As a criminal defense attorney in Fort Lauderdale, FL, I oftentimes receive inquiries regarding Miranda warnings. The general theme of this article will highlight the key factors that the Court should consider when determining whether the police should have read the suspect (defendant) his/her Miranda warnings and whether a suspect’s (or defendant’s) waiver of Miranda should be considered voluntary or involuntary.
More specifically, this article will delve into: (1) What is a typical Miranda warning sound like?; (2) When are the police required to read a suspect (or defendant) their Miranda warnings?; (3) When is a suspect (or defendant) considered “in police custody?”; (4) What factors should the Court consider when determining whether a suspect is in custody for the purposes of Miranda?; (5) Can the police “force” a suspect (or defendant) to waive his/her Miranda rights?; (6) Must the police immediately read a suspect (or defendant) their Miranda warnings if they are in custody?; (7) What factors should the Court consider when determining if a suspect’s (defendant’s) confession was knowing, intelligent and voluntary?; (8) Can the defense present an expert on false confessions at trial?
Frequently, defense attorneys file Motions asking the Court not to permit the jury to hear their client’s confession arguing that the client did not knowingly, voluntarily, or intelligently waive their Miranda rights. As nothing is more damaging than a defendant’s confession, criminal cases can hinge on the admissibility of this evidence. For the most part, defense attorneys file these Motions either in situations where their client voluntarily goes to the police station seemingly as a witness (not a suspect) and is confronted by the police with accusations of a crime or when a Juvenile or individual with a diminished mental capacity provides an incriminating statement to the police after “voluntarily” waiving his/her Miranda rights.
In my experience as a former Assistant State Attorney and after reviewing relevant case law, Judges are very hesitant to “throw out” a defendant’s confession, especially in serious cases. For years, the police have used questionable tactics (i.e. two-step interrogations) to coerce individuals to provide incriminating statement(s) regarding their criminal involvement knowing that the Courts will interpret any ambiguity and credibility issues in their favor. I have witnessed numerous examples where the police delay reading a suspect (defendant) their Miranda warnings to the “very last second” – usually after the suspect has been waiting (handcuffed) in a small room for hours (raising their anxiety level) and/or after the police show the suspect (defendant) evidence of crime and insisting the suspect (defendant) is guilty before commencing questioning.
Up until the recently, the case law (at least in Florida) typically affirmed the trial Courts’ decisions to permit these types of incriminating statements into evidence, absent the most egregious police conduct. For example, in McIntosh v. State, 37 So.3d 914 (Fla. 3rd D.C.A., 2010), the Third District Court found that despite the contention that the (juvenile) defendant was mentally retarded and incapable of understanding the Miranda warnings, his confession to first degree murder was properly admitted by the trial Court into evidence.
In a win for criminal defendants, the recent landmark case of Ross v. State, 45 So.3d 403 (Fla. 2010) finally provides defense attorneys with a Florida Supreme Court case where the Court reversed a murder conviction as a result of the admission of a defendant’s statement at trial after the police used improper and deliberate tactics delaying the administration of Miranda. The Florida Supreme Court found that the defendant did not voluntarily waive his Miranda rights and that his post-warning confession was not voluntary.
Hopefully Ross will swing the pendulum the opposite direction and finally prevent the State from running roughshod over defendant’s rights where the police use improper and deliberate tactics to coerce statements from the most susceptible individuals such as juveniles or individuals with diminished mental capacities.
What does a typical Miranda warning sound like?
Although the actual words may vary slightly depending on the law enforcement agency, the warning’s meaning should remain the same. Here is a sample Miranda warning:
- You have the right to remain silent.
- Anything you say can and will be used against you in a court of law.
- You have the right to talk to a lawyer and have him or her present with you while you are being asked questions if you wish.
- If you cannot afford to hire a lawyer, one will be appointed to represent you if you wish.
- You can decide at any time to exercise these rights and not answer any questions or make any statements.
- Do you understand these rights as I have explained them to you?
