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Wednesday, April 16, 2014

Miranda Warnings: Miranda Rights - Information for Writers with Sgt. Derek Pacifico

Two United States Marshals arrest a suspect.
Two United States Marshals arrest a suspect. (Photo credit: Wikipedia)
Hi everyone - 

Today, Sgt. Derek Pacifico has stopped by ThrillWriting to let me ask him some questions. 

To learn more about Sgt. Pacifico and his background - visit this LINK to read the interview where 
we talked about Homicide Scenes .

Sgt Pacifico, I was thinking about Miranda - You know if I were to write a spoof, my heroine would be named "Miranda Warnings."

Sgt. Pacifico - Ha!

Fiona - I thought since I have you here, I'd pick your brain for some plot twists regarding Miranda. This is what I know about Miranda Rights, and what I thought was sufficient:
Some guy named Miranda said that life wasn't fair - took it to court and won - and now everyone must be told that they have certain rights based on the constitution. Then he died in some horrible way...

Miranda Warning:
English: Border Patrol agent reads the Miranda...
. (Photo credit: Wikipedia)
* You have the right to
   remain silent.
* Anything you say OR do
   can and will be used
   against you in a court of
* You have the right to and
* If you cannot afford an 
   attorney, one will be appointed to you.
Do you understand these rights? as they have been read to you?

Sgt. Pacifico - That's not far off the mark. Miranda is a United States Supreme Court decision based on a 1966 case of Arizona v. Miranda. Without going into grand detail, Miranda basically said he didn't know he didn't have to talk to the cops and didn't know he could be represented by an attorney before and during questioning. The basic elements of Miranda which is actually properly called the Miranda Advisal of one's rights - Miranda being the decision not the rights themselves. Technically speaking, the proper way to write it in a police report is, "I advised the suspect of his rights per Miranda." Not, "I advised the suspect of his Miranda rights.

Fiona - Oh good point!

Sgt. Pacifico - Bottom line, the rights cops advise people of are based on primarily two constitutional amendments the 5th Amendment, the right to remain silent and not incriminate one self and the 6th amendment, which is the due process clause. But there are two other amendments that come into play in each case.

Fiona - Let's go to the 6th. I actually have a scene in one of my books talking about poop (Ha!) where my heroine was making a word play on search and seizure and "due process." Can you go over this in layman's terms for the writers - what is required in due process? it pertains to Miranda.

Sgt. Pacifico - The 6th covers the right to counsel as it pertains to interrogation. But here is what's interesting. It ONLY applies when a suspect is in custody, and this is where novelists and television get it wrong. There are two simple tests to Miranda necessity - was the suspect in custody? And were the statements interrogatory? If I am interrogating a subject in his kitchen, and then I leave him there and drive off, his statement from that day is coming in to court without having advised him of Miranda, because he was not in custody.

Fiona - When it is in the "interview phase" then anything you say can and will be used against you - but the police don't need to ante up that info. Only after the decision has been made to take the guy into custody.-what if you don't drive off? 

Police car emergency lighting fixtures switche...
 (Photo credit: Wikipedia)
Sgt Pacifico - If I have a guy in handcuffs, in the back of my car, and I have explicitly told him he is under arrest, thereby confirming the custody issue, but I don't ask any interrogatory questions, then I'm also fine. As long as I don't ask him any questions, or make any statement that would illicit a response regarding the case in chief, I can talk to him all day. What's your name? Do you like baseball? Who is your favorite team? Did you see Derek Jeter's last home opening day? None of those are going to be in violation of Miranda because they have nothing to do with the theft/assault/murder whatsoever.

Fiona - But you could make statements and see if you could egg something out of him?

Sgt Pacifico - Well, here is the confusing part for people. There must be custody AND interrogation. If I ask questions in his kitchen, and he admits to the crime, then I have a very short window in which to advise him of his rights. Here is how it works: a suspect makes an appointment with me, and I meet him somewhere on neutral ground. (happened all the time, by the way.) So no custody. Up until this point he has flatly denied his involvement. 

Now, during the interview, based on a whole set of skills and methods we don't have time for today, the suspect decides that continuing to lie is futile and admits to the crime.The man who came to the meeting thinking he was going to fool the cops and go on about his day, now realizes he can't admit to murder and expect to go home. Whether I say or do anything, he knows he is under arrest after he makes his admission. That is sort of a given. At that point, I must advise him of his rights before proceeding any further. 

