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John Reid & Associates
Properly socialized people do not enjoy lying. None of us invite the
feelings of guilt, fear or anxiety associated with telling a lie. On
the other hand, we also don't like to tell the truth when the truth
may cause loss of pride, esteem, income or freedom. Consequently,
when a deceptive suspect is interviewed he tries to respond to
questions in a manner that avoids telling a lie, but also avoids
A common technique to accomplish this goal is evasion, where the
suspect answers a question with a question. This is illustrated in a
television advertisement where a family no longer has money to
afford sushi. The daughter, holding an empty gold fish bowl asks,
"Has anyone seen Captain Stuey and Little Miss Neptune?" The father,
in between bites of sushi responds, "Did you look all over the place
- under your desk?"
An evasive response is easy to identify and represents a fairly
crude effort to avoid telling a lie. There are, however, more
sophisticated verbal techniques deceptive suspects utilize to avoid
lying to an investigator. This web tip addresses these word games.
Lying by referral
This is a form of disguised evasion and represents a clever way to
avoid lying during an interview. One of the videos we present during
our training seminars is of a police officer suspected of stealing
$200 in money from the evidence room. This is a segment of her
Question: "What do you think happened to that $200?"
Response: "Well as I told Frank, Jim and Randy, I think when the
shelf fell last April the bag containing the $200 somehow ended up
in the trash and was thrown away."
She told the truth in that this is exactly what she told Frank, Jim
and Randy. What she left out of her response is that she lied to her
co-workers. Truthful suspects answer interview question in the here
and now - they stay in the same time zone as the investigator.
Deceptive suspects, however, may jump back in time and make
reference to an earlier communication. Examples of this include: "As
I told the other investigator...", "As I wrote in my statement..."
or, "My wife asked me that, and as I explained to her..."
Qualifiers within a response are the "small print" that is often
overlooked. For example, when checking out at a grocery store we
hand the cashier a coupon that advertises a reduced price on the
pizza we bought. The cashier then explains that if we read the
coupon carefully, the reduced price only applies if you purchase 12
or more pizzas on a Wednesday between 1:30 and 2:00 am.
Consider the following exchange during the interview of a person
suspected of killing his girlfriend:
Q: "Did you have an argument with Julie this evening?"
R:"We really got along well and rarely had any disagreements."
Not only did the suspect evade the investigator's question, but by
using the qualifier "rarely", the suspect is acknowledging having
previous arguments with the victim. Cutting through the word games,
the suspect's response indicates that he probably did have an
argument with the victim on the night of her death.
There are dozens of words that qualify a response. Examples include
not exactly, usually, may, perhaps, kind of, typically, often and
occasionally. The investigator must remember that the suspect
included the qualifying language within the response to avoid
telling a lie. To ascertain the underlying truth often requires a
follow-up question phrased with the qualifier in mind, e.g., "So,
you have had some disagreements. Did you have a disagreement with
Julie this evening?"
Consider the following exchange during an interview with a suspect
accused of sexually touching his niece, Sally:
Q: "Did you have sexual contact with Sally?"
A: "I am not a child molester. I have never molested Sally!"
During the suspect's response he leans forward in the chair,
emphasizes his denial with a hand gesture and exhibits direct eye
contact. The proper inference in 90% of cases would be that because
of the suspect's apparent confidence, he is probably telling the
truth. However, the investigator must consider the possibility that
the suspect is guilty of the offense and has attached his own
meaning to the words "child molester".
When a suspect uses a legal or descriptive word within a response,
especially when the investigator did not use that word when asking
the question, the suspect should be asked to define the descriptive
word. Often a deceptive suspect will give an exaggerated definition
of the word, as the following example illustrates:
Follow-up: "Define for me what a child molester is."
Response: "Well, that's someone who forces kids to engage in
The allegation against the suspect did not involve forcing the
victim in any way. Nor did it involve engaging in perverted sex with
the victim. It is typical of a deceptive suspect to offer an
exaggerated definition of the crime he committed. An innocent
suspect, on the other hand, will offer an accurate definition of the
crime, e.g., "A child molester is any adult who has sexual contact
with a child."