When are the police required to read a suspect their Miranda Warnings?
The police are required to read a suspect their Miranda Warnings in situations where:
- The suspect (defendant) is in police custody (or in a custodial interrogation); and
- The police questioning is designed to elicit a testimonial response from the suspect (defendant). Basic background questions such as the defendant’s name, date of birth, and social security number are not considered questions designed to elicit a testimonial response.
What is considered “in police custody?”
In order for a Court to conclude that a suspect (defendant) was “in custody,” for purposes of Miranda, it must be evident that, under the totality of the circumstances, a reasonable person in the suspect’s (defendant’s) position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect (defendant) would not feel free to leave or to terminate the encounter with the police.
What factors should the Court consider when determining whether a suspect is in custody for the purposes of Miranda?
- The manner in which the police summon the suspect for questioning (i.e. under false pretense);
- The purpose, place, and manner of the interrogation (i.e. whether the suspect is seated in an small room at the police station or at his/her residence, how many detectives are present at the place of the interrogation, the length of questioning, etc.) (In certain circumstances, it is possible for a suspect to be in custody, despite the fact that the interrogation occurred in his own home. Wolliston v. State, 961 So.2d 1141 (Fla. 4th DCA, 2007);
- The extent to which the suspect is confronted with evidence of his/her guilt (i.e. clothing found at the crime scene, fingerprints, etc.); and
- Whether the suspect is informed that he/she is free to leave the place of questioning.
Ramirez v. State, 739 So.2d 568 (Fla.1999) is the case commonly cited laying out the applicable factors.
Can the police “force” a suspect to waive his/her Miranda rights?
It is the State’s burden to show that the confession, made after Miranda warnings have been provided, was not compelled and made was voluntarily. The Courts define voluntary in the sense that (the confession) “was the product of free and deliberate choice rather than intimidation, coercion, or deception.” Additionally, the suspect’s (defendant’s) waiver must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a Court properly conclude that a suspect (defendant) waived his/her Miranda rights. Please be aware that although the Court’s will typically show great deference to the police (especially when weighing the credibility of the police vs. the suspect/defendant) the State bears the burden of demonstrating that the defendant knowingly and intelligently waived his/her privilege against self-incrimination and the right to counsel.
Must the police immediately read a suspect their Miranda warnings if they are in custody?
No. The police must only read a suspect their Miranda warnings if [the suspect/defendant] is in custody and [the police] plan to interrogate the [suspect/defendant]. It is not uncommon for defense attorneys to file Motions in situations where the police delay the administration of a suspect’s (defendant’s) Miranda warnings because the police feel that (1) the suspect is not in custody or (2) their questions are not designed to elicit a testimonial response. In situations where the police delay the administration of Miranda warnings, the Courts will look to the totality of the circumstances, relying on the following factors to determine whether the statement(s) should be deemed admissible at trial:
- Whether the police used improper and deliberate tactics in delaying the administration of the warnings in order to obtain an initial statement;
- Whether the police minimized and downplayed the significance of the Miranda rights once they were given;
- The circumstances surrounding the warned and unwarned statements including the completeness and details of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the interrogatories, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.
Courts have routinely found that when law enforcement inserts Miranda warnings in the midst of coordinated and continuing interrogation they are likely to mislead and deprive a suspect/defendant of knowledge essential to his/her ability to understand the nature of his rights and the consequences of abandoning them. The police should also not remind the suspect about his earlier admissions before continuing their post-warning interrogation. In fact, Justice Kennedy has posited that the police should consider providing the suspect/defendant with an additional warning that explains the likely inadmissibility of his/her pre-warning custodial statement
That being said, The United State Supreme Court did hold that the failure to administer Miranda warnings before eliciting a confession does not necessarily render any subsequently warned statement inadmissible and that the admissibility of such statement still turns on whether the subsequent waiver is voluntarily, knowingly, and intelligently waived. Absent deliberate coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion [as to the later statement.] The Court must examine the entire course of police conduct with respect to the suspect in evaluating the voluntariness of the statement. The Court should also place great weight in whether the police “deliberately engaged in coercive or improper tactics” in obtaining the initial statements.Oregon v. Elstad, 470 U.S. 298 (1985).
