Time: Sun Aug 31 22:23:32 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id WAA24072; Sun, 31 Aug 1997 22:17:07 -0700 (MST) by usr01.primenet.com (8.8.5/8.8.5) with SMTP id WAA10770; Sun, 31 Aug 1997 22:16:20 -0700 (MST) Date: Sun, 31 Aug 1997 22:16:20 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Intentional Violations of Miranda: A Strategy for Liability By FBI Agent... (fwd) <snip> > >[Note from Matthew Gaylor: This FBI Agent explains in detail the not well >known (Outside of Law enforcement) interrogation strategy of not >Mirandizing a suspect. The theory is that parts or all of the testimony >may NOT be thrown out by a court. Miranda rights as defined by the US >Supreme Court seem to be ignored in this ploy by law enforcement to get >suspects to talk. If you ever end up under the bright lights of an >interrogation lamp- Just keep your month shut and ask for your lawyer. If >the FBI were truly interested in enforcing the laws of the United States, >they might start by investigating to determine by what extent law >enforcement engages in a conspiracy to circumvent the law. > >Excerpted FBI Law Enforcement Bulletin August, 1997 > >http://www.fbi.gov/leb/aug976.htm] > > > >Intentional Violations of Miranda: A Strategy for Liability By Kimberly A. >Crawford, J.D. > >Intentional Miranda violations may jeopardize cases and expose >investigators and agencies to civil suits. > >Special Agent Crawford is a legal instructor at the FBI Academy. > >Over three decades ago, in Miranda v. Arizona,1 the United States Supreme >Court held that custodial interrogations create a psychologically >compelling atmosphere that countermands the Fifth Amendment protection >against compelled self- incrimination.2 Accordingly, the Court developed >the now-familiar Miranda warnings as a means of reducing the compulsion >attendant in custodial interrogations. > >In the years that followed, the Court handed down numerous rulings >purported to clarify and refine the Miranda decision.3 The practical result >of these rulings is that there now exists a complex legal maze that >investigators must negotiate when attempting to interrogate custodial >subjects. Occasionally, investigators fail, either accidentally or >intentionally, to negotiate the maze properly. > >Accidental failures to negotiate the Miranda maze have resulted in the >suppression of evidence in subsequent criminal cases,4 but generally have >not resulted in any successful civil suits against law enforcement officers >or agencies.5 However, civil suits alleging intentional failures may have >considerably greater potential for success in the courts.6 > >This article reviews the cases that, by limiting the legal consequences of >Miranda violations, may have encouraged some law enforcement officers to >develop interrogation strategies that incorporate intentional violations of >the Miranda rule. The article also examines the potential civil liability >for following such strategies. > >Limitations on the Effects of Miranda Violations > >The Supreme Court has recognized that Miranda warnings are not >constitutionally mandated.7 Rather, the warnings are a protective measure >designed to safeguard the Fifth Amendment right against compelled >self-incrimination. Consequently, violations of the Miranda rule do not >carry with them the same force and effect as a constitutional violation. >Statements obtained in violation of Miranda have a variety of lawful uses. > >For example, in Michigan v. Tucker,8 the Supreme Court held that a Miranda >violation that resulted in the identification of a witness did not preclude >the government from calling that witness to testify at trial. The witness >in question was named in an alibi provided by the defendant during an >interrogation session that followed an incomplete advice of rights.9 When >contacted by the police, the witness not only failed to corroborate the >defendant's alibi but also provided additional damaging information. The >defendant subsequently sought to have the witness' testimony excluded at >trial on the grounds that the identity of the witness was discovered as a >result of the violation of Miranda. The Supreme Court, however, concluded >that although statements taken without benefit of full Miranda warnings >generally could not be admitted at trial, some acceptable uses of those >statements exist.10 Identification of witnesses is one such acceptable use. > >In Oregon v. Elstad,11 the Supreme Court similarly held that a second >statement obtained from a custodial suspect following one taken in >violation of Miranda is not necessarily a fruit of the poisonous tree and >may be used at trial. In Elstad, the defendant made incriminating >statements during an interrogation that was later determined to contravene >Miranda. The defendant