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Know your Constitution
the Right to Be Silent
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Practical tips about interacting with police officers in California, with ''dos'' and ''don'ts'' sections about being stopped for questioning, stopped in your car, and being arrested or taken to a police station.
Rights ~ You Have the Right to Be Silent
Published on Aug 17, 2016
Take Action: http://fairsentencingforyouth.org/mir... Currently in California, children—no matter how young— can waive their Miranda rights. When law enforcement conducts a custodial interrogation, they are required to recite basic constitutional rights to the individual, known as Miranda rights, and secure a waiver of those rights before proceeding. The waiver must be voluntarily, knowingly, and intelligently made. Miranda waivers by juveniles present distinct issues. Recent advances in cognitive science research have shown that the capacity of youth to grasp legal rights is less than that of an adult. This is especially true for very young, developmentally disabled, or cognitively delayed children, and for those with mental health problems.
The Importance of Miranda
"You have the Right to remain silent, anything you say,
can and will be used against you in a court of law.
You have the Right to speak to an attorney and to
have an attorney present during any questioning.
If you cannot afford an attorney, one will be appointed for you....."
I'm sure most of you have heard this sort of Miranda Warning in TV shows sometime in the last 40+ years since the original Miranda case was handed down by the Supreme Court. What the Miranda case did in 1966 was set guidelines for when a suspect must be told of their right to remain silent and their right to an attorney.
Most people don't realize that Miranda only comes into play when a suspect in a criminal case has been taken into custody or arrested. If you are being investigated by police or CPS officials for any reason, no one is going to read you your Miranda rights from the beginning, but that doesn't mean you can't invoke them.
At its most basic level, Miranda is to protect you from self-incrimination. Where does this protection or right come from? The U.S. Constitution, the basis for all our laws. If you haven't read it lately, you need to. Go here for a free PDF file you can download: http://www.apfn.org/pdf/citizen.pdf
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property, without due process of law. U.S. Const. Amend. V
The Fourteenth Amendment provides, in part: "....nor shall any state deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV.
Let's get this clear. If you are being questioned by officials of any type, you have a Constitutional Right not to shoot your mouth off to them and spill your guts about everything you know (or even don't know) to be reinterpreted by them, which may or may not land you in jail with criminal charges filed.
How can you take back any statements once they've been uttered? Remember the WWII slogan, "Loose Lips Sink Ships"? It certainly applies here. CPS doesn't have to get a guilty verdict in a court of law to devastate your family and your children. They can just put you in the hot seat, try you in the court of public opinion and watch your life unravel like pulling a loose string on a hand-knit sweater. They don't have to hit a bull's eye for the collateral damage to take its toll. You may even never be charged criminally and could still wind up loosing custody and your parental rights terminated. You still loose your children and the State wins -- gloating all the way to the bank.
There is also no law for you to help them prove or win any case they might be trying to build against you or a loved one. In fact, you have the Right against self incrimination according to the 5th Amendment to the Constitution of the United States of America.
Case workers or investigators will go on "fishing expeditions" for information that may or may not be related to an incident that suddenly gets blown all out of proportion. Do not give them fodder to chew on. They are not your minister, priest, or rabbi; they are also not your parent, counselor, or friend. They have their own agendas in the course of an investigation and it does not include looking out for your Constitutional Rights. In fact, they will try their best to threaten, intimidate, and cajole you into telling them what they want to hear, regardless of your Rights.
Their goal in the course of their investigation is to find you guilty - of something, ANYTHING, because then it justifies their existence. The more people that are found guilty, the more money that flows into the coffers of whatever department you have, per chance, come across.
Asserting your innocence does no good, because everyone is guilty of something if you dig long enough. They may not be able to pin a murder charge on you because there's no body (evidence), but what about jaywalking, littering, or spitting on the sidewalk? Well, you must have done the crime, right? Otherwise you wouldn't have been charged in the first place by this nice official who has all the "right" credentials. It becomes a case of "he said/she said". When you're dealing with a stacked deck, who wins? The person who owns the deck!
The authorities are all familiar with each other. They see each other on a regular basis. They conduct their business together all the time. In fact their very jobs are dependent upon money being brought in. Courtrooms are full of citizens being brought in by various governmental departments. Police, sheriff, code enforcement, dog catcher, you name it. And all these governmental players have friends in the courthouse since they are there so often. They are all playing on the same team folks!