During our advanced seminar we sometimes show the interview of a
suspect accused of sexual contact with a 16 year-old girl. The girl
claimed that the suspect leaned over, kissed her and placed his hand
on her breast. She then explained that he moved his hand down from
her breast and under the top of her jeans. This was the exchange at
the outset of the interview:
Question: "What is (victim) saying that you did to her?"
Response: "It is my understanding that she said I kissed her,
fondled her breast and put my hands down the front of her pants,
which is completely ridiculous."
The victim, of course, never claimed that the suspect put his hands
down the front of her pants - only a single hand. By exaggerating
the victim's claims, he was able to truthfully deny (his version of)
the victim's allegation.
When a suspect exaggerates the allegations against him, the
investigator should correct the suspect's description of the
accusation, and, if appropriate, re-ask the suspect if he committed
the actual offense, e.g., "What she is saying is that you moved your
hand from her breast to under the top of her jeans. Did you do
There is a good reason why courts to not accept hearsay evidence -
it is a common deceptive ploy to imply personal knowledge of
something when, in fact, none exists. Consider that a witness to an
apparent battery offers the following description: "This guy got out
of the car, punched the protester and left the young man bleeding on
the ground. It was terrible. The thug drove away like a coward."
A person who has convinced himself that something actually did or
did not happen can offer a very convincing account by omitting the
ownership statement, "I saw." The person has left the door open to
always claim, "Well, this is what other people said happened". In
the suspect's mind his statement is truthful. Whenever a statement
lacks an ownership phrase such as "I heard", "I saw" or, "I read"
always ask, "How do you know this?"
In the above example, if the investigator were to pursue this
further, the "witness" may recant ownership of his statement,
acknowledging that he never actually saw the battery. Examples of
phrases that recant ownership are:
"This is what I was told."
"I wasn't speaking as an (eye witness, scientist, doctor, etc.)
"I was just relaying my understanding of what happened."
A guilty suspect knows exactly what he did, or did not do during the
commission of his crime. Consider an employee who smoked marijuana
in the parking lot on breaks during work hours. To avoid lying to
the investigator's question, the employee may deny only a portion of
the question. For example:
Q: "Did you use any marijuana during work hours?"
R "I never smoked any dope in the building during work hours!"
Because specific denials are truthful statements, they can mislead
an investigator into believing a guilty person. An investigator
needs to listen very literally to what a suspect is saying within
his response, in particular, listening for what the suspect is not
Descriptive vs. Non-descriptive terms
No one wants to buy a "used car", but potential buyers flock to a
lot that sells "previously owned vehicles." Racetracks or casinos do
not represent themselves as a place to gamble; they are institutions
to "place wagers." Politicians are not "pro-abortion" they are
"pro-choice." Certain words have negative connotations, and
therefore we avoid using them when describing our own behaviors or
Similarly, a suspect who has had sexual contact with a child does
not like to think of himself as a child molester; the suspect who
has killed his wife does not like to think of himself as a murderer.
Consequently, suspects guilty of a crime may use non-descriptive
language when referring to the crime or the accusation, as the
following examples illustrate:
Q: "What is your understanding of the purpose for the interview with
R: "Some lady's saying that I did something to her over the
weekend." [The suspect is accused of raping a woman Saturday night]
Q: "Why do you think I've asked to talk to you?"
R: "I imagine it has to do with the incident at work last night."
