On Deliberately Undermining Miranda

4/20/2024

Thanks to all for the lively discussion on Patterson below.

Phil makes a very important point in the comments which went unappreciated, it seems.

The relevant precedent for this type of police conduct is Missouri v. Seibert, 542 U.S. 600, 616 (2004). There, police elicited an unwarned confession, recited the warnings, then asked the defendant to merely repeat what he had said before the warning, as if nothing had changed. The plurality wrote: "At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings." This was a 4-justice plurality, but there is no Supreme Court case since, and therefore Seibert's plurality is thought to be close-to-binding on lower courts by those who study criminal procedure. Techniques that objectively evidence an intent to evade the protections of Miranda are themselves violations of Miranda.

The conduct in this case seems to fit squarely in this category. The fictitious distinction between "suspect" and "accused" was designed to dupe the defendant into thinking that warnings were not yet needed, since he was merely a "suspect," and not yet before a judge. Of course, all lawyers should know that the Miranda guarantees attach long before a defendant is in court.

What happened here violated Miranda/Seibert, and therefore violated Article 31 a fortiori. After all, the military has long bragged that Article 31 is broader than Miranda in its protections.

Police are allowed to use deception, and even to lie to suspects (unlike in Europe), but they cannot lie about the nature of the rights regarding self-incrimination. "There is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable rights or as to whether the waiver really is a waiver of those rights." § 6.9(c) Conduct of the police, 2 Crim. Proc. § 6.9(c) (4th ed.)

Update: "in Europe" refers to the PEACE_method_of_interrogation.

PEACE-A-Different-Approach. (The article notes that "The P.E.A.C.E Framework has evolved and since been adopted by numerous Police forces and agencies worldwide including the United Kingdom, Canada, Hong Kong, Australia, New Zealand, Singapore, Malaysia, United Arab Emirates and the Republic of Ireland.")

Six Helpful Articles on the PEACE Method.

Provocatively, this piece suggests that "[T]he Reid model resulted in a false confession rate of 50% compared to 0% with the PEACE model."

Trial Counsel

4/20/2024 23:21:57

Incorrect. There is indeed a difference between being accused and suspected. Article 31(b) makes the distinction:

"(b) No person subject to this chapter may interrogate, or request any
statement from, an accused OR a person suspected of an offense
without first informing him of the nature of the accusation and
advising him that he does not have to make any statement regarding
the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a
trial by court-martial." (emphasis added)

To be a suspect is a very low standard requiring only "mere suspicion." See U.S. v. Schneider, 14 MJ 189 (CMA 1982) ("This is a higher degree of certainty than the mere suspicion which triggers the obligation to inform the suspect of his Article 31/Tempia rights.")

By contrast, to be accused, a person needs to have preferred charges sworn to by an accuser. Cf. R.C.M. 307 ("In accordance with R.C.M. 307(b), preferral is the act by which a person subject to the UCMJ formally accuses another person subject to the UCMJ of an offense. Any person subject to the UCMJ
may prefer charges")

I stand by my earlier analysis that the distinction that the NCIS agent made here was not "dubious" at all but rather legally correct.

4/22/2024 11:04:46

The fiction here is the one the agents put forward by invoking the word of a judge. Being a suspect and being under suspicion: is there a genuine distinction? The cases cited here are suggesting that it isn't splitting hairs at all to ask. And if all we have to go on to distinguish the two is a judge's believing an Ltc over a Cpt, then I will give the Panel my graditude.

Trial Counsel

4/22/2024 15:32:24

Not sure what you're getting at. The agent told the accused that being a suspect means "I think you had something to do with it" and "you may have knowledge of the crime." He then contrasted that with being formally accused of something, which is done before a judge. From the opinion:

"After informing Appellant that he was suspected of indecent viewing, visual recording, and broadcasting, the lead agent asked him if he knew 'the difference between being suspected of doing something and being accused of something.' Appellant responded with 'if you're suspected then you're suspected.' The lead agent then explained:

[S]uspected of something means like 'hey we need to talk to this person because they might have some kind of knowledge about it.' Being in the military, **if I think you have anything to do with this**, I have to advise you of your rights. Okay. That's why I'm advising you of your rights. Uh. **Because I want to know something you may have knowledge of.** (emphasis added)
. . .

Accused of something is when you're actually sitting in front of the judge and the judge is saying that you did this okay. So, if me and you are at the bar, you know, having some drinks and [John] falls down and starts bleeding and he points in our general direction and he says, "That guy stabbed me." Right? The police are going to want to talk to us because we might know something about [John] being stabbed without saying that we stabbed him. It's saying that we might have some kind of knowledge of what happened.

. . .

I don't want you to think that we are accusing you of anything. We're just here to find out some information."

As I said before, I'm not really sure what the "fiction" is here at all. The agent told the accused that to be suspected means a person might have had something to do with it and/or might have information about the crimes. It doesn't mean that the person is accused of something since he is not in front of a military judge.

In other words, under the UCMJ, the agents are the ones who label the Sailor the "suspect" whereas the accuser labels the Sailor the "accused" before preferring charges. That is legally correct. Clever parsing by the agent? Sure, but nothing illegal or even untruthful about what he said.

