Let’s talk about intertwining Miranda warnings with a little bit of small talk.
This question comes from one of my officers in Southern California.
He says: Anthony, let’s talk about substantial compliance with Miranda, because in order to have a valid waiver you have to substantially comply. A student was in a sexual assault investigators class and was told to advise in-custody suspects of the Miranda rights one at a time, and fill in between them with a little bit of small talk.
So for example. Hey Anthony, how are you? Oh that’s great. Hey, you know you’ve got the right to remain silent, right? Okay, awesome. How’s Mom? Glad to hear it. You also know you have the right to have an attorney present before any questioning, you get that right? Cool. Hey, what hobbies do you have?
The officer is asking my opinion of this tactic.
Is it per se prohibited?
The first thing is, I don’t think it’s per se prohibited.
It’s a little unorthodox. I’ve actually never heard of a training class teaching cops to do something like this.
When you have stuff like this, you’re making case law in a sense. The courts have to decide whether it’s lawful.
What I do know is that at the end of the day, the substantial compliance requirement is this: can the officer articulate that the person knew their rights and voluntarily waived them?
Well, when you have a conversation with somebody and you intersperse their rights, and especially when you ask them do you understand this. That is the knowing piece.
So I don’t think it’s going to be per se prohibited. I also know the U.S. Supreme Court is kind of on a glide path of making things a little easier on Miranda, so I don’t think they’d have a per se problem with it either.
Where it could go wrong
But we certainly want to be careful if this tactic comes off as softening up the suspect.
If we can get the training materials into court and show that this officer was taught to use this tactic to soften up the suspect, to overcome a person’s lack of voluntary waiver, clearly that’s going to be bad.
But if the training materials talk about how this builds rapport, how it de-escalates, then I think we have a fighting chance.
So to me, if I were the judge, I would ask the officer: officer, why are you doing this? And if the officer doesn’t have a good reason, then I think we have a problem.
But if the officer says rapport building and de-escalation, your honor, then I can understand that.
One more thing lurking in the background
We’re also talking about sexual assault cases here. No judge I know is going to want to suppress a valid confession from a person who commits heinous crimes like that.
So we have that as well. It’s always lurking in the background.
Anyway, something to keep in mind. I think it’s an interesting question, and hopefully I’ve helped just a little bit. Keep the questions coming, and hopefully I’ve helped you get it right every single time.
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This article is an edited transcript of Roadside Chat Ep. #400. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