[The suspect's employer was robbed last night]
In casual conversation we tend to be passive listeners - our goal is
to learn information and we accept what the other person says at
face value. A criminal investigator needs to learn to listen
actively and assess not only what the other person is saying, but
also assess the credibility of the other person's statement. Part of
this involves recognizing common verbal tactics that are used to
avoid lying or to reduce feelings of guilt. While the tactics
presented in this web tip are not exhaustive, they do illustrate how
deceptive suspects manipulate a listener through their choice of
words. The tactics also reveal the importance of listening literally
to what another person says to fully understand the import of their
Credit and Permission Statement: This Investigator Tip was developed
by John E. Reid and Associates Inc. Permission is hereby granted to
those who wish to share or copy the article. For additional 'tips'
select 'Educational Information' and 'Investigator Tip'. Inquiries
regarding Investigator Tips should be directed to Janet Finnerty
For more information regarding Reid seminars and training products,
contact John E. Reid and Associates, Inc. at 800-255-5747 or
Val Van Brocklin
Switching the freight train's tracks
If I needed any more evidence that social media has
pervaded every crevice of our lives, I got it in recent
The Social Network
- The movie, released last year. As of January 12, 2011
it had won Best Picture from all leading trophy groups:
National Board of Review, New York Film Critics Circle,
Los Angeles Film Critics Association and National
Society of Film Critics and was the odds on favorite for
the Golden Globe and Oscar.
Mark Zuckerberg - Facebook's founder and CEO became TIME
Person of the Year.
Mark Zuckerberg - same as above, became the youngest
Facebook hit 500 million users. That would make it the
3rd largest nation - behind China and India and well
ahead of the U.S.
Social media has now closed the parentheses on our
romantic lives. After getting started with eHarmony or
Match.com we deal with a bad break up with sites like
IHateMyEx.com or YouBrokeUpHow.com.
There's even a web site and new book to help us deal
with our digital afterlife.
For the sake of disclosure, I need to confess I don't do
social media. I have no Facebook, Youtube, MySpace,
Twitter, Flickr, Photobucket, LinkedIn, Digg, Ning or
Yelp page. (And that's just the Top 10 of the Top 50
Social Media Resources. Web link below.) Nor have I
accepted any invitation to become someone's "friend."
I don't consider myself a Luddite. I'm just not that
social. I'm also not that trusting. I don't trust other
users to employ the same precautions I think are common
sense and I don't trust hackers or the security against
them. Finally, I don't have enough free time as it is.
That said, I understand that trying to ignore social
media is like trying to ignore a freight train while
walking the tracks. I also understand I now have to
address social media in preparing officers to testify
Are you ready to face ALL your internet postings on
I write about and train on winning courtroom testimony
for law enforcement officers. In my training I often ask
What is the first thing you should do to start preparing
for your courtroom appearance in a particular case?
Commonly, the answer is,
Review my report.
I then advise officers to start
that and be thinking about testifying
they write their report. This will raise their
awareness. It will have them more vigilant about how the
defense might misconstrue, misrepresent or otherwise use
something in their report against them and thereby help
them avoid some common but avoidable mistakes.
Now I need to take officers a GIANT step back even
before they are writing their report. Instead, officers
need to be thinking about their courtroom appearance,
and their "favorite" criminal defense (or civil
plaintiff's) attorney each and every time they post
anything on social media.
"The Officer Who Posted Too Much on MySpace"
clearly hadn't done that. Officer Vaughan Ettienne
arrested Gary Waters for felony possession of a 9mm
Beretta and a bagful of ammunition. Waters also ended up
being charged with the misdemeanor of resisting arrest.
The case went to trial in State Supreme Court in
Brooklyn and rested, in large part, on Officer
Waters claimed that Officer Ettienne and his partner
stopped him, beat him, and then planted a gun on him to
justify the beating. When the case started, the defense
was going to focus on Officer Ettienne's use of steroids
(with a doctor's prescription) and argue it could have
caused an irrational rage. Then the defense got a gift
that kept on giving - Officer Ettienne's own postings on
The day before trial Ettienne posted a description of
his mood on a MySpace account as
Besides this, jurors learned that a few weeks before
trial, the officer posted on his Facebook page:
Vaughan is watching 'Training Day' to brush up on proper
was a movie starring Denzel Washington as a rogue
narcotics detective who doesn't hesitate to break the
law in his own war on drugs.