For example, in Ramirez v. State, 739 So.2d 568 (Fla.1999), the Court “threw out” the defendant’s confession after the defense showed that the police used numerous coercive tactics to obtain a statement from Ramirez, a seventeen year old suspect, including, delaying the administration of Miranda warnings until after Ramirez made a statement, minimizing the significance of the Miranda warnings, telling Ramirez that they were not arresting him, not permitting him to contact his parents before questioning, and not securing a written waiver of Miranda until after Ramirez had fully confessed to his involvement in the crime.
Similarly in Ross, the Court focused on whether the tactics used in the interrogation were a deliberate attempt to wear down [Ross’] resolve and produce a confession, as opposed to a good-faith mistake, and whether the manner of questioning before the detective read Ross his Miranda rights and the length of time that the highly accusatorial questioning lasted was deliberate.
Other Courts have held that “after law enforcement detains a suspect and subjects him/her to interrogation, “there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed” unless the interrogator wants to weaken the warning’s effectiveness.
What factors should the Court consider when determining if a suspect’s (defendant’s) confession was knowing, intelligent and voluntary?
Some of the factors the Court should consider to determine if the defendant’s waiver was knowing and voluntary include the defendant’s:
- Language Proficiency;
- Experience in the Criminal Justice System;
- Intelligence Level;
- Mental Illness, if any;
- Withdrawal from drugs;
- Whether the police used isolation techniques to increase anxiety;
- Whether the police escalated the pressure exerted on the suspect and the suspect’s anxiety (i.e. isolation);
- Whether the police exaggerated the evidence;
- Whether the police provided information about the crime scene, including pictures and physical evidence;
- Whether the police gave the suspect justification why he/she should confess, such as closure;
- Whether the police challenged the suspect’s memory.
For an example of when the Court held that a defendant did not knowingly waive his right to remain silent see T.S.D. v. State, 741 So.2d 1142 (Fla. 3rd D.C.A., 1999) (Twelve year old juvenile did not knowingly waive right to remain silent and right to counsel during questioning although juvenile had prior exposure to the criminal justice system, where neither party’s expert testified that the juvenile grasped the concept that his Miranda rights included the right to have an attorney present during questioning, Juvenile had a history of psychological problems, had an IQ of 62, read at third grade level, and Miranda rights were written at sixth or seventh grade level.)
Can the defense present an expert on false confessions at trial?
The defense can present an expert on false confessions to show that the suspect’s confession was coerced and unreliable. For example, in Dawson v. State, 20 So.3d 1016 (Fla. 4th D.C.A., 2009), the Court held that the testimony of a psychological expert regarding a youth’s susceptibility to suggestion when being interviewed by three detectives was relevant to the weight to be accorded the defendant’s confession. A confession, which is the product of a confused mind or lack of mental capacity, presents an issue of credibility for the jury to determine (i.e. to determine the weight of the confession). A defendant is entitled to present to the jury evidence pertaining to the circumstances under which the confession was made. The defendant’s diminished mental capacity may be relevant to whether the defendant voluntarily waived his/her Miranda rights.
Although Ross is a significant case (especially for juvenile and diminished mental capacity defendants), I suspect the Courts will bend over backwards looking for reasons to distinguish the facts from Ross in cases involving serious crime. As such, if you or a family member has been arrested in a case where incriminating statements were provided, either with or without Miranda warnings, it is important to contact an experienced criminal defense attorney familiar with Miranda warnings.
Criminal defense lawyer Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida. Fort Lauderdale criminal defense attorney Philip M. Snyder handles all criminal defense matters including, drug cases, domestic violence, and assault and battery. The Fort Lauderdale criminal defense law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316. Telephone: 954.462.8035. http://www.lyonssnyder.com/