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April 2012

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in this issue . . .


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 By  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 incriminating himself.

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 interview:

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..."

Qualifying Language

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?"

Unique Definitions

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 perverted sex."

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."

Exaggerated Claims

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 that?"

Recanting Ownership

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."

Specific Denials

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 denying.

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 values.

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 me today?"
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 statements.

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' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

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by 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 weeks.

  • 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 magazine's youngest Person of the Year.

  • Mark Zuckerberg - same as above, became the youngest billionaire.

  • 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 effectively.

Are you ready to face ALL your internet postings on cross examination?

I write about and train on winning courtroom testimony for law enforcement officers. In my training I often ask officers

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 before that and be thinking about testifying while 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 Ettienne's credibility.

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 internet.

The day before trial Ettienne posted a description of his mood on a MySpace account as devious. 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 police procedure.

Training Day 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 handcuffing him."

·         "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 force lawsuit?

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.)

Stay tuned

Now that you're thinking about facing all your 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 backchanneling 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.


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Sgt. Betsy Brantner Smith

Yes, This Issue Affects Men and Women Differently

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 accessing them.

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.

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Howes v. Fields
March 2012
by Jack Ryan, Attorney

In 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 of requiring 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 been given 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 Supreme Court.

The United States Supreme Court concluded that a person who is in prison following a conviction is not necessarily in custody for 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 interview.

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 asserted:

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 for 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. [cites omitted]

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 Miranda custody,"

The Court made clear that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” The Court reasoned:

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 to constitute 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 Miranda.

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 entitled to Miranda warnings. Instead officers must look to the factors surrounding the interview to determine whether warnings are required.

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 questioning,

Part two of determining custody:

·         Whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

Note: This case makes clear that custody for Miranda purposes is not the same as a seizure under the Fourth Amendment. 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.

Note: 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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