Then the defense discovered comments Officer Ettienne
made on the internet about video clips of arrests.
An officer should not have punched a handcuffed man,
Ettienne wrote, adding,
"If he wanted to tune him up, he should have delayed
"If you were going to hit a cuffed suspect, at least get
your money's worth 'cause now he's going to get
disciplined for" a relatively light punch.
While convicted of the misdemeanor charge, Waters was
acquitted of the felony. (He was on parole from a
burglary conviction when he was arrested.)
How many of you can imagine yourself or an officer you
know engaging in such talk as locker room bravado?
As Officer Ettienne commented after the trial,
You have your Internet persona, and you have what you
actually do on the street. What you say on the Internet
is all bravado talk, like what you say in a locker room.
The problem is, unlike a locker room, what's said on the
Internet exists in cyberspace and is available for
subpoena. Officer Ettienne now curbs his tongue. Let us
all learn from his experience. As he acknowledged,
It paints a picture of a person who could be overly
aggressive. You put that together, it's reasonable doubt
in anybody's mind.
And what kind of doubt might it be in a civil use of
Do you know your online reputation?
What kind of picture have you painted of yourself
online? You may be as surprised as the woman who checked
herself out on her Twitter lists feature and discovered
a porn star had included her on a list and another user
listed her under
people I've seen naked
- a surprise because she had never met the person. (Web
link below to PC World article.)
Now that you're thinking about facing all
online postings - and possibly the postings of others
about you - on cross examination in a criminal case or
civil lawsuit, stay tuned to next month's PT 2 of
Facebook & Courtroom Credibility
when we'll look at:
How defense attorneys and their investigators can pierce
your online postings even if they're privacy protected.
Discovering and protecting your online reputation.
How jurors may be
you during trial.
Getting the prosecutor involved.
In the meantime, just think of anything you post online
as a sandwich board you wear into court.
Sgt. Betsy Brantner Smith
Yes, This Issue Affects Men and Women
The reality of being a woman in this
profession is that you have to take your gear off every time you
go to the bathroom. This can be an officer safety issue, a
convenience issue and even a health issue. Very often, women
will not wear their belt keepers (or forget to put them back on)
because it is such an inconvenience to take them on and off
multiple times during the shift. Belt keepers are essential for
separating your tools and providing a stable platform for
They are essential to your officer survival!
Women tend to wait too long to relieve themselves, causing
bladder or kidney infections, and during menstruation, pregnancy
(yes, cops get pregnant) or other “special” times, they need to
go to the bathroom more frequently. (One of the best products on
the market for female cops is something called “QuickPants;”
check out http://www.quickpants.com) Women also can’t pull over
and take care of business “outdoorsman style,” using a bush,
tree or ditch.
Guys also have special concerns, such as
having their back to the door if they’re using a urinal, another
officer safety issue (guys, use the stall, it’s safer!). Both
sexes may have issues with bad food, stomach flu or other
gastrointestinal ailments that we just can’t anticipate; know
your patrol area and where the “safe” facilities are located.
Help Each Other Out.
Cops need to watch each other’s backs, and
bathroom issues are no exception. If your buddy has been
standing on a perimeter post for three hours, offer him a bottle
of water and a ten minute break to hit the men’s room at the gas
station. If your female partner has been on surveillance for
half the night, offer to take the primary “eye ball” and give
her a quick bathroom break. If you have innovative suggestions
or an informative story, let us know. We’re all here to help
each other, even behind closed doors. Stay safe!
Sgt. Betsy Brantner Smith
Sergeant Betsy Brantner Smith is a 29-year veteran of a large
Chicago suburban police department and has held positions in
patrol, investigations, narcotics, juvenile, crime prevention,
hostage negotiation and field training.
