"The Constitution Does Not Protect a Suspect From Himself or His Mother":
The U.S. Court of Appeals for the Sixth Circuit ruled 7-6, en banc, in Van Hook v. Anderson, that a criminal suspect who has invoked his constitutional right to counsel may reinitiate communication with police through a trusted third-party. Judge McKeague's opinion for the majority summarizes
Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona. The suspect asks for a lawyer. Under Edwards v. Arizona, all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect “himself” initiates a discussion. Later, police talk to the suspect’s mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards.In the case at hand, the police claim they were told by the suspect's mother that he wanted to talk to police after all, despite his earlier request for a lawyer. The police asked the suspect if this was the case and, after re-Mirandizing him, obtained his confession to a grisly murder.
Judges Cole, Merritt and Martin each authored a dissent. Judge Cole's begins:
The Court today adopts the position that law enforcement officers may renew contact with criminal suspects upon learning from third parties that the suspects are willing to waive their previously invoked right to counsel. In so holding, the majority concludes that neither reason nor established case law require suspects—who, by definition, are in jail surrounded at all times by law-enforcement personnel—to directly communicate to police their wish to waive their previously invoked constitutional rights. The Supreme Court has instructed us that we must view custodial waivers of rights with a high degree of suspicion. In my view, we must be doubly skeptical of a waiver of rights effected through the backdoor of a purported third-party agent, especially when all the suspect has to do is proclaim to the nearest guard, “I want to talk.”
Sure, not coercive at all. After thinking about this for much of the day, I think I agree with the dissent too: if the suspect really wanted to talk to the police, he could have initiated the conversation.
It seems to me that that it is too easy for unscrupulous police to bend the Edwards rule.
Gosh, I better go to bed. Readers may start to think my evil liberal twin has taken over my postings.
"...that's what the "War on Drugs", UIGEA, etc. are for."
[rimshot]
So, since we think the police commit perjury we will simply not allow this form of waiver?
Why would we allow incriminating statements under ANY circumstances, then? If the police are inherently untrustworthy about who has waived their right to counsel, why wouldn't they just question the suspect directly without reading his Miranda rights and then falsely claim he did waive them? That would seem a lot simpler, and more likely to succeed (their word against a guy who may have committed murder, etc.) than lying about the statements of a perfectly innocent third party such as a suspect's mom.
In fact, if we assume they will lie, it would make more sense to say the suspect initiated this, as it would make the hearing on the issue simpler than involving a third party. So the fact that they said the mother told them actually is evidence that they were not lying.
I also think it is significant that they re-Mirandized the guy and he waived his rights then.
In fact, if we assume they will lie, it would make more sense to say the suspect initiated this, as it would make the hearing on the issue simpler than involving a third party. So the fact that they said the mother told them actually is evidence that they were not lying.
I also think it is significant that they re-Mirandized the guy and he waived his rights then.
The law works by analogy -- is case X more or less like case Y? That's why the "slippery slope" that EV writes about is so relevant. "Bright line" rules prevent this creeping down the slope that happens as successive judicial opinions analogize to a precedent.
The en banc decision seems to be contrary to Edwards, though I have little confidence that this SCOTUS won't step back from its own holding.
That assumes the only type of police misconduct possible is outright lying. What if the police put pressure on the guy's mother, and the guy's mother eventually gives in and falsely tells the police the guy wants to confess because she wants to keep him out of trouble?
Also, lying about the suspect himself means falsely claiming they read Miranda warnings or falsely claiming the suspect spoke after the warning, or similar. These are much harder to paint as innocent misunderstandings than lying about what the relative said; if the police lie about what the relative said, they could claim that they just misunderstood or misinterpreted the relative.
well, you tell us: if that did happen, and the police didn't lie about what happened, what WOULD be the result vis-a-vis the statement the police obtained?
Probably because Miranda is complete B.S. If we want a Miranda-type culture, there's an easy way to do it: a Constitutional Amendment. It's that, or saying that every arrest for hundreds of years up until Miranda was decided was unconstitutional.
Police officer: "ma'am your son has "lawyered up" and we can't do anything for him. The time for him to help himself is now. If this goes on he's looking at "X" charges for "X" number of years. We'll do what we can for him if he co-operates, but if he won't talk to us we can't get his side of the story." Now Ma'am, why don't you go in and see your boy."
Mom: "Son, you need to tell the police the truth. The truth will set you free. Will you straighten up and talk to the police?"
It's true that this scenario still requires the police to lie, but again, it's a lie that the police can easily get away with. If the police lie about whether a suspect confessed, the suspect can say "the police are lying. I never said that." Lying about a subjective matter (whether the police were putting undue pressure on the guy's mother) or lying about the police's own state of mind (i.e. lying about the purpose for which the police questioned the mother) is much harder to contradict.
Your scenario is perfectly fine under previous law as well. The only difference is if after Momma talks to him, he personally tells the police he wants to talk or tells Momma to tell the police he wants to talk. So how is there any more protection?
I agree with the other posters who say if the police are going to lie, they're going to lie. And lie much more easily about the big issues of whether he lawyered up in the first place or whether he initiated the conversation than to come up with an easily rebutted story involving poor old Momma.
"Talk to your son; see if he will help us." Does that transform the mother into a police agent if she does? I would argue that it does.
In a scenario of, "I talked to my son and I told him to talk to you," as a spontaneous remark from the mother, without the previous quote or something similar, I would argue the mother is not a police agent.
Of course, there are many variants in between. If the purpose of Miranda truly is to deter police misconduct, I would prefer the police be given a bright-line rule easy for the police, and easy for the courts, to follow.
I mean, either we're all hardy, well-informed, stable, self-controlled, and reasonable under duress (and the police's tactics therefore don't matter, and Miranda is unnecessary,) or the police have a high enough probability of success in (and motivation to try) coercion that hard and fast rules are necessary.
I'm not even sure why a suspect is allowed to change his mind about talking, after he asks for a lawyer but before the lawyer shows up. It'd be cleaner (and avoid all variations on the weeping mother scenario) to simply not allow such waivers at all, rather than what we seem to have now (whatever the USSC has said in regards to "view[ing] custodial waivers of rights with a high degree of suspicion.")
But the story about Momma *isn't* easily rebutted. It's easily rebutted if the story is "she said he wanted to confess" and she didn't really say anything at all, but that's not how this sort of lie will work.
In practice the police will think "maybe if we make the guy's mother nervous enough we can get her to say something that'll give us an excuse to question the guy". They'll then put a lot of pressure on the mother, and she'll eventually say something that the police can use, or can intentionally misinterpret in order to use. The police must still lie about their own motives, and might have to lie about whether they intentionally misinterpreted the mother, but this kind of lie is a much easier kind of lie to cover up than the direct lie that someone confessed when he really didn't.
Probably because Miranda is complete B.S. If we want a Miranda-type culture, there's an easy way to do it: a Constitutional Amendment. It's that, or saying that every arrest for hundreds of years up until Miranda was decided was unconstitutional.
The proposition that Miranda has become part of our culture is not mine. It was Chief Justice Rehnquist who said in Dickerson v. United States, and I thought everyone here would know that. Here's what he wrote in his majority opinion:
"We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."