Mike Kenny, attorney, Bauer, Crider, and Parry: Now, this changes a little bit when we’re talking about not adults. When we’re talking about juveniles. I mean, these are very significant rights. And these rights have a very significant consequence on a person’s future, on that person’s liberty. So, we can understand when an officer reads, perhaps, a 16-year-old or 17-year-old his Miranda warnings. You know, that 16 or 17-year-old might not have that same capacity to understand the gravity of where he is, and to understand that hey, he’d better exercise his rights. So, in the state of Florida, what has happened as a sort of protection in juveniles circumstances, is that law enforcement must make an effort before interrogating a juvenile suspect. Must make an effort to contact the parents, and notify the parents of that interrogation or that questioning is going to take place.
B: How is that effort documented?
M: How is it documented? A lot of times it’s documented through the officer writing a report, and saying whether or not he or she attempted that contact. A lot of times, whether they wrote it, or not, in felony cases we’re allowed to subpoena the officer in and have them testify and talk about the whole process. I don’t want to know just about know what crime that the officer’s investigating. I want to know from point A to point B how we got, you know, to my client and how this whole identification of my client as a suspect, and how we began to question my client.
So, you know, that’s one of the first questions that I would ask when it comes time to find out how they questioned him is, “Did you did you attempt to reach the parents?” They don’t have to make contact. They don’t have to get then. They don’t have to wait an inordinate amount of time. What they have to show is they made an effort to reach the parents. Obviously, one of the other things I do is I talk to the parents of my client. And say, “Hey, did anyone try to contact you when he was at school and they were asking questions?” So, you usually get to the answer very quickly. And if the officer demonstrates that he made an effort to reach out, then he may have met that hurdle. That one necessary hurdle to show that our client’s rights were protected.
Now, I will tell you that the failure for the officer to reach out to the parents isn’t an absolute. It doesn’t mean that any statements made must be suppressed. But it tends to show that the officer failed. That he didn’t follow a specific protocol, and he’s got more of a difficult battle trying to establish that our client’s rights were diligently protected. And, even more so, they’re going to have to explain how this sixteen-year-old, who may have waived his rights, was of the capacity to understand the rights, and know that the significance of waving those rights.
The aspect that is to me, that I see often in juvenile cases, and I represent plenty of juvenile clients, and I have plenty of cases pending right now with very similar factual situations, is when the officer is questioning the person, “Is that person in custody, or not?” What I can tell you is, on some cases that I’ve had very recently, what you have is the questioning occurs at school. In Florida there’s a lot of school resource officers and they have an office in the school. And sometimes what will happen is that a detective whose investigating a crime may contact the school resource officer and confirm a particular student is in attendance at that school. And ask that resource officer to reach out and talk to this student. Now, this is important, because how does that happen? How does a school resource officer make contact with a suspect in school? I can tell you what normally happens, what happens in every case probably that I’ve had, is that the school resource officer sends a note to the classroom asking the teacher to send the student to his office.
Now, why is that significant? Well, when a student is sitting in a classroom he can’t just go wherever he wants. He’s got rules he’s got to follow. And when his teacher says, “John Smith, you need to go to officer Smith’s office.” Well, obviously, the question is is he in custody? And my argument is: you bet the is. The student’s got no other choice when he sitting in a classroom where to be. And then when his teacher says, “You go there.” He’s essentially been directed to go into the interrogation room. And that is an instance where I would argue that that person needs to be read his Miranda warnings because he is definitely not free to leave. The student walks up to the school resource officer’s office, and as nice as they may make the setting seem, and as conversational they may make things seem, my argument and my position is once he gets commanded to go to that office ,he is in custody. If this officer is going to ask my client any questions that are designed to elicit a response that may incriminate him, then I’m going say the warnings better have been read. And if they’re not, officer maybe asking questions at the detriment of his case.
The other aspect that is that is crucial here is a lot of times conversations start before a person is fully identified as a suspect. A lot of times, or maybe a brief description about a person who may have been involved, and so, sometimes officers if they don’t have a person fully developed yet. Especially, maybe a schoolyard setting, like we were talking about before, may have a conversation with someone and begin to talk with them. And maybe, during that conversation when the officer’s asking questions the suspect may elicit a response admitting to being present when a crime was committed. Or, admit to being involved in a crime. And at that point, maybe the officer is clued in. “All right, this is the guy. I’ve got my guy. And then the officer reads the Miranda warnings.