Betsy served as a host and content expert for the Law
Enforcement Television Network (LETN) from 1999 – 2003. A
graduate of the Northwestern University Center for Public
Safety’s School of Staff and Command, she writes for numerous
law enforcement and government publications and has been an
instructor for the Calibre Press “Street Survival” seminar since
2003. Together with her husband, Dave “JD Buck Savage” Smith,
she trains law enforcement personnel throughout the United
States and Canada.
U.S. SUPREME COURT
A CONVICTED PRISONER MAY NOT BE IN CUSTODY FOR MIRANDA PURPOSES
Howes v. Fields
by Jack Ryan, Attorney
Howes v. Fields, the United States Supreme Court
examined a case where a federal trial court and the United States
Court of Appeals for the 6th Circuit concluded that a convicted
prisoner, while in prison and moved from the general population to
an interview room, was “in custody” for
Miranda purposes.[i] The United States Supreme Court
reversed the lower courts holding that there is no per se rule that
a person who is in prison is automatically in custody for purposes
Miranda warnings before questioning on a crime unrelated
to their incarceration.
While serving a sentence in a Michigan jail,
Randall Fields was escorted by a corrections officer to a conference
room where two sheriff's deputies questioned him about allegations
that, before he came to prison, he had engaged in sexual conduct
with a 12-year-old boy. In order to get to the conference room,
Fields had to go down one floor and pass through a locked door that
separated two sections of the facility. Fields arrived at the
conference room between 7 p.m. and 9 p.m. and was questioned for
between five and seven hours.
Fields was never given
Miranda warnings and during the course of the
questioning, Fields made admissions. He was subsequently charged and
convicted. The admissions he made during the questioning were
allowed at his trial. He argued that the admissions should not have
been allowed because he was “in custody” and therefore should have
Miranda warnings. When the Michigan courts concluded
that he was not in custody for
Miranda purposes and upheld his conviction, Fields
turned to the federal courts for post-conviction relief. The federal
district court agreed with Fields as did the United States Court of
Appeals for the 6th Circuit. Those courts determined that Fields was
in custody and therefore should have been given
Miranda warnings. The
state appealed the Court of Appeals decision to the United States
The United States Supreme Court concluded that a
person who is in prison following a conviction is not necessarily in
Miranda purposes. The Court outlined some of the factors
surrounding the questioning of Fields as follows:
At the beginning of the interview, Fields was
told that he was free to leave and return to his cell. Later, he was
again told that he could leave whenever he wanted. The two
interviewing deputies were armed during the interview, but Fields
remained free of handcuffs and other restraints. The door to the
conference room was sometimes open and sometimes shut.
About halfway through the interview, after Fields
had been confronted with the allegations of abuse, he became
agitated and began to yell. Fields testified that one of the
deputies, using an expletive, told him to sit down and said that "if
[he] didn't want to cooperate, [he] could leave." Fields eventually
confessed to engaging in sex acts with the boy. According to Fields'
testimony at a suppression hearing, he said several times during the
interview that he no longer wanted to talk to the deputies, but he
did not ask to go back to his cell prior to the end of the
When he was eventually ready to leave, he had to
wait an additional 20 minutes or so because a corrections officer
had to be summoned to escort him back to his cell, and he did not
return to his cell until well after the hour when he generally
retired. At no time was Fields given
Miranda warnings or advised that he did not have to
speak with the deputies. [cites omitted]
In overturning the lower court, the Court
In this case, it is abundantly clear that our
precedents do not clearly establish the categorical rule on which
the Court of Appeals relied,
i.e., that the questioning of a prisoner is always
custodial when the prisoner is removed from the general prison
population and questioned about events that occurred outside the
prison. On the contrary, we have repeatedly declined to adopt any
categorical rule with respect to whether the questioning of a prison
inmate is custodial…
Most recently, in
Maryland v. Shatzer, we expressly declined to adopt a
bright-line rule for determining the applicability of
Miranda in prisons.
