (though we would want to monitor carefully this development and police training on interrogations and voluntariness). We would lose Miranda's "bright lines" and there would be many more individualized assessments of the voluntariness of a statement. But surely this is the right outcome.
I'm not so sure this is the right outcome.
2.22.2008 8:32pm
justwonderinby:
"cops don't ADVISE people of miranda rights, because people already know their miranda rights. frankly, cops remind them of them."

Indeed. But the question begs: Why doesn't the Sup Ct require the police to remind suspects of all of their constitutional rights? Hell, why not have the government advise me of all of my rights whenever I interact with them?

Because, damn it, the people have some responsibilities too. If you don't seriously know that you have a right not to talk to the police when questioned, that's your damn fault. Furthermore, does anyone really believe that miranda has actually changed anything? Suspects talk to the police all the time after they've been advised of their rights b/c it is inherent for people to speak when accused of something.

I agree with Kent S. that videotaping would be a could idea. And as a former policeman, I can attest that most interrogations do not occur in the streets. Why? Because in my jurisdiction, it wasn't interrogation until someone was arrested... and by that time, all that was left for the patrolman was a drive to central booking. From their, the detectives take over and then miranda is given.
2.22.2008 8:51pm
whit:
"But perhaps the most positive outcome [of abandoning Miranda] may be the resurrection of the voluntariness doctrine"

which would mean more billable hours!!! SWEEEEEEET!

bright lines are generally a good thing. reading miranda doesn't automatically mean there was voluntariness. obviously. if you advise a guy of miranda, then beat the hell out of him to get a confession, clearly it's not voluntary.

but this ridiculous list of facts to consider is beyond absurd. maybe we should have the cops administer an MMPI, Stanford-binet, Rorshach and SAT tests before questioning a person. all sorts of things cause people to confess: honor, psychological pressure, morals, deception, pride, remorse, etc.
2.22.2008 8:58pm
whit:
"I agree with Kent S. that videotaping would be a could idea. And as a former policeman, I can attest that most interrogations do not occur in the streets."

and as a current police officer, i can disagree, at least in my agency (and former agency).

" Why? Because in my jurisdiction, it wasn't interrogation until someone was arrested... and by that time, all that was left for the patrolman was a drive to central booking."

we are expected (i've been patrol and detective) to generally do our own interrogations. i've interrogated for about every crime under the sun. the only exception is murder (we are supposed to generally leave that to the detective) .

" From their, the detectives take over and then miranda is given"

well, first of all, i'd advise of miranda immediately upon arrest, because then if the guy starts spouting even during the drive, you can question , etc.

but i can say from 20 yrs of policework (as both detective, patrol, and undercover), that the significant majority of interrogations take place in the field or at the station, and by patrol officers - DV, Assaults (felony and misdemeanor), burglary, arson, rape, etc. etc. etc.

maybe we just have lazy detectives, plus they generally only work dayshift (except for narcs) and most good arrests happen at night. they are not going to call out detectives for most crimes. patrol does it.

i have heard that in some dept's it's routine for detectives to do the bulk of interrogations, but that is not the case anywhere i've worked.

the nice thing about detectives was i had WAY more time to interrogate. detectives can spend hours on an interrogation, and interrogate the same suspect multiple times. simply not going to happen in patrol.

but it's not uncommon for a patrol officer to conduct one or more interrogations a shift. simply doesn't happen for detectives (around here at least).
2.22.2008 9:06pm
justwonderinby:
whit: Fair enough. I suspect that the rules are different in different states. As a patrolman, once I had PC and put the bracelets on, it was the ride downtown, paperwork, and then back on the streets. If the suspect made a statement on the ride, it was admissible, because he wasn't being interrogated. It was only when the detectives started asking questions that miranda came into play.

But for all of this, I never thought it mattered much. Suspects knew to keep their mouth shut and in the cases where they didn't, nothing I could tell them would shut them up. Frankly, I was more interested in getting all of the paperwork done, than anything a suspect had to say. Most of them were highly intoxicated and who wants to listen to that crap anyways?

One more point, all of this punting back to the police the courts do is misplaced in my opinion. The police don't really care about constitutional rights, but not in the cynical way most defense attorneys think I mean. That is, my job was to enforce the law; and when I arrested someone, it was pretty obvious that the guy had done something illegal. It's not the job of the police to be constitutional law experts and to implement "evolving standards of decency constitutional interpretation." Why do we expect the police to inform people of their rights anyways? Why is that their job?

Perhaps, just perhaps, public citizens need to know their rights. After all, when it comes to the miranda rights, it's pretty basic.
2.22.2008 10:18pm
BruceM (mail) (www):
I'd just like to note for the record that this is a great example of how police and prosecutors are able to work around "defendant-friendly" changes in criminal procedure, quite often resulting in a system that gives the state more advantages than it had previously. Despite that, all proposals for defendant-friendly rules and procedures and constitutional interpretations (including Miranda when it was handed down by the SCOTUS) are vehemently objected to by police and prosecutors as a matter of course. It's always the same argument -- if this becomes law, tens of thousands of violent criminals will avoid prison snd remain a threat to your precious children. That's what they said abour Miranda.

If they'd stop and think about it, they'd realize there are ways to work around the problem to either negate it or possibly even give them an advantage. But it's easier not to think and just rabble-rouse against it by invoking scare tactics.
2.22.2008 10:31pm
whit:
"whit: Fair enough. I suspect that the rules are different in different states. As a patrolman, once I had PC and put the bracelets on, it was the ride downtown, paperwork, and then back on the streets. If the suspect made a statement on the ride, it was admissible, because he wasn't being interrogated. It was only when the detectives started asking questions that miranda came into play. "

i'm not denying your experience, but it just amazes me. it is so completely different from mine. the main advantage to detective division was that you got more free time to take training classes (reid, advanced reid, crime scene investigation, etc.) that benefited you in patrol (and detectives).

"One more point, all of this punting back to the police the courts do is misplaced in my opinion. The police don't really care about constitutional rights, but not in the cynical way most defense attorneys think I mean."

i certainly do. why else would i spend my time here! :)

" That is, my job was to enforce the law;"

for me, that's only part of it. my job is first and foremost (as corny as it sounds) to protect people (and property), to enforce the law, but to INVESTIGATE.

i am well aware that "victims" lie, witnesses lie, etc. so, i want to question suspects and victims and witnesses vigorously to get to the truth. that's the whole point of interviews and interrogations. get the truth.

especially with he said/she said DV's etc. i am well aware that i could be arresting somebody who was innocent. if they confess, otoh, it's a solid case and i know (false confessions in DV's are incredibly rare) they did it. if they don't, i give more consideration to the fact they might be innocent.

i'm also interested in psychology. different suspects require different approaches to get a confession because they have different motivations. most cops suck, for example, at getting confessions from rapists, because the cops are unwilling/unable to get past their revulsion/derision, and suspects can smell that. otoh, some empathy and understanding can work frigging wonders.

" and when I arrested someone, it was pretty obvious that the guy had done something illegal. It's not the job of the police to be constitutional law experts and to implement "evolving standards of decency constitutional interpretation." Why do we expect the police to inform people of their rights anyways?"

because of a 5-4 activist supreme court decision :)

i think the more cops know where the constitutional boundaries are, the better capable they are to do their job. i want to determine the truth. cases like duke rape case, etc. only make me more driven to get to what REALLY happened.

interrogations are simply an evidence gathering tool. i don't like arresting anybody based on 1/2 the story.

but i don't think i should have to remind people what their rights are.

and interrogations can help the innocent (or help the guilty in terms of relieving their guilt).

i've had numerous cases where interrogation post miranda has led to dropped charges, or whatever because they explained how and why they weren't guilty.
2.22.2008 10:45pm
whit:
"I'd just like to note for the record that this is a great example of how police and prosecutors are able to work around "defendant-friendly" changes in criminal procedure, quite often resulting in a system that gives the state more advantages than it had previously. Despite that, all proposals for defendant-friendly rules and procedures and constitutional interpretations (including Miranda when it was handed down by the SCOTUS) are vehemently objected to by police and prosecutors as a matter of course. It's always the same argument -- if this becomes law, tens of thousands of violent criminals will avoid prison snd remain a threat to your precious children. That's what they said abour Miranda. "

that was also among the main arguments in the dissent in miranda v. arizona. it turned out not to be true, generally speaking. but most cops, prosecutors, and judges are not experts in psychology. nor, frankly, are most psychologists :)

i think it highly reasonable to assume (pre miranda) that the miranda warnings would result in far less confessions. nobody really understood the psychology of post-miranda confessions, because obviously, there had never been such a thing.

i know that as a detective, i preferred quite frequently to do miranda-less non-custodial interrogations, though, if possible.

again, it depends largely on the psychology of the offender. some are more likely to confess in a non-custodial environment (with or without miranda). but it's a given that fewer will invoke the right to counsel pre-miranda, and that's a show-stopper.
2.22.2008 10:52pm
Oren:
I dunno Whit, you are in the 9CA and they almost let "I plead the 5th" be an ambiguous phrase.
2.22.2008 10:55pm
Oren:
JWB, I think y
2.22.2008 11:00pm
Oren:
^^ Sorry, finger slipped

JWB, I think you take a fairly narrow view when you say 'enforcing the law'. To me, anyway, that would include enforcing the Constitutional guarantees as well as ordinary criminal law.
2.22.2008 11:03pm
justwonderinby:
Oren:

I don't know. Every call for service that I went on that even remotely may have resulted in an arrest was for a crime. I was never expected to understand and implement the 9th Amendment for instance.