Now, there has been a lot of litigation about this particular issue. It’s almost kind of liked to ‘letting the cat out of the bag’. And what used to be a very common practice, with some investigators, is that they would have a person who’s sort of stopped. Not really in custody. And they begin to just have a conversation with that person. Ask that person questions. And that person fully admits to being involved in a crime. At this point, the officer then would read Miranda warnings after the fact. And then afterthe fact, say, “Hey, listen. You just told me you committed this aggravated battery on this person here at school. I’m going to read you your rights. You the right to remain silent. You the right to an attorney. If you can’t afford one, one will be appointed for you. You can exercise these rights at any time.” He would tell them all those things, and then say, “Hey, everything that you just told me, was that true?” And the person would shake his head, “Yeah.” And then the officer would write in his police report, “Client just admitted, post-Miranda, meaning after I read him his warnings, that he was involved in this crime.”
Well, a lot of lawyers in the area said, “Well, this doesn’t make any sense. I mean obviously this guy, once he answers questions before, and he hasn’t been warned, and he said ‘Yes, I am involved in this crime.’” “What’s he going to do? Change his story after the officer reads him his Miranda warnings?”
So, the courts have said that you can’t cure the defect by reading him his rights and getting him to admit again. And you kind of ‘let the cat out of the bag.’ The protections that the Miranda warnings were designed to provide have absolutely no impact when the person’s already admitted. And say we’re not to introduce that admission into evidence; we’re going to introduce the post-Miranda admission in. But what’s the point? What is any reasonable person going to do what he just realizes he admitted to a crime, and the officer Mirandizes him, he’s probably going to say the same thing. “Yeah. I guess I already told you. So, here I am. I guess I’m ‘in for Penny in for a Pound.’”
So, courts have had said that law enforcement needs to be very careful about having this sort of interrogation, and then Mirandizing after, and then asking follow-up questions after that. In most cases, and obviously it’s very factually specific, most cases that would be deemed to be a violation of the Miranda warnings.
So, the reason Miranda warnings are so important, they may not make an arrest go away or charge go away. But they’re so important because a lot of cases the interview of the suspect, or the admission of the client, is a very crucial piece of evidence for the prosecutor.
And that’s why, you know, for my position, I really never see the benefit, and just walking in and answering a whole bunch of questions. I really never see the benefit because if the office’s believe a person committed a crime, and they believe they have probable cause to make the arrest – they’re going to make the arrest whether you say you did it, or you didn’t do it. And all a person walking in there, answering questions, is going to do, is potentially add evidence to the case. And if the case is weak, and the officer doesn’t know whether a crime happened, you walking in there and telling him you didn’t do it, isn’t necessary going to help the case. And potentially, it could lay the groundwork that you said something that isn’t particularly helpful down the line.
So, if the case is weak, they’re not going arrest if they don’t have probable cause. And if the case is strong, they’re going to arrest. So, walking into the lions’ den and answering the questions probably isn’t the best strategy. And, I at least would want to know about what the facts of the case are, and what this officer’s looking for beforehand.
So, the Miranda warnings, as I was talking about, the failure for an officer to read them, may not have the impact that everyone expects. It may not make the crime go away. And in certain crimes it may have absolutely no impact at all. The state may still have enough evidence that they believe that they can prove, beyond a reasonable doubt, that a person committed a crime.
The cure for, if a person answers questions when he’s in custody and he’s interrogated, the cure for that defect is that they keep all the statements out. So, all the evidence is still there they had up to that point, but any statements or admissions would be kept out. So, in some cases it’s crucial. In some cases, those cases like constructive possession cases, or those cases where there really isn’t an identity of a suspect, it’s a major piece of evidence that, you know, prosecutors are going to fight like heck to keep in. And, obviously, I’m going to fight like heck to keep out.
In a nutshell, Miranda warnings stand for the proposition that you the person being questioned have these rights. Although, you’re intimidated, although you have this fear of being investigated by law enforcement, you still have that power to say, “No. I don’t want to answer any questions.” You still have that power to say, “I want my attorney here, by my side.” And if you don’t have the financial means, you have the understanding that even if you don’t have the money to, one will be provided for you. These are pretty crucial rights that a lot of us have heard time, and time again.
It’s not necessarily the words that matter so much, as the act of the person asking the question. Saying, “Hey, listen.” You have this right. You have this power. Officers, oftentimes, don’t want to get to that Miranda portion until they have too, because it does at times have a chilling effect on a conversation. And sometimes, when officers are talking with a person and it’s a freewheeling conversation, and it’s a is a conversation where he’s providing a lot of details and information, officers are kind of loathe to put a chilling effect on that by reading these Miranda warnings. And that’s what it does. It does have a bit of a chilling effect on the interaction. But they have to be very careful. Because if the person is in custody, and they’re asking him questions, they’re going to have to read him Miranda warnings.