Shatzer considered whether a break in custody ends the
presumption of involuntariness established in
Edwards v. Arizona, and, if so, whether a prisoner's
return to the general prison population after a custodial
interrogation constitutes a break in
Miranda custody. In considering the latter question, we
noted first that "[w]e have
never decided whether incarceration constitutes custody
Miranda purposes, and have indeed explicitly declined to
address the issue." The answer to this question, we noted, would "depen[d]
upon whether [incarceration] exerts the coercive pressure that
Miranda was designed to
guard against--the `danger of coercion [that] results from the
interaction of custody and official interrogation… In
sum, our decisions do not clearly establish that a prisoner is
always in custody for purposes of
Miranda whenever a prisoner is isolated from the general
prison population and questioned about conduct outside the prison.
The Court clearly rejected the argument that
prisoner is automatically entitled to
Miranda warnings because they are in custody in the
technical sense. Instead, the analysis is whether they are in the
coercive environment that the
Miranda warnings are intended to overcome. To make this
determination one must consider the facts surrounding the
questioning itself and determine whether it is the coercive
environment that makes
Miranda warnings necessary.
The Court provided an in-depth analysis of how
one determines custody for
Miranda purposes which should be reviewed by any law
enforcement officer who may interview a suspect. The court wrote:
As used in our
Miranda case law, "custody" is a term of art that
specifies circumstances that are thought generally to present a
serious danger of coercion. In determining whether a person is in
custody in this sense, the initial step is to ascertain whether, in
light of "the objective circumstances of the interrogation," a
"reasonable person [would] have felt he or she was not at liberty to
terminate the interrogation and leave." And in order to determine
how a suspect would have "gauge[d]" his "freedom of movement,"
courts must examine "all of the circumstances surrounding the
interrogation." Relevant factors include the location of the
questioning, statements made during the interview, the presence or
absence of physical restraints during the questioning, and the
release of the interviewee at the end of the questioning…
Determining whether an individual's freedom of
movement was curtailed, however, is simply the first step in the
analysis, not the last. Not all restraints on freedom of movement
amount to custody for purposes of
Miranda. We have "decline[d] to accord talismanic power"
to the freedom-of-movement inquiry, and have instead asked the
additional question whether the relevant environment presents the
same inherently coercive pressures as the type of station house
questioning at issue in
Miranda. "Our cases make clear . . . that the
freedom-of-movement test identifies only a necessary and not a
sufficient condition for
Miranda custody… This
important point is illustrated by our decision in
Berkemer v. McCarty, In that case, we held that the
roadside questioning of a motorist who was pulled over in a routine
traffic stop did not constitute custodial interrogation. We
acknowledged that "a traffic stop significantly curtails the
`freedom of action' of the driver and the passengers," and that it
is generally "a crime either to ignore a policeman's signal to stop
one's car or, once having stopped, to drive away without
permission…. "[F]ew motorists," we noted, "would feel free either to
disobey a directive to pull over or to leave the scene of a traffic
stop without being told they might do so. Nevertheless, we held that
a person detained as a result of a traffic stop is not in
Miranda custody because such detention does not
"sufficiently impair [the detained person's] free exercise of his
privilege against self-incrimination to require that he be warned of
his constitutional rights." As we later put it, the "temporary and
relatively nonthreatening detention involved in a traffic stop or
Terry stop does not constitute
The Court made clear that “imprisonment alone is
not enough to create a custodial situation within the meaning of
Miranda.” The Court
There are at least three strong grounds for this
conclusion. First, questioning a person who is already serving a
prison term does not generally involve the shock that very often
accompanies arrest. In the paradigmatic
Miranda situation--a person is arrested in his home or
on the street and whisked to a police station for
questioning--detention represents a sharp and ominous change, and
the shock may give rise to coercive pressures. A person who is "cut
off from his normal life and companions," and abruptly transported
from the street into a "police-dominated atmosphere," may feel
coerced into answering questions.