They want you to play with them with their own stacked deck, but they don’t tell you that it’s stacked. This is why we have constitutionally guaranteed Rights to help you deal with the "stacked deck." This is even if you didn't know the deck was stacked in the first place! If you don't assert your Rights, it is as good as if you didn't have any. If you don't know what your Rights are, how are you going to let them protect you? If you willingly talk with investigators, you are giving up Rights that protect you. At this point, you have waived them and you have consented to abandon your Rights. Why should you? Why do you want to help them "win" their case? Why do you want to give them ammo for their gun? They want you to play with them with their own stacked deck, but they don't tell you it's stacked.
It's probably because you don't remember your high school civics class, how to be a good citizen by knowing and asserting your Rights to better balance the power between yourself and the authorities. You have also been watching too many brain numbing shows in which the suspect willingly gives up their Right to remain silent before they talk with their attorney. Monkey see, monkey do! You have to stop that right now.
Now is the time to install the proper "software" in your hardware (your brain) on how to deal with contacts with the authorities. Watch these videos to help you remember:
"The government's interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents." Calabretta v. Floyd, 189 F.3d 808 (1999).
Remember, learning about and knowing your Rights and respectfully asserting them during encounters is no guarantee that your Rights won't be violated. But, it does help diffuse a situation before it becomes all blown out of proportion, with reason and logic having gone out the window - for both sides.
The key is to be respectful. Even if the other side isn't doing the same to you, be kind in your replies to them. Do this if it takes every ounce of willpower you can muster. It puts them off guard. It also lets the investigator know that you are not just some hick that fell of the turnip truck yesterday, and they cannot run roughshod over you willy-nilly. Besides, you do have your tape recorder or video camera running, right? (Don't think about posting to You Tube just yet - better talk it over with your legal counsel.)
You want to make sure that you not only have a cool demeanor in dealing with these people, but that you look like the one who is the innocent party in this whole situation, and that you have your act together! You can wig out, scream, cry, or whatever, in the safety and comforts of your own bedroom after these guys are gone. Do not let them see you are intimidated or cowed by their behavior. But, neither do you want to come off cocky or like a smart aleck. If there is any time to be calm, cool and collected, this is that time.
Before You or Your Children Are Questioned
This Act has two provisions to help protect children and families during child abuse investigations. First, it requires CPS workers to be trained in their duty to protect the statutory and constitutional rights of the very people they are investigating. Secondly, CPS workers are to tell people involved in an abuse or neglect investigation what the complaint or allegation is that has been made.
Once upon a time when the King was on his throne, his agents went from house-to-house looking for printed papers, and "prohibited and uncustomed" goods. These items either had been smuggled in to avoid the high tax, or were claimed by the King to promote seditious libel and civil unrest. The Colonists grew tired of these "writs of assistance", general warrants, that made no man's home his castle. They were viewed as unreasonable by the early Patriots. Because of these issues, the Founding Fathers wanted boundaries to the "blank check" warrants that had been common. From these circumstances, the Fourth Amendment was birthed.
"The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV."
Since the penning of those great words, many years ago, there have been many court rulings that have defined and refined the limits of search and seizure. The key is the "reasonableness" test.
"A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Jacobsen, 466 U.S. at 113; State v. Daly, 14 Kan.App.2d 310, Syl. ¶ 5, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990)"
"A "seizure" (of property) occurs when there is some meaningful interference with an individual's possessory interests in that property. Jacobsen, 466 U.S. at 113; Brooks v. Sauceda, 85 F.Supp.2d 1115"
I know many social workers and others believe there is an exemption of the warrant requirement in child abuse investigations. But, the Ninth Circuit Court has ruled in Calabretta v. Floyd that as a general rule, unreasonable searches and seizures are banned and it presumes that all warrantless searches are unreasonable. The only exemptions for not getting a warrant (aside from voluntarily agreeing to a search) during the course of an investigation for child abuse are twofold:
1. That the social worker has in his or her possession evidence that would establish probable cause, and
2. There are exigent circumstances (meaning there is an emergency) threatening the health or welfare of the child.
Please print up the following page which details "Why Warrantless Entries Into Homes Are Generally Unconstitutional" and add it to your law notebook. http://www.hslda.org/docs/nche/000010/CPSMemo.pdf
A Warrant is a court order specifically describing the person, place or thing to be seized or searched.
How Do They Get a Warrant?
A governmental official applies to the court to try to obtain permission for them to invade your privacy to obtain information that may be useful to them in convicting someone -- probably yourself, or someone you know, of a crime. In the application, they have to be specific about their allegations, i.e. "We have been told by (friend, relative, school teacher, etc) that John Doe's (house, property, car, person, computer, etc) contains evidence that he (knows about, participated in, personally committed) the crime of (name your favorite here).