The thing is, at this point he is NOT going to invoke his rights and say he wants a lawyer or refuse to talk. He came far enough in his head to admit to the crime; he is going to spill the beans...all of 'em.

Fiona - Does he need to sign a sheet? Do you just read the statements out loud and get a verbal confirmation? And what if there are language barriers or special needs barriers - ex. cognition issues or impairment?

Vintage Westinghouse Pocket Catridge Tape Reco...
 (Photo credit: France1978)
Sgt. Pacifico - Depending on jurisdictions, some officers read and others have them sign a sheet. My agency didn't do the sheet thing. But we ALWAYS, ALWAYS, ALWAYS recorded every moment of the contact. At minimum on a tape recorder (yeah, I'm dating myself), and when available on video with audio as well, along with the 
tape recorder as a redundancy.

In fact, if you listen to one of my interviews outside the office, the first moments are the sound of the car driving, me putting into park, keys jingling, and my getting out of the car. I wanted anyone listening to the recording to know they heard everything from the moment I was with the guy, and that I didn't start the recording "late."

Fiona - Great detail! Tell me about the kinds of equipment you use.

Sgt. Pacifico - The equipment I used at the time was state of the art macro cassette recorders. We would hide in a day planner. We'd gut them and Velcro the recorder in the depth where the calender should have been - which is about the same size.
Malden Pocket
 (Photo credit: stirwise)
Then we'd get a lapel microphone and find a pen with circumference large enough to hollow the ink out and replace the tube with the microphone. The wire would come through the bottom of the hollow the pen and plug into the recorder. Then the pen would clip at the top of the day planner and look completely natural.

Fiona - Very cool.

Sgt. Pacifico - But nowadays the tech is so much better. We only had 90 minutes with a 45 minute per-side cassette. Now, a small recorder has a great mic and can go for 10 hours or more. After the interview, the recoder plugs into the computer through USB and is instantly available to the whole team and the DA. It's fantastic. Those little recorders fit in a shirt pocket without problem - weight or sight. I'm jealous.

Fiona - Do you need a warrant to record? (Warrants blog link)

Sgt. Pacifico - There is no need for police in California and most other jurisdictions to ask or receive permission to record their work. Only citizens can't record each other without permission. I haven't researched this completely, but in every jurisdiction, I have taught across the country, no agency has any legal problems secretly recording their interviews. No search warrants are needed for in-person or in-station recordings. Wiretaps do require a warrant.

Fiona - Okay, good. You said that there were two other constitutional amendments that came into play... can you address those?

Sgt Pacifico - SureThe 4th amendment (search and seizure) plays
a big part and is often overlooked.

If the cops aren't legally where they are supposed to be - meaning they bullied their way into a house or are overhearing conversations from a place of private residence that they did not have authority to enter - then any conversations or admissions are easily challenged. For example, the cops go to a house looking for the suspect and find him. They walk into the unlocked and open front door without permission. They talk to the suspect POST Miranda, and he confesses. The fact he waived Miranda clearly on the tape recording doesn't automatically attenuate the bad search. It's called fruits of the poisonous tree. Since we weren't legally in a place, then anything we saw, heard, or learned during that illegal search may be excluded from evidence in court.

Fiona - WOW!!!

Sgt. Pacifico - The second one is the 14th amendment which speaks to civil rights issues. Where cops get into trouble is in being coercive by the nature of interrogation. If we refuse to let the guy go to the bathroom, refuse water, food, and other essentials of life, if we keep rotating detectives - never allowing the suspect to rest, or if we make threats of violence, then the interview - if not the entire case - is getting tossed. At the beginning of almost all of my interviews where we had to hunt down a suspect, you will see me giving the suspect food and drink, usually from In-N-Out Burger which was on the way to headquarters. After the food and drink, I'd take him out of the room (while continuing to record) for a bathroom break and a (final) cigarette if he smoked. In that way there was no chance of complaints that I was depriving him of any human need. One defense attorney called them "cheeseburger interviews." I loved that! Kind of hard to call us big, bad, mean cops when we start the interview by feeding a guy...

English: A cigarette butt, lying in dirty snow.
 (Photo credit: Wikipedia)
Fiona - I'm assuming the cigarette is a nicety. 

Can an addict say, "I was in pain/stressed/ incapable..." because his drug of choice was not in his system? How coherent must a suspect be to agree to Miranda - one beer? walking? able to slurr out a word?