By contrast, when a person who is already serving
a term of imprisonment is questioned, there is usually no such
change. "Interrogated suspects who have previously been convicted of
crime live in prison…. For a person serving a term of incarceration,
we reasoned in
Shatzer, the ordinary restrictions of prison life, while
no doubt unpleasant, are expected and familiar and thus do not
involve the same "inherently compelling pressures" that are often
present when a suspect is yanked from familiar surroundings in the
outside world and subjected to interrogation in a police station…
Second, a prisoner, unlike a person who has not
been sentenced to a term of incarceration, is unlikely to be lured
into speaking by a longing for prompt release. When a person is
arrested and taken to a station house for interrogation, the person
who is questioned may be pressured to speak by the hope that, after
doing so, he will be allowed to leave and go home. On the other
hand, when a prisoner is questioned, he knows that when the
questioning ceases, he will remain under confinement…
Third, a prisoner, unlike a person who has not
been convicted and sentenced, knows that the law enforcement
officers who question him probably lack the authority to affect the
duration of his sentence. And "where the possibility of parole
exists," the interrogating officers probably also lack the power to
bring about an early release.
Ibid. "When the suspect has no reason to think that the
listeners have official power over him, it should not be assumed
that his words are motivated by the reaction he expects from his
listeners." Under such circumstances, there is little "basis for the
assumption that a suspect . . . will feel compelled to speak by the
fear of reprisal for remaining silent or in the hope of [a] more
lenient treatment should he confess."
In short, standard conditions of confinement and
associated restrictions on freedom will not necessarily implicate
the same interests that the Court sought to protect when it afforded
special safeguards to persons subjected to custodial interrogation.
Thus, service of a term of imprisonment, without more, is not enough
Miranda custody. [cites omitted]
The Court also rejected the lower court’s
reasoning that taking the prisoner to a private office converted the
interview into a custodial situation. The Court noted:
Taking a prisoner aside for questioning--as
opposed to questioning the prisoner in the presence of fellow
inmates--does not necessarily convert a "noncustodial situation . .
. to one in which
Miranda applies When a person who is not serving a
prison term is questioned, isolation may contribute to a coercive
atmosphere by preventing family members, friends, and others who may
be sympathetic from providing either advice or emotional support.
And without any such assistance, the person who is questioned may
feel overwhelming pressure to speak and to refrain from asking that
the interview be terminated.
By contrast, questioning a prisoner in private
does not generally remove the prisoner from a supportive atmosphere.
Fellow inmates are by no means necessarily friends. On the contrary,
they may be hostile and, for a variety of reasons, may react
negatively to what the questioning reveals. In the present case, for
example, would respondent have felt more at ease if he had been
questioned in the presence of other inmates about the sexual abuse
of an adolescent boy? Isolation from the general prison population
is often in the best interest of the interviewee and, in any event,
does not suggest on its own the atmosphere of coercion that
concerned the Court in
In the end the Court concluded that there is no
per se rule that a prisoner who is serving a sentence for an
unrelated crime is in custody for
Miranda purposes when investigators go to the prison or
jail to question the subject. As such, a prisoner may not be
Miranda warnings. Instead officers must look to the
factors surrounding the interview to determine whether warnings are
Part one of determining custody: Custody Factors that the Court
outlined in this case:
The location of the questioning, statements made during the
interview, the presence or absence of physical restraints during the
questioning, and the release of the interviewee at the end of the
Part two of determining custody:
Whether the relevant environment presents the same inherently
coercive pressures as the type of station house questioning at issue
Note: This case makes clear that custody for
purposes is not the same as a seizure under the
The Court makes clear that custody is not determined by a freedom of
movement test. Instead officers must look at the above factors and
determine whether the environment is coercive to the degree that a
reasonable person would not feel they had any choice to end the
interrogation and walk away.
Court holdings can vary significantly between jurisdictions. As
such, it is advisable to seek the advice of a local prosecutor or
legal adviser regarding questions on specific cases. This article is
not intended to constitute legal advice on a specific case.
[i] Howes v. Fields, Slip Op. No. 10-680, 2012
U.S. LEXIS 1077 (2012).
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