They have to show the court "probable cause" which is a good reason for assuming that a crime has been committed, and that you or the person in question did it. The facts that are known must be sworn to, or attested, that they are true to the best of the beliefs of the person making the application.
Anonymous tips, by themselves, cannot be the basis of a warrant, since you have no means of testifying to their veracity. However, if you have an anonymous tip that corroborates the other information that has been gathered from other known sources, you can use it. But again, not all on its own.
“[A]n anonymous tip, without more, does not constitute probable cause.” See United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000) (citing, inter alia, Illinois v. Gates, 462 U.S. 213, 227 (1983)). For an anonymous tip to be accorded any weight there must be some basis that the tip is true. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006)."
“Frankly, it is difficult to conceive how a social worker, whose work is directly governed by state law and regulation, could claim to have a reasonable belief that a warrantless removal that is expressly prohibited by state law and regulation is somehow permitted by the Constitution.” Moodian v. County of Alameda Social Services Agency 206 F.Supp.2d 1030, *1035 (N.D.Cal., 2002
See also H.R. v. State Department of Human Resources, 612 So. 2d 477 (Ala. Ct. App. 1992); and Calabretta v. Floyd, 189 F.3d 808 (1999); North Hudson DYFS v. Koehler Family, Superior Court of New Jersey, Appellate Division (2001); Moodian v. County of Alameda Social Services Agency 206 F.Supp.2d 1030, *1035 (N.D.Cal., 2002
Doe v. Carla Heck, a 7th Circuit Court of Appeals 2003 decision where a social worker entered a private school to interview a certain 11-year-old child in an attempt to find out about corporal punishment he and other students may have had and other "certain family matters". (This is the fishing expedition, folks!)
On a later occasion, the social worker tried to interview other students, but was denied access to the children without a court order or parental consent. The social worker later had to close the investigation for lack of information and the parents of the 11-year-old child sued for violations of their Rights under the 4th and 14th Amendments.
The social worker(s) "went to the school for the specific purpose of gathering information, an activity that most certainly constitutes a search under the Fourth Amendment,” and that "under the traditional approach, the term 'search' is said to imply 'some exploratory investigation or an invasion and quest, a looking for or seeking out.’” The court found that the 11-year-old child "had been 'seized'” within the meaning of the Fourth Amendment because no reasonable child would have believed that he was free to leave..." citing Brokaw, 235 F3d at 1010 "holding that the defendants action of taking a child into custody, without the consent of his parents, for the purpose of questioning him about allegations of child neglect was a seizure under the Fourth Amendment".
Did you get that? The court has ruled that gathering information is an activity that constitutes a search under the 4th Amendment. A fishing expedition is a search, and as such, you are protected by your Constitutional Rights, unless you waive them.
This ruling above, however, does give the authorities a loophole, as it restricts these fishing expeditions on PRIVATE property, i.e. a private home, private school, etc. A PUBLIC school does not have these protections. Why? When you drop your child(ren) off at the schoolhouse door, you are then giving the public school authority to act in your stead via something called "in loco parentis" which is Latin for "in place of the parents." (Related term: Parens Patriae which is Latin for "father of the people")
When the public school exercises their version of in loco parentis, they substitute their judgment for yours. Remember, they are government officials that you place in charge of your children for approximately 180 days a year. They will do what they deem best for your child while you are not there, including letting other governmental personnel have access to your child. You remember that the public school is a governmental institution, don't you?
''...[S]chool officials act as representatives of the State, not merely as surrogates for the parents.''469 U.S. 336 (1984)
You give this same authority to a private school, but with a few differences.
A public school has public monies at its disposal. They don't have to please you, as they feel they are the only legitimate source of education there is, even if it isn't. They don't want the parents to have the freedom to choose, because when we do, we often don't choose the public version of school.
Another good case to note is Heartland Academy Community Church, et al, vs. Michael Waddle, decided May 11, 2004 in the United States District Court, Eastern District of Missouri, Northern Division.
“In the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances, meaning that state officers ‘“have reason to believe that life or limb is in immediate jeopardy.’” Brokaw, 235 F.3d at 1010 (quoting Tenenbaum v. Williams, 193 F.3d 581, 605 (2d Cir. 1999) (citation omitted)). The same standard for reasonableness applies when a child is seized from a private school where she has been placed by her parents. See Doe, 327 F.3d at 512 (holding “[i]n our view, there is no basis for concluding that when a minor child is entrusted to the care of a private school in loco parentis his reasonable expectation of privacy, vis-à-vis government officials, differs in any material respect from that which he would otherwise expect to receive at home.”).