repeated those statements and gave a detailed >confession during a later interrogation session conducted in full >compliance with Miranda. The defense subsequently argued that because the >"cat was let out of the bag" during the initial unlawful interrogation, the >statement provided during the later interrogation was tainted by the >original illegality and, therefore, inadmissible. In rejecting this >argument, the Supreme Court found that the goals of Miranda were satisfied >by the suppression of the unwarned statement and that "no further purpose >is served by imputing 'taint' to subsequent statements"12 lawfully >obtained. > >Finally, in Harris v. New York13 and Oregon v. Hass,14 the Supreme Court >concluded that statements taken in violation of Miranda may be used for >impeachment purposes. In both cases, defendants had given statements that >could not be used in the government's case in chief because of technical >violations of Miranda. In order to preclude defendants from falsifying >testimony with impunity, however, the Court held that the tainted >statements could be used to impeach the defendants when they testified >inconsistently at trial. > >A Strategy of Intentional Violations > >These limitations on the effects of Miranda have encouraged some law >enforcement officers to conclude that they have "little to lose and perhaps >something to gain"15 by disregarding the Miranda rule. When custodial >suspects invoke their Miranda right to counsel, officers know they cannot >lawfully continue to interrogate those suspects until defense attorneys are >present.16 Recognizing that the chances of obtaining incriminating >information from counseled suspects are relatively remote, some law >enforcement officers may choose to ignore invocations of the right to >counsel and continue to interrogate suspects with the intention of gaining >witness information or impeachment material. At the very least, officers >may continue questioning in an effort to "let the cat out of the bag" with >the hope of gaining admissible statements at a later date. > >The Potential for Civil Liability > >Although interrogation strategies that ignore invocations of Miranda rights >clearly defy the mandates of the Supreme Court, until recently, courts had >not presented any compelling legal reasons to avoid the technique. The >variety of uses for statements taken in violation of Miranda made the >technique advantageous in criminal prosecutions, and there was no precedent >for holding law enforcement offi-cers or departments civilly liable for the >intentional violation of Miranda rights. > >In the past, officers sued in federal court pursuant to Title 42 United >States Code (U.S.C.) 1983, or the cause of action created in Bivens v. Six >Unknown Federal Narcotics Agents,17 could easily defend claims of liability >based on alleged violations of Miranda. Both Section 1983 and Bivens >actions require that plaintiffs prove that law enforcement officers >deprived claimants of their federal constitutional or statutory rights. >Because the Supreme Court has characterized the Miranda protections as >prophylactic and not prescribed by either the Constitution or federal >statute, virtually every court of appeals that has confronted the issue has >held that no actionable civil liability claim results from a violation of >those protections.18 > >The unanimous fashion with which the appellate courts have handled civil >suits against law enforcement officers alleging failures to comply with >Miranda has one notable exception. In Cooper v. Dupnik,19 the United States >Court of Appeals for the Ninth Circuit held that intentional violations of >Miranda may result in law enforcement officers' being held personally >liable for depriving individuals of either their Fifth Amendment protection >against compelled self-incrimination or the constitutional guarantee of due >process. > >Liability Under Self-Incrimination Clause > >In Cooper, local law enforcement officers in the Tucson, Arizona, area >formed a task force to investigate a series of rapes, robberies, and >kidnappings. Officers suspected that one person was responsible for the >vast majority of the offenses under investigation and dubbed the unknown >suspect the "Prime Time Rapist." Even before a suspect was identified, the >task force formed an interrogation strategy and selected the officer who >would carry it out. > >The planned interrogation strategy called for a full advice of rights prior >to interrogation, but in the event of a Miranda invocation, interrogation >would continue until a confession was obtained. Although the framers of the >strategy knew any confession generated by this approach would be >inadmissible in the government's case in chief, they hoped to get >impeachment material that would