Police Deception and the Waiver of Miranda Rights

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Possibly the most highly publicized process in criminal procedure is the reading of Miranda rights to an individual accused of a criminal act.  Surely, if you have seen one of the many cop-dramas that currently are being aired on television, you have witnessed some form of a reenactment of the reading of Miranda rights. 

Miranda rights held by the accused are the right to remain silent, the right to an attorney and to have an attorney present during questioning, as well as an advisement that any statements made going forward can be used against the accused in a court of law.  For the accused to waive their Miranda rights, the law requires the waiver to made in a voluntary, knowing and in an intelligent manner.  Determining whether a valid waiver has been made will depend on all the circumstances surrounding the waiver. 

Among the considerations in finding a waiver to be valid are the mental capacity of the accused to understand the rights being waived, and whether the waiver was made freely and not caused by police coercion.  It is well settled law that actions by police causing the accused to believe that the statements they make will be kept confidential, or won't be used against them, are considered police coercion, and will invalidate a waiver of Miranda rights.

On July 9, 2009, the Maryland Court of Appeals rendered a decision in Lee v. State that essentially permits law enforcement to imply that statements given during an interview will be kept confidential in order to obtain a confession.  In Lee, a criminal Defendant was arrested and charged in connection to a shooting.  The officer, after apprehending the accused, read the Defendant his Miranda rights and obtained a waiver.  Shortly thereafter, the officer began an interview and was asked by the Defendant if the interview was being recorded.  In response, the officer stated that "this is between you and me, bud.  Only me and you are here, right?"  Subsequently, the Defendant admitted to the officer that he had shot the victim in this case.  It wasn't until later that the Defendant learned that he was in fact being recorded, and that his confession would be used to convict him in a court of law. 

In affirming the circuit court's denial of Defendant's motion to suppress the conviction, the Court of Appeals held that Defendant's Miranda waiver was valid because the officer didn't make an express promise of confidentiality.  Many Maryland criminal defense attorneys  believe that the Court is splitting hairs by attempting to distinguish the officer's statements in this case from an express promise of confidentiality.  Most Maryland criminal defense attorneys would argue that any statement by law enforcement that is intended to confuse the accused of the consequences of waiving their Miranda rights should invalidate the initial waiver.  The whole purpose of requiring officers to read the accused their Miranda rights is to make sure that the accused understands that any statement they make can and will be used against them.  Here, the officer's statement that "this is between you and me, bud" is at best an attempt to confuse the Defendant's understanding of the rights he has waived.  At worst, the statement is intended to imply that the Defendant's comments are being kept off the record.  Ultimately, the unfortunate effect of the decision in this case will be to further encourage the use of misleading tactics by the police in order to obtain a confession. 

If you have been charged with a criminal act and need aggressive and thorough criminal defense representation please contact Portner & Shure.


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