Miranda and Statements

Statements to Law Enforcement – A Mistake Many Defendants Live to Regret

November 13, 2022 | By James S. Friedman, LLC

Statements to law enforcement are a routine part of many criminal investigations. The atmosphere in which a statement is taken is pretty grim. A suspect is placed in an interview room which, in itself, is an inherently coercive environment. These rooms are typically small and engender a sense of being cut off and isolated. Most statements are typically taken by at least two law enforcement officers, so the suspect being interviewed will naturally feel outnumbered. Requests by the suspect during the interview to seek advice from others, such as family members, are denied. In New Jersey, statements are typically recorded in video format. This was not always the case – video recordings became part of the interview procedure because of ongoing complaints concerning abusive tactics by officers conducting the questioning.

But it gets worse than this. Many people think that they can handle themselves in the interview room by simply explaining the underlying situation to the officers present without saying anything that will ultimately undermine their position in any resulting case, and that they will then be allowed to simply leave the facility without being arrested. Generally speaking, nothing can be further from the truth. The officers taking the statement are trained to elicit damaging information from the person being questioned. Further, they have probably already interviewed other people involved in the investigation such as purported victims, and know what they are looking for when it comes time to interview subjects or targets. Thus, alone in an unfamiliar environment, outnumbered, and confronted with officers who have been taught to obtain damaging admissions of wrongdoing and already know something about the underlying facts, many people bury themselves without even realizing it. As a New Jersey criminal defense lawyer, I confront these issues regularly.

A defendant’s statement to law enforcement almost always makes it more difficult to defend the case. The solution to the problems that statements create is simple. Don’t give a statement. A suspect in a criminal case does not have to answer questions from investigating officers, and should refuse to speak to the officers conducting the questioning. Although the suspect will almost certainly be arrested and charged, they have done nothing to strengthen the case against them by giving a statement.

State in the Interest of AA – Expanded Miranda Protections for Juveniles in Custody

March 16, 2020 | By James S. Friedman, LLC

Juveniles who have been taken into custody in connection with a criminal charge present special procedural issues. Ideally, a parent or guardian has to be present before the police can question them. Alternatively, the police have to show that they used their best efforts to contact a parent or guardian before any questioning can occur. The purpose of this is so that the parent or guardian can assist the juvenile in making an intelligent and informed decision concerning whether to waive their Miranda rights and respond to questions asked by law enforcement. State v. AA, which our Supreme Court decided in January, 2020, expands the protections afforded juveniles concerning this very sensitive issue.

The two questions before the Court were as follows: Whether law enforcement engaged in the functional equivalent of interrogation when they permitted the juvenile’s mother, who had been called to the police station, to speak with her 15-year-old son who was in custody before the police had read the juvenile his Miranda rights; and Did the fact that AA and his mother had no privacy during their conversation necessitate the adoption of a “private consultation” rule requiring the police to give the juvenile and the adult a meaningful opportunity to speak privately before asking the juvenile whether they wish to waive their Miranda rights?

The Court held that the actions of law enforcement in this case constituted the functional equivalent of interrogation; accordingly, the unwarned statements that AA made to his mother should have been suppressed. Further, the Court expanded the protections afforded juveniles by now requiring the police to advise a juvenile in custody of their Miranda rights in the presence of a parent or guardian before the police ask the juvenile any questions, or before the parent or guardian speaks with the juvenile. The police must then give the parent or guardian and the juvenile a meaningful opportunity to speak privately concerning whether or not the rights will be waived and questioning may proceed.

State v. Tung – Everything the Jury Hears Matters

February 6, 2020 | By James S. Friedman, LLC

Many attorneys – both defense attorneys and prosecutors – will knowingly try to introduce objectionable material at trial. The reason for this is simple. The attorney believes that the jury has to hear it. It makes a difference in their case, and the effort to introduce it is strategic. Even if it is met with an objection from the other side, and the objection is coupled with a curative instruction from the Court, what often matters is that the jury heard it and they may be thinking about it. The system functions on the assumption that the jury follows the Court’s instructions, and will therefore comply with a curative instruction to ignore what was said. But we all know that in reality, human nature takes over. Regardless of the Court’s instruction to ignore it, there is every reason to assume that what will ultimately happen is that the jury heard the objectionable material and human nature does the rest. This is the reality of a criminal justice system that relies upon the thinking and actions of ordinary people. It may not be consistent with the rules, but the fact is that it happens in criminal trials every day. A good criminal trial attorney will assume that the jury sees, hears and considers everything without exception, even over their objection and regardless of the court’s instructions. (And, by the way, counsel should still object and request the curative instruction. It may not make much of an impact on the jury, but it could be the difference between winning and losing in the Appellate Division.)

The impression that certain objectionable statements made upon the jury was at the heart of the recently decided case of State v. Tung. There the issue was whether the trial court erred in admitting evidence that the defendant exercised his Fourth Amendment right to refuse to consent to a warrantless search; evidence that the defendant exercised his Fifth Amendment right to counsel; and an interrogating officer’s opinion that the defendant lied.

The Appellate Division reversed the defendant’s convictions for murder, aggravated arson, and other offenses. At trial, the jury repeatedly heard that during a pretrial recorded statement, the defendant refused to consent to searches of his property, and had requested counsel. Such references were clearly capable of producing an unjust result at trial because they improperly encouraged the jury to draw negative inferences against the defendant because he had invoked his Fourth and Fifth Amendment rights. The trial court did not excise these references, and did not provide a cautionary/curative instruction. Continue reading ›

State v. A.M. – Statements to Law Enforcement by Defendants With Limited English Language Skills

June 7, 2019 | By James S. Friedman, LLC

Generally speaking, it is a mistake for individuals who are or may be charged with crimes to give statements to law enforcement officers. Many people believe they can talk their way out of being charged, but this is simply not true. Our courts have long acknowledged that the atmosphere in which a statement is given is highly coercive. Further, officers and investigators are trained to take statements, and the person giving the statement simply lacks the same level of training and experience. The only thing a person brought in for a statement should say is “I want a lawyer.” At that point, the interrogation is supposed to stop.

The Miranda warnings exist, and are required, because of the coercive atmosphere of a statement. In New Jersey, these rights are typically explained orally and in writing, and the subject is supposed to initial and sign a form indicating that they understand and waive their rights. Further, statements are supposed to be video taped so that a reviewing body (such as a trial court hearing a suppression motion) can both see and hear everything that happened during the statement. When the subject has limited English language skills, the process, which includes the explanation and acknowledgement of Miranda warnings, should be bilingual.

In State v. A.M., decided in April of this year, our Supreme Court discussed whether a Spanish-speaking defendant who spoke limited English, properly waived his right against self-incrimination. Defendant was charged with sexually assaulting his granddaughter. After learning of the incident, officers transported him to the local police department for a statement. He indicated that he was more comfortable with Spanish. A Spanish speaking officer translated the interview, which was video-recorded, from English to Spanish.