inhibit the defendant from taking the stand >and claiming his innocence or pursuing an insanity defense. > >When Michael Cooper was mistakenly identified as a suspect in the case, he >was arrested, advised of his rights, and, in accordance with the preplanned >strategy, questioned at length, despite numerous invocations of the rights >to silence and counsel. When the interrogation yielded no significant >results and the mistakes leading to his identification as a suspect >surfaced, Cooper was released from custody and never prosecuted. > >Cooper subsequently filed a Section 1983 action against several of the law >enforcement officers involved in his arrest and interrogation, alleging >numerous violations of his constitutional rights.20 After a hearing on the >motions for summary judgment filed by the defendants, the district court >dismissed a majority of Cooper's claims. The claims that survived centered >around the in-tentional violation of Cooper's Miranda rights. > >On appeal, the defense advanced the time-tested argument that the Miranda >safeguards are not constitutionally mandated and, therefore, cannot support >a claim under Section 1983. The court of appeals initially agreed with this >argument and dismissed Cooper's remaining claims.21 However, after securing >a rehearing by the entire panel of the appellate court, Cooper was >successful in having his Miranda claims reinstated. > >The court's reinstatement of Cooper's Miranda claims was based largely on >the intentional nature of the violations and the coerciveness of the >interrogation that followed. The court found that the blatant refusal to >honor Cooper's asserted rights generated a feeling of helplessness in >Cooper that was exacerbated by the hours of "harsh and unrelenting"22 >questioning that followed. According to the court, the result of this >psychological gamesmanship was that Cooper was compelled to make statements >to the interrogators.23 Although these statements were never used against >Cooper, the court found that the Fifth Amendment protection against >self-incrimination that underlies Miranda had been in-fringed by the mere >fact that Cooper was coerced into making involuntary statements during the >custodial interrogation. > >The court in Cooper made clear that it was not creating a cause of action >for technical violations of Miranda.24 "Where police officers continue to >talk to a suspect after he asserts his rights and where they do so in a >benign way, without coer-cion or tactics that compel him to speak,"25 no >successful Section 1983 action should result. However, the court made it >equally clear that intentional violations of Miranda would be viewed as a >factor in determining whether "coercion or tactics" compelled custodial >subjects to speak. > >Under this analysis, an officer might conclude that only those intentional >violations that contribute to the procuring of involuntary statements are >actionable under Section 1983. However, such a reading of the court's >decision in Cooper is misleading since the court also offered an >alternative basis for liability. > >Liability Under Due Process Clause > >The door that was left open under the Fifth Amendment self-incrimination >analysis in Cooper was thereafter closed when the court considered the due >process implications of intentional violations of Miranda. Although never >raised by Cooper, the court gratuitously addressed the issue of whether the >intentional disregard for the Supreme Court rule in Miranda shocked the >conscience of the court and, thus, constituted a violation of the due >process protection. In Rochin v. California,26 the Supreme Court considered >the lawfulness of a highly intrusive, warrantless search of an individual. >In condemning the action, the Court held that the search "offended those >canons of decency and fairness which express the notions of justice of >English-speaking peoples even toward those charged with the most heinous >offenses"27 and "shocked the conscience of the court."28 Since Rochin, the >measure for determining violations of the Fifth Amendment guarantee of due >process has been whether government action "shocks the conscience of the >court." > >Applying this standard of review to the facts in Cooper, the court >concluded that the intentional nature of the Miranda violation contributed >greatly to its finding that the government conduct was shocking to the >conscience. Particularly offensive to the court was the government's stated >purpose of obtaining a statement that would keep Cooper from testifying on >his own behalf or asserting the insanity defense. According to the court, >"It is proper to anticipate defenses and to work vigorously to meet them. >But when the methods chosen to gather such evidence and information are >deliberately