But more to the point: If SCOTUS judges and ivy league con law professors disagree widely on what the constitution means, then how the hell are the police suppose to "enforce" constitutional law?

Everyone loves to pile on the police. I'm sure there are many good cases where this is legit. But, frankly, we expect too much from our police. The law, especially con law, is invariably complex, especially once we get away from a pure textual analysis. If one subscribes to the "living document" mantra, then what constitutional law is, at any moment, is at the least, not what is was not too long ago.

To put it more cynically, perhaps con law is so obtuse because it is considered the highest brow of legal thinking among lawyers and law professors. Intellectual thinking has a way of removing all practically from the object studied. To be even more blunt: Perhaps con law only seems entirely complex because the legal profession (which I'm now a part of) makes it artificially so. This seems so to me when we're taking about the right to counsel, remain silent, etc. To me, the constitution is clear, but its a right many suspects don't invoke not so much because they are uninformed, rather, human nature compels people to speak when asked questions. Perhaps, that's why the framers put those rights in there to begin with. But as good men as they were, they had no power to chance the human condition.
2.22.2008 11:23pm
whit:
"But more to the point: If SCOTUS judges and ivy league con law professors disagree widely on what the constitution means, then how the hell are the police suppose to "enforce" constitutional law?"

i find a pretty fair percentage of callers want us to "enforce" the law against those that are exercising their constitutional rights, and/our exercise our law enforcement prowess in cases that are obviously civil. or some peeps in a wealthy neighborhood call 911 to report a "suspicious male" that is in fact just a black guy who has walked past their house twice. or they want to call to report somebody shooting in their back yard, or people who want to report a "hate crime" because somebody used a racial or gender slur or... you get the point.

heck, in my jurisdiction, there is no law against fighting in public. seriously. so, when people call to complain that a bunch of juveniles are "hanging out getting ready to fight" and in fact DO start fighting, i can't really DO anything, cause i know the constitution (freedom of assembly) and the law (that there is no law against mutual combat fighting). but i can sure as heck respond to the area with some siren toots, and that clears them out :)

"Perhaps, that's why the framers put those rights in there to begin with."

i think they, as i do, view the idea of police COMPELLING people to testify against themselves is just odious as hell. but they would be more than cool with people digging their own holes, testimonially. defense attorneys seem to, otoh, view it as prima facie evidence that their client's rights were violated BECAUSE they confessed. because clearly, nobody would confess unless they were coerced. you are right. people WANT to talk. others can be tricked into it, etc. and that's all fine. the framers did NOT think it was bad that people confess. they just didn't want it forced upon people.

cops also use questioning as a veracity/cooperation technique. in many cases, guys who are honest, even if self-incriminatory get a BREAK. the "i didn't drink anything tonight officer" guy who is slurring his speech and is clearly drunk - not so much.
2.22.2008 11:40pm
Steve in CA (mail):

if your rule was taken, then cops would be required to mirandize every driver they stopped BEFORE asking him how much he had to drink. clearly, that's a detention, clearly it's a question that could elicit an incriminating response (interrogation), but it is clearly NOT an arrest, and thus miranda does not apply.


I really don't understand why a DUI stop doesn't require mirandizing. It's one of the fuzziest types of detentions out there. If I've had two drinks, and I have a measurable BAC but one that's below the limit, and the cop asks, "have you had anything to drink?" -- do I say, "I'd rather not say"? Can I say that? Am I under arrest? If I was "reminded" of my right to remain silent, I'd certainly exercise it. Of course, I doubt I have a right to remain silent in this case. Still, if I admit to having had a beer with dinner, the cop is going to take the opportunity to drag me out of car and sodomize me, metaphorically speaking.
2.22.2008 11:49pm
whit:
"I really don't understand why a DUI stop doesn't require mirandizing."

because most jurisdictions follow miranda, which limits miranda requirements to custodial ARREST.

read the decisions, etc. i posted a link. a detention is not = formal arrest, custodial arrest, or equivalent thereof.

it is DEFINITELY a detention . all traffic stops are.

" It's one of the fuzziest types of detentions out there. If I've had two drinks, and I have a measurable BAC but one that's below the limit, and the cop asks, "have you had anything to drink?" -- do I say, "I'd rather not say"?"

you CAN. i've had dozens of people say that.

" Can I say that?"

yes

" Am I under arrest?"

not at the point of the traffic stop. it's a detention. it can be either a detention (initially ) for a civil infraction (like speeding or running a stop light. or for reasonable suspicion of DUI (depending on the circ's)./

if it starts out for civil infraction, it may morph into a terry stop once the officer smells the odor, etc. either way, it's adetention. but NOT a formal arrest.

" If I was "reminded" of my right to remain silent, I'd certainly exercise it."

groovy. but it's not required pre-arrest.

" Of course, I doubt I have a right to remain silent in this case."

of course you do. you are required (in my state) to produce license, registration, and insurance. if you don't have them, you are required to tell me your name, etc. but you are not compelled to answer any questions, or otherwise speak. and i have had a few DUI stops that have done that. no problem.

" Still, if I admit to having had a beer with dinner, the cop is going to take the opportunity to drag me out of car and sodomize me, metaphorically speaking."

utter rubbish. i've had dozens of stops (i've made hundreds of DUI arrests) where the person admitted drinking and did not get arrested.

if i have reasonable suspicion of DUI, i am going to ask you to perform VOLUNTARY field sobriety tests (note in my state, we must advise they are voluntary). if you do or don't admit to drinking, i am going to make the determination as to whether i have RS to ask you to take the FST's.

if you are innocent, the best thing you can do is take the FST's and the portable breath test (if offered. i don't carry one, but some do).

if you are guilty, and you don't want to be open about your crime, i would recommend not taking the FST's, since they are almost certainly going to incriminate you, of course. otoh, if you want to man up to your crime, do the FST's etc.

cops are not interested in arresting people who are a .02. nor, have i ever done so. and if you had A drink with dinner, that's about the highest you are going to register, maybe a .03 to .04 if it was a big drink, or you are kind of small.

that's well below the prima facie limit. in that case, you will probably be asked to arrange for a sober driver, or a taxi, or whatever, but you will not be arrested. at least not by me
2.23.2008 12:03am
Steve in CA (mail):

if you are innocent, the best thing you can do is take the FST's and the portable breath test (if offered. i don't carry one, but some do).


I've heard that before, too. but I doubt it. It seems to me that the standard "field sobriety test" is a good measure of coordination and not much else. Here's a Washington Post article that backs me up a little, although it's not a scientific study. But there have never been any studies that support the use of those tests to measure sobriety, as the article notes.

Now, I could insist upon a breath or blood test. But I know that I could get arrested even if I blow a .06.

In California, there's an "administrative penalty" (you lose your driver's license) for refusing to take the sobriety tests.

Anyway, this is highly off-topic. But to get slightly back on topic, I think that most people who are pulled over don't know that they don't have to answer the officer's questions. Certainly, if they're "detained" in the sense of "not free to leave," then they probably think they have to answer.
2.23.2008 12:29am
Steve in CA (mail):
I should revise my statement: I know why you don't have to mirandized on a traffic stop, but I'm just saying that perhaps you should be. You're wrong that cops only have to mirandize you if you're under arrest -- I actually read most of the paper that Orin Kerr links to here, and unless I'm misreading it, generally, you also have to mirandizing in some non-arrest situations. Traffic stops aren't one of them, but maybe they should be. If you're not free to go, you're effectively under arrest, and you shouldn't have to say shit.
2.23.2008 12:32am
whit:
"I should revise my statement: I know why you don't have to mirandized on a traffic stop, but I'm just saying that perhaps you should be. You're wrong that cops only have to mirandize you if you're under arrest -- I actually read most of the paper that Orin Kerr links to here, and unless I'm misreading it, generally, you also have to mirandizing in some non-arrest situations."

i will repeat. custodial/formal arrest OR the functional equivalent. that's when miranda is required. under FEDERAL miranda standards. some states have a stricter standard. but that's the general standard.