Michael C. v. Gresbach, another 7th Circuit Court of Appeals decision, this time from 2008, mirrors the Doe v. Heck case above. From the Liberty Counsel website:
"Seventh Circuit Court of Appeals has ruled in favor of two Wisconsin children who were strip-searched by a state social worker at a private Christian school. In Michael C. v. Gresbach, the appeals court panel unanimously ruled that the social worker, Dana Gresbach, violated the Fourth Amendment rights of the children to be free from an unreasonable search.
"The court stated that "it is a violation of a child’s constitutional rights to conduct a search of a child at a private school without a warrant or probable cause, consent, or exigent circumstances." The court held the social worker personally responsible for violating the students’ rights, because the law in this area is so clear that she should have known her actions were unconstitutional. Although the school principal allowed the social worker to interview the students, the social worker never even mentioned that she intended to require the children to remove their clothing. In addition, the social worker refused to allow the principal to contact the parents before the interview or to be present when she forced the children to strip.
"Stephen Crampton, Vice President of Legal Affairs and General Counsel for Liberty Counsel, commented: "Decades ago, the United States Supreme Court emphatically ruled that the child is not the mere creature of the state. Unfortunately, social workers repeatedly ignore that fact and routinely trample parents' rights under the guise of protecting the children. This ruling sends the message that the Constitution is still in effect protecting law-abiding families from the overreaching arm of the state, both in the home and in private schools."
In Arizona on Sept 27, 2007, in the case Loudermilk v. Arpaio, a Federal Court ruled that an unsupported threat to place children in custody was unconstitutional because the fear tactics the social workers and sheriff's deputies used violated the constitutional guarantee of family privacy and integrity.
“Defendants persisted in their threats to remove the children if Plaintiff Parents did not consent to the search, stating that [they] could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiff’s favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.”
The judge additionally cites:
"The principle that government officials cannot coerce entry into people’s houses without a search warrant or applicability of an established exception to the requirement of a search warrant is so well established that any reasonable officer would know it.” Calabretta, 189 F.3d at 813. Similarly, “[t]he constitutional right of parents and children to live together without government interference is well established.” Mabe, 237 F.3d at 1107 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982))."
“Knowledge will forever govern ignorance. And people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.” James Madison, letter to W.T. Barry (August 4, 1822), reprinted in G.P. HUNT, ED., IX THE WRITINGS OF JAMES MADISON 103
“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.” Washington Public Records Act, RCW §42.17.251
Unless courts are prepared to enforce these rights and protect those charged with crime, irrespective of their obvious guilt, they condone illegitimate and unconstitutional practices which, if long adhered to, may result in a breakdown of the protection accorded free men by the Fourth and Fifth Amendments.[fn3] This course, like the enforcement of other parts of the Bill of Rights, may often afford a shelter for criminals, "But the forefathers thought this was not too great a price to pay for that decent privacy of home, papers and effects which is indispensable to individual dignity and self respect. They may have overvalued privacy, but I am not disposed to set their command at naught."[fn4] BROCK v. UNITED STATES, 223 F.2d 681 (5th Cir. 1955).
So what do you do if the "authorities" come knocking at your door? First of all, why answer the door if you don't know who it is? There's no law that says you are obligated to answer every knock on the door (or every time the phone rings!). But, if someone tries to catch you unawares, perhaps on your way from the house to the car to go someplace, how should you respond? Perhaps your encounter could go a bit like this:
Social worker comes up to you and says, "Hi, I'm Sarah Snake with the Division of Family Services. I'd like to ask you and your children a few questions about a complaint we've had. I'm required by law to come into your home to investigate." She hands you her business card and has her photo id clipped to the lanyard around her neck.
You are about to reach for the door to go inside to put your groceries away. Your children have already scurried inside. Close the front door and stand outside your house. (You don't want her to follow you into the house like a little puppy without permission, and they will try.) You turn to the SW and say, "Oh, what is the nature of the complaint?" (You have a right to know this before you answer any of their questions.)
Sarah Snake sneakily says, "We've had an anonymous hotline complaint and I can't reveal more information until I've conducted my investigation."
You politely reply, "I'm sorry, but I'm sure my attorney is going to ask what the investigation is about. He's also instructed us not to allow you into our house without a search warrant. May I see yours please?" (Be reaching for your cell phone to call your attorney.)
A bit miffed that you aren't cowing to her every whim and desire, Sarah Snake snips back, "I can get one in a matter of minutes. What are you trying to hide, anyway?"
Nicely as you can, you muster a smile even though you feel as if you've just been slapped in the face or worse yet, sucker punched in the gut. However, you also know that she can't get a warrant without support of imminent physical danger and probable cause, and an anonymous complaint can't be the basis of a search warrant.