Gov Paralegal

4/22/2024 17:07:23

Whether it was dubious or not doesn't matter. I'd agree your average accused doesn't grasp the legal distinction between being suspected or accused, but that's not what the court is saying:

"And, more importantly, the plain language of Article 31(b) requires informing an accused or suspect of the "accusation" irrespective of whether "he is accused or suspected." The agent's departure from the statute's mandates—especially his explicit statement that he was not accusing Appellant of anything—rendered the rights advisement inadequate and Appellant's subsequent statements inadmissible in accordance with Article 31(d)."

Thr NMCCA is concluding the agent is accusing them of a crime under these facts.

4/23/2024 13:24:04

TC,
I get dizzy just reading your description of the case. Not insulting you, and I believe you are sincere. But I don't give the NCIS agent the same courtesy. It's a dialog that went squirrelly if there ever was. Law enforcement, by your own description, said that the Judge is the accusser. That's crazy. And I don't know where they told this person "You are a suspect." if they ever did.

This looks like one of those Government due process discussions.

Trial Counsel

4/23/2024 13:34:04

The opinion says they informed him he was a suspect: "After informing Appellant that he was suspected of indecent viewing, visual recording, and broadcasting . . . ."

Anon

4/22/2024 19:46:14

TC: it is a distinction, but it is an IRRELEVANT distinction for the purposes of giving the warnings, yet the agent implied that it was RELEVANT. That is the lie. He was implying that being a "suspect" means "what you say will NOT be used against you." We are dealing with an unsophisticated actor, yet you are parsing the language of a statute.

Cloudesley Shovell

4/23/2024 09:10:49

Do you want a legal system that rewards gamesmanship and sharp practices, or do you want a legal system that sets high standards for government actors, and enforces them?

People and systems respond to incentives. If you reward sharp practice in the obvious "slam dunk" cases, then you'll get more sharp practice and boundary-pushing in every case. Pretty soon silly things like warrants and rights warnings become the exception rather than the rule. Funny how that happens.

Kind regards,
CS

Trial Counsel

4/23/2024 13:43:59

I think a lot of defense counsel on here wanted the agent to say something like: "You are hereby a suspect and accused. That means I think you did it. If you agree to make a statement, that will be really damning against you in court.."

I'm joking, but the serious point is that there's a line somewhere, and it depends on where you want to draw it. In my view, law enforcement should be allowed to go up to the very edge of the line as long as they don't cross it. They do that by complying with the literal word of the statute as long as they don't obfuscate it. It is a highly fact dependent inquiry, but in this case, I really don't think the line was crossed here.

I've seen things like, "This doesn't mean you're guilty, but we have to read your rights, so here they are." When an accused says things like, "Should I get a lawyer," I've seen agents say, "If you do that, we can't talk to you today."

Clearly a tactic intended to get the accused to waive his rights, and also clearly legally correct (i.e. he is innocent until proven guilty in court).

Based on a lot of the responses here, it seems like these tactics would also be criticized. Again, I see no violation of due process.

Tami a/k/a Princess Leia

4/23/2024 22:37:42

Trial Counsel,

You appear to be missing the forest by focusing solely on one tree. "Totality of the circumstances" involves the entire forest, not one tree. The agent was wrong because, in making the distinction between "accused" and "suspected," by telling Patterson that he was not "accused" because he wasn't in front of a judge, and this piece of paper wasn't "scary," not a "big deal" (I'm paraphrasing), and the agents just "wanted information."

That "I just want information" is misleading, because the agents would just want information from a witness as well as a suspect, but they don't have to advise a mere "witness" of their rights. Not only was this misleading, this was completely unwarranted because agents should know better. And IF they are correctly trained in the law, they do know better. If they are not correctly trained in the law, then that's a huge problem. And this was a custodial interrogation, with Patterson having no "real world" criminal experience. How can you enforce the law when you don't follow it yourself?

Watch this scene form 21 Jump Street, I know this is a comedy movie, but the teaching point is well taken. How do you not know the words for a proper rights advisement? https://www.youtube.com/watch?v=T45aF1NLMyM

Literally all you have to do is read the words on the form, no ad-libbing.

Agents do not want their suspects to invoke their rights, and they don't want their suspects to have attorneys during interrogations. I've seen agents double down and talk over suspects during rights advisements, especially when they start asking questions about their right to a lawyer. "Can I get a lawyer now?" "You can get one after you're done talking to us, yeah you can just go to TDS afterwards." But wait, the suspect is being held in pretrial confinement and can't "just go to TDS." And the agents misled the suspect into thinking he could only get a lawyer AFTER his interrogation. Fortunately, in this particular instance, that interrogation actually favored the accused's case, and he was acquitted of the charged offense.

Defense counsel are reacting the way they are because, in their considerable experience, the NMCCA decision was legally correct and a vindication of an important constitutional right. The 4th amendment has pretty much been eroded to nothing because of lawyer-made up exceptions that gut it. We don't want to see the same thing happen with the 5th Amendment.

I encourage you to re-read the opinion. If you still can't see the due process violation (and remember, it's the Government's burden to prove no violation, the defense doesn't have the burden), then consider getting some corrective work done on your eyes.

4/23/2024 14:21:25

If you never tell the only person you investigate that he/she is a suspect, that he/she is a suspect, you never have to tell a court why he/she was the only person that you investigated.

Looks kinda due processy to me.
But I digress.

In the UK..

4/23/2024 15:52:20

I am not sure what Europe does is an apt comparison since remaining silent can and will be used against an accused in the UK…. It would make sense their warnings are more robust. But in America, since silence cannot be a negative inference, I think it is an apple to an orange.

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