" Traffic stops aren't one of them, but maybe they should be. If you're not free to go, you're effectively under arrest, and you shouldn't have to say shit."

first of all, you never HAVE to say "shit.". (apart from identifying yourself in certain situations). that is not the issue. the issue is when cops have to ADVISE you of that. i have probably read miranda several thousand times, testified in numerous unsuccessful motions by defense to suppress statements given in absence of miranda, etc. i have a good working knowledge of this law.

and you are wrong.

here's how it works. arrest =/= detention. formal/custodial arrest is MORE than merely detention.

there is voluminous case law on this. i'm speaking from experience in literally HUNDREDS of trials. i've probably detained thousands of people and miranda was not required. because detention/stop/terry/traffic stop =/= formal arrest.

if you WANT cops to have to mirandize in those situations, groovy. but it aint the law (in most jurisdictions), nor imo should it be.

and in the traffic stop situation you gave. i explained you don't HAVE to answer any questions (apart from identifying yourself verbally or with id). but cops do NOT have to mirandize you.

also note that in many jurisdictions, even if you were under arrest, they don't have to mirandize you to ask you to perform FST's (in some they do). most jurisdictions i am aware of view FST's as direct, not testimonial evidence, and view miranda as applying only to testimony. iow, not interrogation to do FST's. clearly, asking somebody how much have you had to drink could be construed as interrogation, but you don't need miranda UNLESS the detention has gone BEYOND A MERE DETENTION and into the realm of formal/custodial/functional equivalent of arrest. factors (among many ) to consider when this determination is made : how many officers present, length of detention, force used consistent with the crime, words spoken by the officer, physical actions by the officer, etc.

fwiw, the arrest is viewed from the standpoint of a reasonable person in the situation presented to the detainee. would a reasonable person think they were being restrained OT THE EQUIVALENT of a formal arrest. most people know that most traffic stops do not result in arrest/booking. this is part of the reason why a traffic stop is not reasonably believed to be a formal arrest equivalent.
2.23.2008 1:12am
whit:
"I've heard that before, too. but I doubt it. It seems to me that the standard "field sobriety test" is a good measure of coordination and not much else. Here's a Washington Post article that backs me up a little, although it's not a scientific study. But there have never been any studies that support the use of those tests to measure sobriety, as the article notes."

rubbish. they do not primarily measure coordination. try educating yourself. have you studied the NHTSA manual i have. the most reliable test is the horizontal gaze nystagmus (of the 3). it also has zero to do with coordination.

they each have relative level of confidence (of impairment)

read: Improved Sobriety Testing (DOT HS-806-512)

that's a source document, not some cheesy newspaper article.

when you take the totality of the circ's - 3 tests, physical indicia, statements, driving pattern, witness statements (if any), etc. etc. the confidence is very very high.

i have NEVER arrested somebody for DUI *who* performed FST's who did not register a .08 or above.

furthermore, field portable breath tests add to the confidence level.

"Now, I could insist upon a breath or blood test. But I know that I could get arrested even if I blow a .06. "

you can't INSIST on one in the field. in most states, you have the right to one after you are arrested ,including one by a medical professional of your choice, after the police do one.

"In California, there's an "administrative penalty" (you lose your driver's license) for refusing to take the sobriety tests. "

really? that may be true. i've never heard of it, though. i've only heard of admin penalties for refusing to give a breath sample AFTER arrest. if so, that's weird, but i am not familiar with california DUI law, so without a cite, i'll stand by on judgment.

"Anyway, this is highly off-topic. But to get slightly back on topic, I think that most people who are pulled over don't know that they don't have to answer the officer's questions."

so what?

"Certainly, if they're "detained" in the sense of "not free to leave," then they probably think they have to answer.

again. so what?

miranda applies in custodial arrest situations, or the formal equivalent. most people (impaired or not) do answer some or all of my questions. some don't. i really don't care either way. if you are innocent, you are an idiot if you don't answer the questions. they help exonerate you. ditto for the FST's.

the nice thing about DUI is that of all the crimes i arrest for, NO crime is less likely to have a false arrest, let alone a false conviction (in the latter, assuming you take the breath test).

witnesses lie, victims lie, etc. the FST's don't. it is REMOTELY possible that you could fail all three FST's etc. and not be impaired, but i have never seen anybody fail all 3 and not blow a .08. and i've arrested a LOT.

furthermore, if you are by some strange confluence of bad factors arrested for DUI and you are INNOCENT< then the breath test is your best friend. it's accurate, and is an impartial (unlike witnesses and victims in other crimes) tool that has no bias to call you guilty or innocent, no bias to pull you out of a lineup, falsely accuse you, etc. it's your best friend. it's the fairest tool in the justice system.

if you aren't a .08 it will tell the cop that. unequivocally. and if you don't believe it, in my state, you have the right to have a medical professional take a blood sample for your own testing procedure at the lab you choose. how fair is that?

so stop whinging about DUI. there is no crime i am aware of where the innocent have greater protection. that's a damn good thing. and if you know you are innocent, take the friggin FST's and if necessary, breath test.

fwiw, i was given FST's once in college after a traffic stop. i passed. they work.
2.23.2008 1:40am
Nathan_M (mail):

if you are innocent, the best thing you can do is take the FST's and the portable breath test (if offered. i don't carry one, but some do).

That might be true where Whit lives, but it is definitely not true everywhere. In my jurisdiction, police officers need reasonable grounds to demand a breathalyzer test. Voluntarily performing a sobriety test can give the officer those grounds where they might not otherwise exist.

Additionally, failing a FST can also result in an impaired driving charge even if the driver is under the legal limit. Unlike Whit I have seen cases where people have been convicted of impaired driving and have blow under .08 on a breathalyzer.
2.23.2008 2:23am
whit:
"That might be true where Whit lives, but it is definitely not true everywhere. In my jurisdiction, police officers need reasonable grounds to demand a breathalyzer test."

correct. but i was referring to (see above) the PORTABLE BREATH TEST. that's different than the breathalyzer.

in my jurisdiction, the former is usable for PC but *not* as evidence in trial. it is also not the test required under implied consent doctrine.

and if yer innocent, but you failed the FST's it will save you a trip to the station.

" Voluntarily performing a sobriety test can give the officer those grounds where they might not otherwise exist. "

sure. if you are impaired. i said IF YOU ARE INNOCENT.

if you are guilty, and wish not to take responsibility for your actions, i would refuse the FST's obviously.

"Additionally, failing a FST can also result in an impaired driving charge even if the driver is under the legal limit."

correct. the legal limit is the prima facie indication of impairment. it's not required to prove impairment. note in my jurisdiction, you can be convicted of DUI for either being impaired *or* being .08.

" Unlike Whit I have seen cases where people have been convicted of impaired driving and have blow under .08 on a breathalyzer"

so have i. i said *i* have never arrested somebody who performed the FST's who WAS under a .08 (except for DUI drugs cases, of course).

given a reading under .08, you gotta have a pretty terrible driving pattern to be convicted, but it does happen.

in some jurisdictions, there is a prima facie limit (.08) and then there is a limit below which you CANNOT be found impaired by liquor (.04 in some)

if a guy takes a portable breath test on scene (my partner or somebody brings one) *and* he blew under a .08 i would offer him the taxi and we tow your car option.
2.23.2008 2:41am
Oren:
As someone that cannot performs FSTs while sober (I've tried, I'm really just uncoordinated), the breath test is the only way to 'prove' that I'm not guilty.
2.23.2008 5:56am
Vermando (mail) (www):
Can I move to the world in which Whit lives? Every cop just following the manual, looking to protect the people and property of the area. Sounds great, and I'm sure it's usually true, but two points:

1) Sometimes cops are not so helpful. By that I mean not just in the sense of violating my rights, but even just being intimidating in a way that makes law abiding, innocent citizens wonder what the guy's gonna choose to do.
2) In the best of circumstances, because of the enormous power imbalance, most encounters with cops in situations in which they're investigating you are incredibly stressful. That's true even in Whit's world - stay on the cop's good side so you might get a break. Who the heck appointed ya'll the arbiter of whether I deserve a break or not, and why should it depend on my willingness to bow down before ya'll?

In that situation, I'm supposed to believe that there won't be false positive confessions from people who have that heart pounding feeling and who know that they have to make the cop happy somehow? As much as I enjoy reading about Whit's experiences above and I'm sure he's a fine cop, I don't buy it, not for a large enough percentage of cops for a large enough percentage of cases to not, indeed, desire / search for protections that a lot of cops in a lot of situations will find silly / onerous.

