Archive for the ‘Confessions’ Category

On this latest Miranda thing…

Monday, April 22nd, 2013

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper

Saturday, March 26th, 2011

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, (more…)

Right for the Wrong Reasons: Why terrorists and enemy combatants don’t belong in civilian criminal courts

Friday, December 17th, 2010

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to the acquittal of Ahmed Ghaliani — the first Guantanamo detainee to be tried in civilian court — of more than 280 charges stemming from the bombings of U.S. embassies in Africa.

The Obama administration is fighting against it, with AG Holder writing a (fairly lame, in our eyes) letter insisting that we absolutely must use civilian courts to deal with terrorists and captured combatants.  Essentially, his argument is that civilian courts are a tool that has worked before, so why deny that tool to the executive branch and make it fight the bad guys with one hand tied behind its back?

Ignore the ham-handed attempt to co-opt a common complaint about the left’s frequent insistence on soldiers doing actual fighting with one hand tied behind their backs, lest they rile someone’s sensibilities.  It’s a dumb argument.  Guantanamo detainees didn’t commit crimes within the territorial jurisdiction of the United States.  Their acts are acts of war, or of transnational combat that is more like war than anything else.

Congress is gearing up to do the right thing, but for the wrong reason.  The principle should not be “we can’t do this because we might lose in court” — that’s not even a principle.  It’s just a weakling’s worry.  The principle should be “we can’t do this because it’s wrong.”

First off, soldiers are (more…)

Something to Consider Before Speaking to Law Enforcement

Friday, November 12th, 2010

That is all.

Why Innocent People Confess — Update

Friday, October 8th, 2010

Last month, we wrote a piece here on reasons why innocent people wind up confessing to crimes they didn’t commit.  It’s a horrible thought, yet it happens far too often.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

Anyway, there’s a good article in the latest issue of New York Magazine called “I Did It: Why do people confess to crimes they didn’t commit?”  It’s worth a read, so we figured we’d give you all the link.

Temporary Incomprehension

Monday, October 4th, 2010

The blawgosphere was atwitter recently over that Kentucky murder trial where the defendant had confessed, but claimed it was a false confession, due to “sleep-deprived psychosis” from drinking too much coffee.  The jury didn’t buy it (here’s a short article on it).

Did that case remind anyone else of this short film?

Still Life

It’s no secret that sleep deprivation does crazy things to the brain.  Among other things, it dramatically impairs judgment and cognition, and for this reason has for decades been seen as a highly effective interrogation tool by intelligence agencies around the world.  No matter how well trained, most people are simply going to break after a fairly short period of disorientation and sleep deprivation.  Of course, sleep deprivation also results in hallucinations, extreme discomfort, and memory problems — as well as increased suggestibility — making useful interrogation under such circumstances a job requiring the utmost care and attention.  It’s worse than dealing with a young child (as we all know, children are enormously suggestible, so that their statements can be manipulated unwittingly even by one’s body language and tone of voice).  It’s like questioning a child who is stressing from sheer confusion, and who is also in a hypnotic state.  Suffice it to say that the slightest error by the interrogator can produce completely unreliable results, or at best results that must be artfully interpreted to divine what’s more likely to be the truth.

Suffice it also to say that the vast majority of law enforcement officers do not conduct interrogations with such extreme care.  If any do.

So this this defense, in and of itself, isn’t as laughable as (more…)

Why Innocent People Confess

Tuesday, September 14th, 2010

It should come as no surprise to anyone with any experience in criminal law that perfectly innocent people will sometimes confess to crimes they did not commit.  Perhaps they were in a suggestible state, and the police led them to believe they’d done it.  Maybe they were broken by the interrogation and said whatever the cops wanted to hear, just to end it.  Maybe they didn’t really confess, but had their words taken out of context (or invented) by the cops.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

In recent years, there has been growing attention to the phenomenon of false confessions, and folks have begun investigating the reasons why an innocent person will not only confess to a crime he didn’t commit, but will often do so with such detail that it seems impossible for them not to have committed it.  The New York Times had a decent article yesterday on this very phenomenon.  The article reports on a study by UVA (wahoowa!) law professor Brandon Garrett, into reasons why an innocent person may sometimes confess with extraordinary detail.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at (more…)