unlawful and flout the Constitution, the legitimacy is >lost."29 The court's finding that the intentional violation of Miranda >violated Cooper's right to due process may have a far greater impact on law >enforcement interrogation practices than its holding that the protection >against compelled self-incrimination was infringed. As previously noted, >the court's finding of a self-incrimination infraction resulted from the >intentional violation being combined with coercive interrogation to produce >a compelled statement. Under the court's due process analysis, however, >Section 1983 liability for government conduct deemed shocking to the >conscience could be based solely on a preplanned strategy to violate >Miranda intentionally even though no coercive interrogation took place. > >Conclusion > >Although Cooper is the only federal court of appeals decision thus far to >hold that intentional violations of Miranda give rise to a civil claim >under Section 1983, law enforcement officers should be aware that the >precedent has been set. This precedent was subsequently followed in >California Attorneys for Criminal Justice v. Butts,30 when the district >court relied on the decision in Cooper to hold that an alleged policy to >disregard invocations of Miranda rights could support a claim under Section >1983. > >Because the argument that intentional violations of Miranda contravene the >protections of the Constitution has met with success in these cases, it is >likely that plaintiffs will raise the same argument in other courts. >Although other appellate courts may refuse to adopt the rationale advanced >in Cooper, law enforcement officers should weigh carefully the possibility >of civil suit and consult with a departmental legal advisor prior to >implementing any interrogation strategies that call for intentional Miranda >violations. > >Endnotes >1 384 U.S. 436 (1966). >2 The Fifth Amendment to the U.S. Constitution provides in pertinent part >that "no person...shall be compelled in any criminal case to be a witness >against himself...." 3 See, e.g., Michigan v. Mosley, 423 U.S. 96 (1975) >(interpreting the invocation of the right to silence); Edwards v. Arizona, >451 U.S. 477 (1981) (interpreting the invocation of the right to counsel); >Minnick v. Mississippi, 111 S. Ct. 486 (1990) (further interpreting the >invocation of the right to counsel); Davis v. United States, 114 S. Ct. >2350 (1994) (determining the clarity necessary for an invocation of the >right to counsel). 4 Miranda, 384 U.S. at 479 (evidence obtained in >violation of Miranda is generally inadmissible). >5 See Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st. Cir. >1995) "Every court of appeals which has spoken to this matter in similar >circumstances has held that no Section 1983 claim lay." Id. at 17. >6 See Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992) (en banc), and >California Attorneys for Criminal Justice, et al., v. Butts, 922 F. Supp. >327 (C.D. Calif. 1990). 7 Michigan v. Tucker, 417 U.S. 433 (1974). 8 Ibid. >9 The interrogation in Tucker preceded the Court's decision in Miranda. The >defendant was advised of his right to silence and counsel but was not told >of the availability of appointed counsel. >10 The Court stated that although Tucker was able to block the admission of >his own statement, it did not "believe that it requires the prosecution to >refrain from all use of those statements. 417 U.S. at 452. >11 105 S. Ct. 1285 (1985). >12 Id. at 1298. >13 401 U.S. 222 (1971). >14 420 U.S. 714 (1975). >15 Id. at 723. >16 See Minnick v. Mississippi, 111 S. Ct. 486 (1990). 17 102 S.Ct. 2727 >(1982). > >18 See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14 >(1st Cir. 1995) and cases cited therein. >19 963 F.2d 1220 (9th Cir. 1992) (en banc). 20 Cooper claimed a denial of >his right to counsel and silence, false arrest, false imprisonment, >improper training and procedures, injury to reputation and property >interest, invasion of privacy, illegal search and seizure, and conspiracy. >21 924 F.2d 1520 (9th Cir. 1991). >22 963 F.2d at 1243. >23 Cooper never retreated from his claims of innocence but did make some >statements that may have been slightly damaging had the criminal case gone >to trial. 24 963 F.2d at 1243-44. >25 Id. >26 342 U.S. 165 (1952). >27 Id. at 169. >28 Ibid. >29 963 F.2d at 1250. >30 922 F. Supp. 327 (C.D. Calif. 1996). >Law enforcement officers of other than federal jurisdiction who are >interested in this article should consult their legal advisors. Some police >procedures ruled permissible under federal constitutional law are of >questionable legality under state law or are not permitted at all. > <snip> ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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