In the end, cops have almost unchecked power in their encounters with the citizenry - I return to the very first point that the best solution is to record as much as freaking possible so there's accountability, the only check I've known to be effective in consistently preventing abuse.
2.23.2008 7:08am
markm (mail):
unless im going to carry a video camera strapped to my shoulder, it's not going to be there for most of my interrogations - rape, DV, child molestation, assault, etc.

Why not build it into your helmet? Video cameras with solid-state memory come as small as cell phones. That does give a fairly limited recording time, say 15 minutes, but you can just keep it on a continuous loop (recording over the oldest video) until you see or hear something worth preserving, and then put in a new memory chip and tag the one with the recording as evidence.
2.23.2008 9:57am
David M. Nieporent (www):
Can I move to the world in which Whit lives? Every cop just following the manual, looking to protect the people and property of the area.
Certainly. But when you get there, don't read Radley Balko's site, or you'll see scores of examples of all the cops that Whit doesn't think exists.

You know, like where officers throw paralyzed people on the ground just for fun. Of course, Whit might say that this was just one cop -- but it wasn't. Only one actually did it; several others stood around and did nothing. Not even a comment, let alone intervening. And they certainly didn't write it up.

One problem with that little world of Whit's, though: no matter how egregious the conduct, cops always seem to be "following the manual."
2.23.2008 10:54am
whit:
"As someone that cannot performs FSTs while sober (I've tried, I'm really just uncoordinated), the breath test is the only way to 'prove' that I'm not guilty"

the first and most accurate of the NHTSA battery of FST's is the horizontal gaze nystagmus test. i have never arrested anybody for DUI who did not give at least 4 cues on HGN. HGN has (as i have said) absolutely NOTHING to do with coordination. so, unless you have natural nystagmus, which is extremely rare (and people who have it - know it, cause if they have ever had a physical, the dr will find it instantly), that will be the clincher.

so, do you have natural nystagmus? if not, then you won't show HGN cues when sober, and what you said is false.

out of HUNDREDs of FST's i have performed, i have seen one case of natural nystagmus. and yes, the guy knew he had it.

so, i call shenanigans. sorry
2.23.2008 12:59pm
whit:
"Can I move to the world in which Whit lives? Every cop just following the manual, looking to protect the people and property of the area. Sounds great, and I'm sure it's usually true, but two points: "

i never claimed every cop did everything right, anymore than every defense attorney, prosecutor, witness, or judge does.

nice strawman.

my point, and i stand by it, is that there is no crime i am aware of that offers greater protection to the innocent than DUI's. simply put, the FST's work, and the breathalyzer works even better. if you're not a .08, it will PROVE that, and everybody knows that. it's based on scientific principles of light refraction. unless you want to deny the laws of physics, stop whinging.

"1) Sometimes cops are not so helpful. By that I mean not just in the sense of violating my rights, but even just being intimidating in a way that makes law abiding, innocent citizens wonder what the guy's gonna choose to do."

so what? nobody denies that SOME cops suck. so do some witnesses, some victims, etc. this is not a perfect world. but i repeat, out of all the crimes you could be accused of, NONE offer greater protections to the innocent than DUI. because even if a cop is evil, bad, and out to get poor you (victim syndrome much?), the breathalyzer has no bias and it doesn't lie.

so, get over your paranoia.

"2) In the best of circumstances, because of the enormous power imbalance, most encounters with cops in situations in which they're investigating you are incredibly stressful."

for some people, yes. for many others, not at all. i've interrogated hundreds of suspects. made thousands of traffic stops. some people are intimidated. some aren;t. so what? how is this relevant to miranda?

" That's true even in Whit's world - stay on the cop's good side so you might get a break. Who the heck appointed ya'll the arbiter of whether I deserve a break or not, and why should it depend on my willingness to bow down before ya'll?"

nice strawman. nobody said you had to bow down. like i said, i've had many DUI suspects who refused the FST's etc. that's their right, and i respect that. but there is something called probable cause. GIVEN probable cause, i do not HAVE to arrest you. i can cut people breaks. that holds true mostly for crimes where there is not a victim who is making a complaitn as a victim, but for things such as open container, traffic infractions, etc. if you don't like that - tuff. cops have discretion, within certain bounds, just as judges do. that's the way the justice system works. if you are going to be an argumentative, whiny, jerk with victim syndrome, the sad fact is you ARE less likely to be cut a break if and when you break the law. tuff.

"In that situation, I'm supposed to believe that there won't be false positive confessions from people"

wow. strawman #3. you're on a roll. nobody denied that false confessions happen. (note: with OR without miranda. which was one of my earlier points).

let's see how many more strawmen you can erect.

' who have that heart pounding feeling and who know that they have to make the cop happy somehow?"

RUBBISH. no suspect has to make the cop happy. anybody has the right to talk or not, upon arrest. and this assumes that it makes the cop happy when you do talk. many cops are quite happy to tell you to "shut up" and are happy when you do so. and taking a statement takes time and paperwork, so in some respects you do us a favor when you shut up :)

" As much as I enjoy reading about Whit's experiences above and I'm sure he's a fine cop, I don't buy it, not for a large enough percentage of cops for a large enough percentage of cases to not, indeed, desire / search for protections that a lot of cops in a lot of situations will find silly / onerous."

persecution complex and general paranoia noted. yes, all these cops are out there just looking to make false arrests of sober people (who will subsequently blow a .000 on the breathalyzer and make the cop look like an idiot, not to mention bring up civil liability).

i get it. cops are evil and you are the great protector of society. you are a persecuted man, and the cops are out to get you. you have no rights in this facists, imperialist police state. FIGHT THE POWER.

"In the end, cops have almost unchecked power in their encounters with the citizenry - "

amazing. when it's not strawmen, it's outright histrionic rubbish. riiiiiiight. "unchecked.".

if you ever get off your high horse and actually DO a ride along with the cops, you will notice what many others who do so have noticed, that the cops are actually remarkably restrained in the power they have, based on constitutional law, case law, dept. policy, etc - whether ut comes down to force, pursuits, arrest, etc. when i've had citizens who actually care enough about truth (vs. your paranoid rubbish) to do a ride along, they nearly universally notice this.

"I return to the very first point that the best solution is to record as much as freaking possible so there's accountability, the only check I've known to be effective in consistently preventing abuse."

correct. and it also prevents false complaints, and allows easy prosecution fo those that make such claims. i love audio and video. and like i said, i'm all for it. and like i said, MY liberal legislature makes it a crime for me to record audio of anybody without telling them and getting their permission first. how stupid is THAT?
2.23.2008 1:14pm
whit:
"Why not build it into your helmet?"

my HELMET? yes, i walk into your average burglary, rape, assault, etc. wearing a HELMET?!?!?

" Video cameras with solid-state memory come as small as cell phones. That does give a fairly limited recording time, say 15 minutes, but you can just keep it on a continuous loop (recording over the oldest video) until you see or hear something worth preserving, and then put in a new memory chip and tag the one with the recording as evidence"

that's all well and good, but like i said, IM ALL FOR RECORDING. how this is relevant to miranda... whatever.

and again, i CAN"T do this because i'd be committing a crime (generally speaking) without first getting permission from every person present that i am recording.

welcome to liberal WA state.

we were actually discussing this in roll call a few weeks ago. almost every cop present would PREFER to have video camera in their car, and be allowed to tape record at scenes. so, talk to the administrators, not us.

cops realize that while audio/video doesn't tell the whole story, it is a useful tool to record the truth, and that's a very good thing. it protects us.
2.23.2008 1:21pm
whit:
"Certainly. But when you get there, don't read Radley Balko's site, or you'll see scores of examples of all the cops that Whit doesn't think exists."

reason is my favorite political website fwiw. i got my dad a subscription for christmas.

regardless, nice strawman. again. nobody claimed that some cops aren't corrupt (ditto defense attorneys, prosecutors, etc.)

again, how relevant.

nobody denies this. nice irrelevant strawman.

"You know, like where officers throw paralyzed people on the ground just for fun. Of course, Whit might say that this was just one cop -- but it wasn't. Only one actually did it; several others stood around and did nothing. Not even a comment, let alone intervening. And they certainly didn't write it up.

