May 28, 2019

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Walking the Miranda Tightrope

Gordon Graham
Category: Law Enforcement

Gordon Graham here with Today’s Tip from Lexipol. Today’s Tip is for law enforcement.

You’ve already given an appropriate Miranda warning. The suspect says he understands. Then he says something about an attorney. What now?

Today’s tip is for law enforcement officers. I want to talk about walking the tightrope. What do you do when a suspect makes vague references to an attorney during an interrogation?   

don’t often talk about case law in Today’s Tips. It constantly changes. It can vary drastically between jurisdictions. But today I’m going to be talking a little bit about Miranda. In very general terms.  

Imagine you’re conducting an interview with an in-custody suspect. You’ve already given an appropriate Miranda warning. The suspect says he understands. He waives his rights and agrees to talk to you. He answers several questionsIn the middle of a sentence, he stops. He says something about an attorney. Maybe he says, “I don’t need an attorney, do I?” Maybe he says, “Any idea when my attorney will be here?” Or he says, “Will I be assigned an attorney?” Or something like that. 

If you ask me, these don’t seem like unequivocal statements that he wants an attorney. Or that he wants to stop the interview. But it’s not my opinion that matters here. The judge will decide laterAnd it’s going to depend on the specific facts and the law where you are 

What should you do? I can’t really say. But you have some options. And none are without risk.  

You could ask clarifying questionsExplain the rights again. Make sure that the suspect still understands. And that he still wants to talk with you. After your helpful reminder, the suspect may decide that he does not want to talk after allIf he does that, you won’t be getting any confession.  

You could ignore the questions and continue with the interview. He might make some incriminating statements. He might give a full written confession. Like I said. If I was the judge, I would allow the confession to come in. But there’s a chance that the real judge would disagree. This could be embarrassing for you and your department. 

Right now.  And long before your next interrogation. Educate yourself on the law in your jurisdiction. Ask your department’s legal counsel. Ask the prosecutor. Make plans about what you will do when this happens to you. And the minute a suspect mentions an attorney at all, you should start seeing red flagsThat will be your cue to thoroughly consider the facts of the situation, your understanding of the law, and make the best decision.

And that’s Today’s Tip from Lexipol. Gordon Graham signing off. 

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