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Miranda, Article 31 and Constitutional Advisements

During training seminars frequently the issue comes up as to the best time to advise a suspect of his constitutional rights. There are both legal and psychological considerations in answering this question. Legally, Miranda rights must be administered prior to questioning a suspect who is in custody. Therefore, the investigator must have probable cause to arrest a suspect, and actually place the suspect in custody before the Miranda rights are required. The legal concept of custody exists when a suspect perceives that he is not free to leave an immediate area. The legal test, however, is different in the U.S. Military and in Canada. In those jurisdictions, a focus of suspicion prompts the necessity of obtaining a waiver of article 31 rights (military) or Constitutional Advisement (Canada). A focus of suspicion is a much broader concept than custody. It exists when the investigator forms a reasonable expectation of a suspect’s possible involvement in an offense.

Psychologically, a suspect is much more likely to waive Miranda or other form of constitutional rights if they are first brought up in a casual manner. The following is an example of a casual introduction of Miranda rights: “Joe, I would like to ask you a few questions about this charge against you, but before I do that, you should know that you do have the right to remain silent; anything you say may be used against you; you have the right to an attorney; and if you cannot afford a lawyer one will be provided free.” After an appropriate pause to permit the suspect to respond, he should be told: “I would like for you to talk to me about this matter [specifying the case under investigation], OK?” If the suspect expresses or otherwise indicates a willingness to talk, even by an affirmative nod of his head, the investigator may proceed with the questioning.

Following this verbal waiver, if a department policy requires written waivers, the waiver document which specifies each of his constitutional rights would then be executed. By first eliciting a verbal commitment to talk to the investigator, the suspect is much more likely to sign the more intimidating formal Miranda waiver. This foot-in-the-door approach to obtain a Miranda waiver in no way impacts on a knowing and voluntary waiver of the suspect’s rights since the formal document is ultimately presented in court. However, it does greatly ease the stigma attached to the formal waiver of rights.

The second psychological consideration is when to seek the waiver of Miranda or constitutional rights. Very clearly, it is psychologically wrong to advise a suspect that he has the right to remain silent and the right to an attorney just before accusing him of committing a crime. If rights are issued at that stage, once he is told that the investigation clearly indicates that he committed the crime, he is likely to invoke his constitutional rights. Therefore, the best time to issue the warnings is just prior to conducting a non-accusatory interview, not an accusatory interrogation. With these concepts in mind, consider the following scenarios course participants have related to us:

Scenario 1: A non-custodial suspect that volunteers to be interviewed concerning a crime. Because the suspect is not in custody, no Miranda waiver is required or obtained. Following the interview the suspect is interrogated and eventually admits that he did commit the crime. The suspect’s incriminating statement provides probable cause to effect an arrest. Is the investigator legally obligated to interrupt the suspect’s confession and advise him that he has the right to remain silent? Generally the investigator is not. Even though probable cause may exist to arrest the suspect, the environment and circumstances of the interrogation are still non-custodial. The investigator can obtain full details of the confession without advising the suspect of his Miranda rights because the suspect is still free to leave the room. This assumes, of course, that the investigator did not imply custody through his actions or statements, e.g., “You’re not leaving here until we get this clarified”, “With the evidence we already have I could lock you up.” A common practice is to have the suspect’s oral confession witnessed by a second investigator. Prior to making a formal confession, therefore, the suspect would be advised of his Miranda rights, and most likely waive them since he has told the truth in the presence of a witness. Some departments have avoided this issue entirely by releasing the suspect after he has signed a formal confession. Several hours later, the suspect is then arrested and taken into custody. Obviously the suspect cannot later claim that he was not free to leave during his interview or interrogation. A basic legal principle to keep in mind is this: probable cause is required to make an arrest but establishing probable cause does not require the investigator to arrest a suspect.

Scenario 2: A practice we have come across is for an investigator to Mirandize every suspect prior to questioning. This includes, of course, a large number of suspects for whom there is no probable cause to arrest. One rationale for this practice is that it protects the investigator in court against ambiguous claims of whether or not a Miranda waiver was required. However, the primary benefit is that by issuing the Miranda warnings the investigator implies that he has probable cause to arrest the suspect. This is an area of trickery and deceit which has not been addressed by the courts and we can offer no guidelines in that respect. However, there is another aspect of this practice for which we can express a clear opinion. Obviously, if an investigator advises every suspect of his constitutional rights, many suspects will take the investigator up on his offer and choose to remain silent. Under this circumstance, the investigator simply tells the suspect that he is not under arrest and continues to question the suspect as if no Miranda warnings were issued. Our position is that once Miranda rights are given they must be honored. This would be true even if the rights were prematurely given out of ignorance or under a circumstance where the investigator knew that the issuance of such rights was unnecessary.

Scenario 3: Consider a jurisdiction where focus of suspicion is the threshold to require the advisement of rights. A crime was committed and a number of possible suspects are interviewed. Based on deceptive behavior during one of the suspect’s interview, the investigator forms a suspicion that this is the suspect who may have committed the crime. As a result of this suspicion the investigator must now advise the suspect of his constitutional rights prior to conducting an interrogation. However, as previously stated, advising a suspect of his constitutional rights just prior to conducting an interrogation greatly increases the chance that the suspect will invoke those rights. Under this situation it would be advantageous to advise the suspect of his rights prior to conducting a formal interview. Therefore, in situations where there is even the slightest chance that the suspect may subsequently be interrogated, we recommend a premature advisement of constitutional rights prior to the interview. If the rights are introduced at that stage, in a casual manner, most suspects will agree to talk with the investigator.

Scenario 4: A suspect has been advised of, and waived, his Miranda or constitutional rights. The suspect exhibits deceptive behavior during his interview but before embarking on an immediate interrogation, the investigator wants to gather additional information about the suspect or the crime. Five hours later the investigator initiates an interrogation. Does the investigator have to re-advise the suspect of his constitutional rights before starting the interrogation? The answer is that he does not. A general guideline, at least in the United States, is that once a suspect has waived his constitutional rights, they do not have to be refreshed for up to 24 hours.

The requirement of issuing constitutional rights to a suspect was not instituted to prevent investigators from obtaining confessions from persons guilty of committing a crime. Furthermore, courts provide latitude as to how the rights are introduced and it is permissible to give them prematurely. Therefore, it is our recommendation to (1) introduce constitutional rights in a non- threatening, casual manner; (2) to allow a non-custodial suspect to fully confess prior to administering constitutional rights and, (3) if circumstances may develop which require the issuance of the rights, it is much preferable to advise the suspect of those rights prior to an interview as opposed to an interrogation. As a caveat to this entire discussion, during our training experiences throughout the United States we have encountered various interpretations and applications of the Miranda decision. Consequently, this web tip merely offers our recommendations and an investigator should check with his or her local prosecutor to make certain that these guidelines are consistent with departmental policies.


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