One problem with that little world of Whit's, though: no matter how egregious the conduct, cops always seem to be "following the manual.""

again, who is denying that some cops are bad? who is denying that some are criminals with a badge?

strawman. again. i certainly don't deny that. this is your response to a discussion about miranda and it's efficacy? 'some cops are bad'. yea, no kidding. and this is relevant how?

nobody denies this, but when you have no pertinent facts to discuss and points to make, i guess this is the best you can do.

kind of sad.
2.23.2008 1:26pm
Fub:
whit wrote at 2.23.2008 1:40am:
[quoting Steve in CA at 2.23.2008 12:29am]:"In California, there's an "administrative penalty" (you lose your driver's license) for refusing to take the sobriety tests. "

really? that may be true. i've never heard of it, though. i've only heard of admin penalties for refusing to give a breath sample AFTER arrest. if so, that's weird, but i am not familiar with california DUI law, so without a cite, i'll stand by on judgment.
The legal doctrine for admin penalties upon refusing a field test, in CA and some other states, is called implied consent.
2.23.2008 1:54pm
whit:
i am well aware of implied consent laws. and the administrative vs. criminal bifurcated process.

that's not my point.

my point was the claim that you can lose your license in cali for refusing to take SOBRIETY TESTS.

and i say again, i'm not saying it's not true. i'm saying i'd like to see a cite for it.

nearly every state has an administrative suspension of license for refusing to take a breath test (upon arrest based on PC) but i have never seen any state that suspends your license for refusing to take SOBRIETY TESTS.

do you grok the difference.

breath (or blood, etc.) sample refusal resulting in suspension? yes. as i've said.

sobriety test refusal resulting in suspension in cali?

i'm not aware of that law. i read the link. i saw no mention of it - for SOBRIETY TESTS

can you show me the relevant law, and i'll then be edumacated about it. i would love to see this law. again, i'm not calling shenanigans, i'm just asking for a cite so i can verify this bizarre claim

tia
2.23.2008 2:19pm
loki13 (mail):
Shorter Whit:

I'm a cop. ALLCAPS. Your post is a strawman. ALLCAPS. Just because there's all this evidence of other cops doing bad things doesn't mean any of them do, because your post is a strawman and I'm A COP. I now about everything you can post but I didn't address it because it undermines my case... um.... is a strawman... um.... I'm a cop..... um ISN'T MY POINT. So let me change the subject about something else that I, AS A COP, know about.

Seriously, we get it. Not all cop are bad. Most are quite good. And it's a tough job. Here's the question- do we set up rules that enable the following:
1. Cops to do their job.
2. Citizens' rights to be protected from abuse of state (cop) power.

Arguably, we do too much of 1, and not enough of 2. But that's my opinion. And I'm NOT A COP.
2.23.2008 2:54pm
Fub:
whit wrote at 2.23.2008 2:19pm:
nearly every state has an administrative suspension of license for refusing to take a breath test (upon arrest based on PC) but i have never seen any state that suspends your license for refusing to take SOBRIETY TESTS.

do you grok the difference.
I thought you were calling breath/blood/urine tests "sobriety tests". You were apparently referring to the "walk a straight line" type of roadside tests, which I agree carry no admin penalty for refusing. My bad.
2.23.2008 2:58pm
whit:
"Seriously, we get it. Not all cop are bad. Most are quite good. And it's a tough job. Here's the question- do we set up rules that enable the following:
1. Cops to do their job. "

yes

"2. Citizens' rights to be protected from abuse of state (cop) power. "
yes.

and i'll add a 3rd.

Cops to be protected from false and malicious complaints.

that's why i (for the umpteenth time) support tape recording of cops by citizens AND tape recording of citizens by cops.

it keeps people honest, weeds out bad cops, and helps prosecute those who make false complaints

win win win

i strongly disagree with your belief that 1 is done quite well, but 2 isn't. i think they both need improvement. but i also think 2 is done at least, if not more, than 2.






Arguably, we do too much of 1, and not enough of 2. But that's my opinion. And I'm NOT A COP.
2.23.2008 4:01pm
whit:
"I'm a cop. ALLCAPS. Your post is a strawman. ALLCAPS. Just because there's all this evidence of other cops doing bad things doesn't mean any of them do, because your post is a strawman and I'm A COP. I now about everything you can post but I didn't address it because it undermines my case... um.... is a strawman... um.... I'm a cop..... um ISN'T MY POINT. So let me change the subject about something else that I, AS A COP, know about"

nice snark. but i didn't bring up that crap. i responded to it. we were discussing the law of miranda. having given miranda umpteen times, and having testified countless times, etc. i gave my perspective. most people were (as usual) confused in the difference between detention (not requiring miranda) and custodial arrest/functional equivalent, which does.

it was those with no salient facts that chose to brought up the strawmen, which i'm glad to see you concede :) were in fact strawmen.

nobody, certainly not i, made any sort of claims that cops were all goodness and light, nor is that remotely relevant to miranda.

most people who have nothing constructive to add engage in the politics of destruction, and i rose to the bait they laid out there.
2.23.2008 4:04pm
whit:
fub said: "I thought you were calling breath/blood/urine tests "sobriety tests". You were apparently referring to the "walk a straight line" type of roadside tests, which I agree carry no admin penalty for refusing. My bad."

no problem.

i was responding to this claim by steve: "in California, there's an "administrative penalty" (you lose your driver's license) for refusing to take the sobriety tests. "

nobody refers to the chemical/breath/blood analysis as 'sobriety tests'. because they aren't. that was his mistake.

the NHTSA battery of tests (also properly referred to as field sobriety MANEUVERS) are commonly referred to as sobriety tests, see: FST's (Field Sobriety Tests)

nobody, except steve, would refer to the breathalyzer/breath test, etc. as a "sobriety test".

NHTSA refers to them as:
"alcohol screening devices"

i have also heard them referred to as "chemical test instruments", etc.

nobody refers to a blood, breath, or urine test as a sobriety test. that's reserved for the field tests, or other similar stuff.

note that these instruments, or a blood screen do not test for sobriety or impairment. they reveal the concentration of alcohol in the system (breathalyzers by testing the alveolar sample and then extrapolating the blood content via formula, and blood tests by simply measuring the amount in the blood).

an FST more closely tests your sobriety or impairment - iow, how the alcohol is affecting you.

the breathalyzer etc. says nothing directly about how the alcohol has affected your sobriety. it just says how much alcohol you have in your system. clearly, if you are a .464 (highest reading i ever got from a suspect), you are obviously NOT sober, but it is good to note that they measure two somewhat different things - effects of the alcohol upon your body and brain, and the actual amount of alcohol in your bloodstream. the former is much more clearly a measure of sobriety vs. the latter
2.23.2008 4:14pm
Steve in CA (mail):
Thanks for clearing that up about the sobriety test vs. blood-breath-unrine-whatever tests. I was mistaken. I've never been pulled over for DUI, but if I ever am, it's good to know the difference.

I'm still very skeptical of the field sobriety tests, apart from the eyeball-movement one. The rest seem very subjective to me, and, at least according to that WaPo article, not well-supported by scientific tests.

Anyway, I still think you're missing my initial point when you say:


most people were (as usual) confused in the difference between detention (not requiring miranda) and custodial arrest/functional equivalent, which does


I understand the difference, I just don't agree with it. One of the points of Miranda was to make sure people are making an informed waiver of their 5th Amendment rights. If someone is detained but not arrested -- still not free to go, in other words -- and they waive their rights, I don't think that's an informed waiver.

You've said over and over (to paraphrase), "you don't know your rights? Tough crap. It's up to you to know when you're under arrest and when you're under detention. If you're under arrest, we'll read you your rights, otherwise, it's your problem." I think that's a ridiculous expectation to have of the general public. The cops are trained, as the paper describes, to blur the lines between detention and arrest. If I'm not free to leave, what's the difference to me whether I'm in my car, a police car, or an interrogation room?
2.23.2008 4:55pm
Steve in CA (mail):

If someone is detained but not arrested -- still not free to go, in other words -- and they waive their rights, I don't think that's an informed waiver.



What I meant was: if they waive their rights without being told they have the right to remain silent, that's not an informed waiver.
2.23.2008 4:59pm
whit:
"Thanks for clearing that up about the sobriety test vs. blood-breath-unrine-whatever tests. I was mistaken. I've never been pulled over for DUI, but if I ever am, it's good to know the difference. "

no prob

"I'm still very skeptical of the field sobriety tests, apart from the eyeball-movement one. The rest seem very subjective to me, and, at least according to that WaPo article, not well-supported by scientific tests. "

interestingly, in my state, the HGN is the hardest to get admitted due to our rules of evidence rules. i've been voirdired (i think that's what they call it) by defense attorneys before it could get in. it IS by far the most accurate. we can't testify to it, but any experienced HGN administrator can tell within about .02 to .03 of the BAC *just* with HGN. like i can say the guy will be a .15 and i am certain he will be between .12 and .18. and i've never seen anybody with 4 cues (the minimum to fail) that wasn't at least a .08.

the other two are not as accurate, but when taken together (they are somewhat similar, and thus the probability formula isn't the same as two unrelated tests) with HGN *and* all the other factors. it's pretty accurate. it's certainly a better PROBABLE CAUSE test than is present in the vast majority of other arrests - assault, rape, etc.

and when you add in a portable breath test the probable cause is VERY strong. the PBT's are not given the same reliability as the breathalyzer instrument at the station, but they are still very very very accurate. easy to test by testing a subject wiht both instruments side by side. note that these are not just available to law enforcement as far as i know. you can buy one yourself.


i'll address your other point in another post.
2.23.2008 5:58pm
whit:
"Anyway, I still think you're missing my initial point when you say:most people were (as usual) confused in the difference between detention (not requiring miranda) and custodial arrest/functional equivalent, which does ...