Sgt. Pacifico - That's a great question! Nicotine is a nicety. But if a guy is jonesing from heroin or cocaine, we aren't going to interview him. One of the primary questions we ask (during a non-drug related case) is if the suspect had used drugs recently. We make a promise that we aren't going to charge them with being under the influence if they admit they used meth last night, while we are here trying to solve a murder. Also, we are drug recognition experts and can tell whether a guy is "high" or not. If someone is drunk or high, then they do have a legal excuse of not "clearly and unambiguously" waiving their rights. 

Truly, if someone is high or drunk, we won't do the interview. The whole thing is legally problematic. If the suspect is going to stay in our custody, we will book him without reading him his rights and let him sleep it off. We will get him in the morning or many hours later when he has had a chance to sober up. Then we will start with Miranda and go from there. If he isn't staying in our custody, we will make some other arrangements based on the circumstances. Changes with each case.

Fiona - Very good. Okay we are winding down - are there any other details you wanted to get across?

Sgt. Pacifico - There are so many aspects to Miranda that we haven't even come close to being able to cover in this forum. It is a really interesting topic that changes in some legalities if not monthly then certainly yearly. When I teach "Interview and Interrogation" to law enforcement, it is a four-hour course. When I teach it at the Writers Homicide School, it is an hour or more on day two. I usually have to cut off the writers' questions, because we can go on for hours and hours with the "what ifs," stories, and other interesting aspects of Miranda. I find the topic fascinating as you can probably tell. If writers want to learn more and hear a full lecture and stories of Miranda success and failures from my many years as a homicide detective, they should come to the Writers  For more information on how to either get tickets or get a personal consultation with me, they can visithis LINK.

Fiona - Awesome. Thanks, Sgt. 

Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.

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  1. My character is a foster kid, 17 y/o with undiagnosed dissociative disorder. Until one of her alter personalities murders her boyfriend. She is found guilty and serving a 20 year sentence.
    BUT...she's diagnosed after the trial. Then it comes to light, by way of her lawyer, that she was never read her Miranda Rights.
    Is this a plausible solution that might lead to her getting out of prison?
    Do you know of any links where I might learn the legal procedure to get this girl out of jail? The end-game scenario is that she gets out...

    1. Hmm.

      You have some problems with your story line - it's fiction, so you may not care.

      First, If she was NEVER read her Miranda rights then they need to ask for a retrial and show proof that Miranda was never read. And a darned good reason why her lawyer didn't bring it up in the first trial. That kind of incompetence can land him in trouble with the bar association.

      Here, her psychological capacity is not a question. This would be darned hard to prove. The police don't just read it - they get the suspect to sign that they read it. They tape themselves reading it. They have witnesses etc. Usually at each juncture - detective coming in etc. They repeat the process. When a detective interrogates a suspect, several police are watching on a screen to help document micro-expressions on a video. This is typically well documented, unlike on TV. For JUST that reason. No cop wants to get written up and lose a case (VERY EXPENSIVE) over a detail like Miranda.

      Was one of her personalities given the Miranda rights but not all of them? Hm. That's not going to hold up. As long as Miranda was served, it was served - unless the personality that showed up could not understand. Ex. spoke a different language, was drunk or high...

      If this child does have DID (Dissociate Identity Disorder - formerly called multiple personality disorder), you have other problems. DID is very controversial. It's still a fight in the psych community as to whether this exists or not. it is VERY RARE if it does.

      Here's the DSM V info:
      • Disruption of identity characterized by two or more distinct personality parts. This disruption may be observed by others, or reported by the patient.
      • Amnesia between parts of the personality.
      • The disturbance is not a normal part of broadly accepted cultural, religious practice, or part of the normal fantasy play of children.

      The last two points are commonly stressed with any mental illness.
      • Causes clinically significant distress and impairment in social, occupational, or other important areas of functioning.
      • The disturbance is not due to the direct physiological effects of a substance.
      (APA, DSM-5)

      But even though it is listed in DSM V - it's a hard case to prove.

      If she had this diagnosis and could convince a judge, this child isn't walking home free. She's going to criminal psych ward at the hospital. Guilty but mentally ill OR Diminished Capacity. She would be a danger to the public.
      see this blog article:

      Does that help?


  2. Thanks, as always, Ms. Quinn, for an informative and concise article.