I understand the difference, I just don't agree with it. "

and i totally respect that. i just don't agree with it :)

"One of the points of Miranda was to make sure people are making an informed waiver of their 5th Amendment rights. "

correct.

"If someone is detained but not arrested -- still not free to go, in other words -- and they waive their rights, I don't think that's an informed waiver. "

the issue in miranda was that when people are arrested, the situation is inherently coercive such that without being explicitly told what their rights were, the courts could not be assured that their speaking to the cops was voluntary.

your point is, apparently, that ANY detention is sufficiently coercive such that without miranda warnings, you can't say the statement is voluntary, right?

"You've said over and over (to paraphrase), "you don't know your rights? Tough crap."

first of all, i didn't say that, because as i DID say, there is not a person with a pulse above the age of 8 who doesn't know their rights. get real. watch TV? movies? read a book? etc. etc.

i've had 10 yr old recite miranda VERBATIM to me. not suspects, just street kids having fun.

my point was that it is not the responsibility of cops to inform people (imo) of their rights merely because they are being detained and questioned. i agree that under miranda, cops are required by law to do so, although i think miranda was not a good decision. i think it was judicial activism, but i practice the law as it is, not as i think it should be.

"It's up to you to know when you're under arrest and when you're under detention. If you're under arrest, we'll read you your rights, otherwise, it's your problem."

that's not what i am saying. i am saying it is up to you to decide whether you want to talk to the cops or not. *if* you are placed under arrest, the cops will specifically advise you that you don't have to, but in either case it's YOUR decision. it IS up to you to make that decision in either case. but in a non-custodial situation there isn't , nor should there be, a burden on govt. to TELL you you don't have to.

" I think that's a ridiculous expectation to have of the general public."

i think it's entirely reasonable.

" The cops are trained, as the paper describes, to blur the lines between detention and arrest."

i don't care what the paper claims. we are not trained to do so. most cops don't have a extremely thorough understanding of miranda, and ime most cops OVERmirandize (mirandize often when it isn't legally necessary) to cover their butts. i have seen this a lot, in three different agencies. the general consensus is - when in doubt - mirandize.

" If I'm not free to leave, what's the difference to me whether I'm in my car, a police car, or an interrogation room?"

the difference is, at least as case law states, that a custodial arrest (or functional equivalent) is coercive, and merely being detained isn't, or at least isn't as coercice as to require miranda.

pop quiz. which is more coercive/intimidating?

1) you see blue lights behind you. you pull over. the cop walks up to your door and says "good evening sir. i pulled you over because i noticed you ran that stop sign. any reason for that? " (note this is the verbal judo script). you answer - "i didn't see it" (or whatever). cop says "i need your license, registration, and insurance please". you hand them over. cop asks "had anything to drink tonight sir?"

or

2) you are handcuffed, told you are under arrest for X, and then a cop asks you "had anything to drink tonight sir?"

but i understand your point. any detention is, in your understanding, sufficiently coercive such that nothing incriminating that anybody says to a cop in response to questioning can be said to be voluntarily given. the law in most states says otherwise, and so do i.

but maybe you should move to hawaii. in hawaii (at least when i was there), if you were the FOCUS of the investigation, i had to mirandize you. even over the phone. no detention necessary.

but i think we understand our differences.
2.23.2008 6:12pm
Dave D. (mail):
....I read the Miranda warning to suspects for 32 years It was my experience that those who had thought about it, or were con wise, or lawyers, knew that they were not going to waive and answer questions and told you very quickly that they wanted a lawyer. AND THEY SHUT UP.
...But most folks wanted to tell me their story. They thought they were arrested by mistake, or they could catch a break, or correct my bad impression about them and so they waived their right to silence and blithered on. Some of these folks were arrogant and were sure they could outsmart me by winging it. Or they had a story down pat and wanted to get it out as a demonstration of their innocence.
...The Miranda warning is so ubiquitous that most folks didn't listen to the words. They've heard it so many times they turn off their 'listeners' and think of what they want to say next. And the spoken word has less authority than the written word. Crazy as it seems, many, many folks responded to my advisal as if it were an incantation...magic words, as though they were listening to the Latin Mass and had to be there but didn't need to understand and weren't responsible for what was said.
...YOU HAVE THE RIGHT TO REMAIN SILENT. ( yeah, yeah, I KNOW that )
...ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.
...Few legal statements are as absolute as this one is. What part of " Anything " and " Can and will " don't they get ? But the majority would look at me and have no visible indication that they heard, understood or considered these words to be taken literally.
...YOU HAVE THE RIGHT TO SPEAK TO AN ATTORNEY AND TO HAVE ONE PRESENT WITH YOU WHILE YOU'RE BEING QUESTIONED. ONE WILL BE APPOINTED TO REPRESENT YOU, BEFORE QUESTIONING, IF YOU WISH ONE.
...Here's where the smart guys said they wanted an Attorney. But most folks just looked at me with bored eyes glazed over, or looked away engrossed in watching something else.
...DO YOU UNDERSTAND THESE RIGHTS THAT I HAVE EXPLAINED TO YOU ? HAVING THESE RIGHTS IN MIND, DO YOU WANT TO TALK TO ME NOW ?
...I, like Whit, found most folks think they know the words. But it was my experience that few folks I Mirandized truly understood the meaning that is so succinctly stated therein. There is something wrong with a warning that so often is ignored. Perhaps it's too much legaleeze, too glib, too ritualistic, or some other combination of too's. But I've got to agree with that Berkeley Lawyer, it's lost it's warning effect and is not effective now, if it ever really was.
..Last point. Whether the suspect waives or not, they are still responsible for what they say. Go ahead and invoke, but don't then get bored, or angry, or stupid and blither on about anything. One of my jobs is to tie you to a story. Your story of events. Maybe it's true, maybe not. That isn't all so apparent at the beginning of an investigation. But once you've said it ( muttered, shouted, cursed or mumbled it ) YOU OWN IT. If you're going to invoke, choke yourself into silence. Don't even ask questions ( Will the Deputies let me go after I sober up ? ). Most folks don't do that. ANYTHING YOU SAY.......
2.24.2008 12:16am
Dave D. (mail):
..Professor, ( Orin ),lots of folks have balance problems and do the field sobriety tests poorly. It's not an objective test, it's subjective. And the tests are only a part of the real test and evaluation I'm making. How did you get out of the car ? Did you have to use your hand to reach out and touch the car to maintain balance while you stood or walked, do you interrupt while I'm explaining the test? are you loud ? Rude and abrupt, what objective symptoms ( odor, dress, eyes, speach, demeanor ) do you exhibit. I always asked folks if they had anything wrong with their hips, legs, ankles or feet. Many did and do. If the location was too rocky, or slippery, or hazardous I didn't do balance tests. I asked them if they knew the alphabet and if they said yes I had them print it on a sheet of paper. I gave the handclap test, and the finger count.
...If you go to cocktail parties and don't drink, you see folks getting more and more intoxicated. It's sort of like cutting up chickens. After a hundred or so chickens, your really good at it. It is not a hard skill to learn. You can guess the B.A. and usually get pretty close.
...If after observing a suspect I judged he wasn't under the influence, I let him go, regardless of how he did the tests. If I thought he was intoxicated I arrested him, regardless of how he did the tests. It was common when I worked for dopers to take a swig or two of beer to cover their drug intoxication before driving. So I just judged the intoxication as best I could. Now that we have the P.A.S. field testers, it's probably cut down on bad DUI arrests and given the shaky Jakes a better chance of weaving home sober.
2.24.2008 12:38am
Vermando (mail) (www):
Really interesting discussion above - I love how our technology today can bring together such diverse experiences and expertise on an issue like this. Years ago it would have just been my friends / colleagues and I echoing each other.

A conclusionary point I find interesting: one of the better (in my opinion) defense attorney bloggers out there posted a piece separately on Miranda (perhaps inspired by the discussion here). From a very different perspective, he agrees with Whit's point above that videotapes are not a real solution. He says, like Whit above, that the interrogation begins in the street, before they get the defendant into the room, and thus video cameras will necessarily miss key parts of the questioning.

Of course, from his perspective, this is a flaw because it will allow the police to cheat by applying pressure to the accused off-camera. He gives the example of a cop telling a suspect as they are walking from his parole car something like "it's not you we want, we're really after the big guy above you, so just confess to this crime and we'll work something out." The result will be a confession that is, in his view, iron-clad - today, defense attorneys can successfully argue to a jury that the confession that is read to them was coerced by prior action. With videotaping, no argument will be able to overcome the physical power of seeing the defendant confess.

To make sure I did not butcher his argument too badly, a summary quote:
"If videotaped statements become the rule, there are a few things we can bank on. First, the cops will be on their best behavior on camera. Second, it's their house and their rules, and they will set it up to serve their purposes. Third, it will never show everything that matters. Fourth, it will be nearly impossible to overcome."

And again the link. Check it out, as I did not possibly do it justice here, and in general he has excellent insight into topics such as these.
2.24.2008 8:20am
Dave D. (mail):
....When and how you advise Miranda has much to do with a suspects response. A lot of the folks you arrest have been arrested before. Some of them have A PLAN of what to do when they are arrested again. But they are often unsophisticated about the process. They are so narcisissistic and self centered they won't, probably can't, see the event from the view of the investigator. The desire to tell their story, to be believed, is almost overwhelming. They pay as much attention to the Miranda warning as smokers do the the package warning.
...You want an angry suspect who's invoked Miranda to talk to you ? Tell him to shut up. When he leans forward and starts shouting, be attentive. Look thoughtful and nod your head in agreement, as if listening intently. Wow ! You really care. He'll tell much, maybe all.
...You want an arrogant suspect to talk ? Ask him if he really understands Miranda and offer to read it slower. Or ask him if you are going too fast. That's awful hard for a booze/dope fueled toff to ignore.
...So what if the suspect invokes? The ghost of Miranda is as important as a waiver. Statements made regardless of invokation maybe used to impeach the defendant if he does testalie. And recorded evidence, the suspects own voice telling you his story, or excuses, or anything, is awful hard for him to refute.
...If you are not a lawyer or a cop, Miranda isn't what you think it is and doesn't do what you think it does.
..In my experience, it's mostly eyewash.
2.24.2008 11:38am
whit:
"..Professor, ( Orin ),lots of folks have balance problems and do the field sobriety tests poorly. It's not an objective test, it's subjective"

in some sense, ALL witness testimony is subjective. but yes, it's not as objective as say the PBT.

but... HGN is about as objective as it gets. and as accurate. anybody good at HGN is incredibly accurate with it. it's kind of like condoms. *if* used effectively and per instructions, they are incredibly effective. if not, not so much so...
2.24.2008 3:06pm
whit:
another reason many people waive miranda and talk to police (one i don't recall being mentioned yet) is that many people who are advised of miranda are INNOCENT.

hell, yes. and i have had many innocent people, post miranda, give statements that helped prove their innocence. that's a good thing. i've had people give statements/info post miranda that literally resulted in their being UNARRESTED. again, that's a good thing (granted some of these mirandas were arguably pre-probable cause, but done because the force of the arrest (gunpoint) or other factors of detention rendered it imo and arguable constructive arrest, and thus miranda was a good thing.

but again, many people are innocent. post miranda, many of these people will talk because they are innocent.

i once had a defense attorney tell me that he advised all of his clients, if they were ever to be mirandized by cops not to say anything, and request a lawyer. i asked him "what if they are 100% innocent and could give a good alibi/explanation why they were?" he lauged and said his clients were NEVER innocent..!

lol

now, who's cynical there?
2.24.2008 3:11pm
whit:
i totally agree with the point of miranda, as ritual. that's why i always like to mirandize while handcuffing. it's expected, and just kind of mechanical. and people are more likely to talk. rookies tend to use a tone of voice that makes miranda sound "super official" and make people scared to talk. literally, the tone of your voice can make all the difference. i don't think even the 9th circuit will rule that cops have to have a "super serious and dramatic" tone of voice when reading miranda. so why do it?

miranda, at least in my state is also inaccurate. we are supposed to say "anything you say will be used against you in court"

that is false. anything you say may be used to your benefit in court, or against you in court, depending on whether it's exculpatory or inculpatory. but we don't say that. we say it will be used AGAINST you. that's wrong, and biased pro-defense.
2.24.2008 3:20pm
TyWebb:
Yawn. Welsh White came to the same conclusion, and argued it pretty convincingly with the use of interrogation transcripts, for years prior to his death.
2.24.2008 7:54pm
Dave D. (mail):
...There is a theme running through many of the Volokh site posts, this thread too, of cynicism and disbelief. An ' They're out to get me' attitude and a strong feeling that the truth will not out. It is much more pronounced on Libertarian sites like Reason. It's my strong belief, and the belief of most cops, that the truth will always out eventually. Hopefully, BEFORE the execution.
...This attitude manifests itself in folks saying that they will never answer any questions about anything, not as witnesses, not as suspects. The ultimate I-don't-want-to-get-involved decision.
..Well, I was just your employee, not the law. Many layers of supervision were above me to question my motives, knowledge, judgement and many took delight in finding fault. They had fertile ground to till, I assure you. But when they signed off on the arrest, they bought as much of the blame if it broke bad as I did. Unlawful arrests were mine and their nightmare. If you haven't been sued you probably aren't working the road. And it's embarrassing as hell to be shown to be lazy or stupid or careless or ignorant of the law or Dept. Policy. In front of twelve citizens who pay your wages and a judge you are going to revisit for years to come. Attorneys save those arrest reports. Then they ask you why the last 20 arrests include the same phrases. They couldn't ALL be identical, could they officer ? 20 out of 20 ? In a row ? Attorneys have more questions than anybody has answers and as hard as it is to say you don't know something you should know, it's harder to say you misspoke some moments ago. Trial lawyers live to trip up cops. Some are so good at it it's scary. The only defense any witness has is the truth. Juries don't just judge the words, they judge the person. They couldn't pay me enough to lie. I'M not on trial. I don't get paid by the arrest, by the ticket or even by the hour. I'm civil service and , while you can fire me for lying, you can't even punish me a little bit for telling the truth. Go ahead and try, I'll sue your sox off and honk every day as I drive your (ex) Porsche past your (ex) house.
..Those disinclined to believe in the power of the truth to rise through the muck and surface are not going to change. But I have seen it happen over and over again. THe truth really does set folks free. That's the point of the justice system.
2.24.2008 7:59pm
hattio1:
Just a couple of points. First, Whit has made a couple of statements about things that never happen in DUI arrests. The first was that he has never had HGN with all four clues and not had intoxication above .08. The second was that he has never had somebody fail all three tests and not show up as intoxicated. But, as to the second one, he revised to limit that to cases of DUI intoxication rather than drugs. I'm betting that's true for the first. But, the exception kinda swallows the rule. He never found anyone who failed all three tests, or had all four clues for HGN who wasn't over .08 UNLESS they were on drugs*. And how did he know they were on drugs? Well, because they had all four clues on the HGN and failed all three FST's. Nice redux.

The HGN is not as accurate as he would like to think. Besides natural Nystagmus (which is not as rare as he thinks), it can be caused by all sorts of drugs, many of which do not even carry driving warnings. It can also be caused by being overly tired.

Dave D talks about the truth setting people free. The problem with MOST people (and virtually all cops) is that once they have figured out the truth, nothing will change their minds. Whit's exceptions for drug impairment is a case in point.

Back to Miranda, I don't know what the federal rule is because I operate in state court, but in my jurisdiction its whether a reasonable person would feel free to leave, NOT whether they would feel they were under detention equivalent to custodial arrest. (and no, they don't consider all traffic stops detentions, and no, they don't explain the discrepancy). But the state court has freed those who were passengers and not allowed to leave a traffic stop, and subsequently committed a "crime" while leaving the stop.

*Whit does mention the one guy with natural Nystagmus.
2.24.2008 9:49pm
whit:
"First, Whit has made a couple of statements about things that never happen in DUI arrests. The first was that he has never had HGN with all four clues and not had intoxication above .08."

correct. like i said, i did come across ONE case of natural nystagmus. he had 6 cues. he also told me that he had natural nystagmus - if you have it, and you've had a physical, you know it. - he told me, and i didn't rely on the nystagmus test. i did it for giggles, but didn't rely on it. when i PBT'd him (previous agency we had access to PBT's) he was in fact a .03. he passed all the other tests fwiw. but that's ONE natural nystagmus out of hundreds of FST's very very rare.

" The second was that he has never had somebody fail all three tests and not show up as intoxicated."

false. this may sound nitpicky, but it's important. we don't arrest people for driving intoxicated. that;s not the standard. we arrest them for being impaired or a .08 or over (either prong applies).

a good practiced alcoholic is definitely NOT intoxicated at a .10. but he is breaking the prima facie law.

what i said is that i have never had anybody fail all 3 cues who did not have a .08 or above. not the same thing as saying intoxicated.

" But, as to the second one, he revised to limit that to cases of DUI intoxication rather than drugs. I'm betting that's true for the first. But, the exception kinda swallows the rule. He never found anyone who failed all three tests, or had all four clues for HGN who wasn't over .08 UNLESS they were on drugs*."

in every case i had of DUI drugs, i had NO nystagmus, except for vertical in some cases (you almost always see vertical only in non alcohol cases).

" And how did he know they were on drugs? Well, because they had all four clues on the HGN and failed all three FST's. Nice redux. "

false. nice assumption. with DUI drugs, we usually do a breath test at the scene *and* a blood test.

and with drug suspicions, we call in a DRE (i am not one) to fully screen for drugs.

most drugs give no nystagmus (or vertical only), so that's when you SUSPECT drugs is when you have indicia of impairment but you DON'T have nystagmus.

i have never seen in any DUI lab ANYBODY who was over a .10 who did not have at least 4 cues of nystagmus.

so... when you have impairment indicia but NO (or only vertical ) nystagmus, then you start considering dui drugs.

so, instead of asking specific questions, you made erroneous assumptions.

fwiw, natural nystagmus, according to NHTSA occurs in 2-4% of the population.

i have had exactly one case of natural nystagmus out of several hundred FST's.

not saying that natural nystagmus peopel are underrepresented, but that's my experience.

regardless, natural nystagmus IS very rare, ESPECIALLY a natural nystagmus that is pronounced enough to give 4 cues (let alone 6)

also, just because a drug does not have a driving warning does NOT mean it cannot be the basis for a DUI charge.

note also that many drugs (alcohol not being one of them) IMPROVE driving at least to some extent of consumption (bell shaped response curve is typical).

cocaine for example, up to a certain point IMPROVES driving - better reaction time, etc.

so does caffeine.

i've never seen a medical study that shows nystagmus can be caused by fatigue. not doubting you, but i'd need a cite for reference to consider that factoid.
2.24.2008 11:06pm
whit:
"Back to Miranda, I don't know what the federal rule is because I operate in state court, but in my jurisdiction its whether a reasonable person would feel free to leave,"

yes. jurisdictions that have the rule SUCK! :)

" NOT whether they would feel they were under detention equivalent to custodial arrest. (and no, they don't consider all traffic stops detentions, and no, they don't explain the discrepancy)."

that makes no sense. all traffic STOPS (by definition: stop) are detentions. that sounds like judges wanting to have their cake and eat it too. having the detention rule seriously impedes normal investigations. note that many many many times a day i have situations where people are not free to leave, and the VAST majority of them never result in arrest or charges. any DV incident, traffic accident, and many if not cases when i initially arrive (freeze the scene etc.) people are not free to leave, but they are hardly under arrest, and miranda in those circ's would be absurd.

it seriously impedes justice and rationality to have such a rule. i had at least 4 details today where people were not free to leave,and nobody was even remotely under arrest, nor was even a report needed.

if i stop you in a traffic stop, you are NOT free to leave NOR (the more important distinction) would any reasonable person believe that they were. note that in my jurisdictions, PASSENGERS (if not suspected of crime or infraction) *are* free to leave.

"But the state court has freed those who were passengers and not allowed to leave a traffic stop, and subsequently committed a "crime" while leaving the stop. "

yes, in my jurisdiction, unless we have reason beyond the driver's infraction to detain a passenger, we can't. i have let many passengers walk off from a traffic stop for that reason. a terry stop? no. but a mere infraction stop, yes.
2.24.2008 11:15pm
Dave D. (mail):
Hattio1,
...I was a California Highway Patrolman for 32 years, the last twenty a sergeant. The one form that sergeants are required to carry is the CHP103, misdemeanor incarceration form. That could better be called an 'Oops' form, as it's required to be given to an arrestee who is released from custody . Sergeants can and do release folks when the facts reveal a mistake was made. I've released many. If the breath test comes in below the presumtive limit, policy requires the officer to call his sgt. and get approval for booking. A DRE ( drug recognition expert ) makes a drug evaluation if drug intoxication is suspected ( most of these evaluations are inconclusive )and then I, not the officer, decides if booking or 'form 103' is appropriate. The criteria I used is would I let this guy get in his car and drive home NOW, because letting him do that is what the 103 is all about. I let some go and kept some based on the evidence.
...Nobody owns the truth. The Cain and Able case still has some facts we don't know that may change our opinion of whodunnit, and why, and how. I doubt you've been blindsided by some smartass attorney who asked you a question that you never even thought to enquire about, but I have. DAMN ! Why didn't I think of that ? Back then, when it really counted, not now in this courtroom when I look like a moron. Part of a sgt's job is to question the officers in the field about their investigation and ask " did you..." and " did you ever think, maybe..." questions. And these lead to form 103 sometimes.
...Just because you don't represent folks who are kicked loose doesn't mean they aren't; guys that walk don't need representation. Before I put my signature on the "reviewed by " line I sure as hell was going to verify that the law was broken and reasonable cause existed to believe that guy did it.
2.25.2008 12:39pm
Fub:
whit wrote at 2.24.2008 11:06pm:
fwiw, natural nystagmus, according to NHTSA occurs in 2-4% of the population.

i have had exactly one case of natural nystagmus out of several hundred FST's.

not saying that natural nystagmus peopel are underrepresented, but that's my experience.

regardless, natural nystagmus IS very rare, ESPECIALLY a natural nystagmus that is pronounced enough to give 4 cues (let alone 6)
One possible explanation of the discrepancy between your personal experience and the stats you quote: sufficient degree of natural nystagmus may result in either no driver's license or restricted driver's license in some states.

Of course, I'm basing that on personal experience. I know someone with "natural nystagmus" (actually a compensation mechanism for another ocular defect). Because of the physiological condition he can only hold a restricted DL, for limited horsepower motorcycles or scooters. At least in some states, I expect the motor vehicle driving population with "natural nystagmus" would be found in greater numbers on such vehicles.

Maybe you didn't make so many stops of that class of vehicles.
2.25.2008 1:35pm
hattio1:
Dave D and Whit,
Boy I wish I worked in your happy jurisdictions. And I don't say that in the smart-ass way the previous commenter did. (Okay, only slightly smart-ass). Here in AK officers routinely arrest people for being "impaired" if they are pulled over, "fail" the FST's, and blow over .04. The original booking citation will say that they are either impaired on alcohol or drugs. If the person agrees to a blood test, then they test for drugs. But, charges aren't dropped if no drugs come back.

BTW, I put "fail" in quotes above because I had a client who was demonstrated the one leg stand. Cop couldn't hold one leg up for the approximately 5 seconds it took to explain the test. He lost his balance and my client caught him. However, my client correctly balanced on one leg, but only let 27-28 seconds pass when he was supposed to let 30 seconds pass. The officer considered this a fail.

Oh, and every cop who's been through the Trooper Academy considers themselves a DRE and will try to (and usually be allowed to) testify as a DRE expert. (Without an expert report of course).
2.25.2008 1:59pm
Dave D. (mail):
...A little knowledge IS a dangerous thing. I noticed that when our Dept. started a DRE program, the graduates came out certain of their abilities but that this certainty lessened as they got more experience. I've been retired 7 years, but back then a Dept DRE had to record all his evaluations and I believe these were discoverable. I think they also went back and listed the blood tes results, but I was not a DRE so I'm only going on what I heard. To do the pupil evaluation they had to first put the suspect in a dark room and keep him quiet for 20 minutes. Big pain in the butt. When the classes were first offered they were popular, but later you had to dragoon fella's into those classes. Bad JuJu !
..California's presumptive limit is .08, but .04 for big rig and bus drivers. Before I retired there was a law ( passed/proposed ? ) that let you pull the Dr's Lic. of any minor who had an odor of alc. bev. on his breath. No PAS test or B.A. test req'd. Officers word only. I think you impounded his car too. And he couldn't get his privelege back until 21. A DUI was less severe than that. So every jurisdiction has it's loony laws and draco's in the legislature.
2.25.2008 5:12pm
hattio1:
Dave D,
.04 is not the presumptive intoxicated limit. But between .04 and .08 it can be considered by the jury along with other info. Frankly, under .04 is not a guarantee you won't be arrested. Cops will just remember your "glassy eyes."
But yeah, our minor operating after consuming laws are pretty harsh too. I don't think they are as bad as yours...but still.
2.25.2008 7:22pm