"I understand your concerns, Ms. Snake. I'm sure you've had training in upholding the Constitutional Rights of citizens in the course of carrying out your job, haven't you Ms. Snake? I'm sure you're just as concerned as we are about the gradual usurpations of these Rights, aren't you Ms. Snake? It's because of this, Ms. Snake, that I must tell you we need a search warrant before any further investigation. I'm sure you understand. Have a nice day, Ms. Snake."
At this point, you enter your home and close the door securely behind you.
Some Helpful Sentences to Learn
· "What seems to be the problem officer?"
· "May I see your warrant?"
· "I do not consent to a search, officer."
· "I understand your concerns and I'm happy to cooperate. May I see your search warrant please?"
· "I do want to cooperate; however, I do not want to ignore proper established procedure."
· "Why would you want to circumvent clearly established laws and procedures?"
· "I am happy to do all that is asked of me by the court. Do you have a court order for the things you are asking?
The three most important things for you to do after you politely inform someone you wish to stand on your Constitutional Rights (objecting to a warrantless search, right to remain silent, etc.) are:
1. Be quiet
2. Shut up and
3. Don't say anything
And then as soon as possible, talk with your legal counsel. Get a notepad and pen and write up the sequence of events while it's still fresh in your mind. Do not give a copy to any investigators, only to your attorney.
Finally, read, read, and read as if Your Life depends on it. You have been thrust into a situation that you were not expecting for the most part, but you can't give up. You have been thrown into shark-infested waters and you must learn to swim, and swim quickly.
Please let us know if you have a question we can help you with. We're not attorneys, we're just like you, people that were once in the same midst of a sink or swim, do or die, circumstance. We made it through, and so can you. Hang tough.
The following information, in this section, is provided by Home School Legal Defense Association. The first is an image of information that you can place on your front door, for example. You can download this image (searchwarrantreqd.gif) and make it what ever size necessary.
These references are files for download titled:
Dog Tags for Your Children
Idea Description (Originally Posted 5/2/08 on IdeaBlog)
I am the CA. Director for NFPCAR (National Foster Parent Coalition for Allegation Reform) & we are a non profit online support group for families who have been falsely attacked by CPS or the Juvenile Justice System. Our support group is developing "Miranda Dog Tags" as a "safe-guard" for children that will protect them from being forced to talk to "strangers" who try to interview them without the parents present. On one side of the tag would have personal contact information and the other side would have a brief "Miranda" statement for the child to use when needed. These Dog Tags can be worn by any child and presented when cornered by strangers. Directions for proper use will be included.
This idea is meant for ALL parents...children...biological, foster, adoptive or kinship care. We at NFPCAR totally AGREE that the common enemy is CHILD PROTECTION SERVICES...(CPS) and we ALL need to stand together in this fight. As soon as we can get these "dog tags" manufactured and on the market they will be offered to "anyone"...not just foster families. Anyone who is interested in joining together in this fight for justice please feel free to join our NFPCAR group by going to...the bottom of this page...and signing up. Our support group is FREE to anyone who wants to join and we are open to any and all parents, grandparents and kinship caretakers. Please help us achieve our goal to help protect our children and families from the enemy...Goliath...(i.e. CPS and the Juvenile Justice System). I can be reached at the NFPCAR group site or at email@example.com.
Thanks for your support,
Please check back soon for an example of the Miranda Dog Tag.
All ideas and
development of the Miranda Dog Tags for Children is Copyrighted © by
the NFPCAR Organization.
Okay, I found a site from AFRA (American Family Rights Association) with a three panel pamphlet, that may be a little over the top. But who is to say we can't print it and hand it out? The way you print it out is a little rough, so I created a file called Miranda.pdf. So click on this link and print away.
However, if you wand to start at the beginning and read a little more from AFRA, click here: http://www.familyrightsassociation.com/info/law/all_about_miranda/index.html .
I keep seeing too many posts that say their Schools don't accept Miranda. I just read something on the AFRA site that said there was a higher court decision that says the Schools don't need to read rights unless the police say so. However, I found nothing that says a Parent can't inform the school that no one can not question your child without you and/or your lawyer present.
Good Responses When Being
When police arrived the ex-husband, (having heard the sirens), left in haste. When police arrived, an officer approached me and asked what was going on. I replied, "I can't say". He repeated his request, claiming he was investigating a report of domestic violence. Again I repeated, "I can't say". "Why can't you say?", questioned the officer. Because under my Constitutional Rights and the application of Miranda, I choose to exercise my right to remain silent.
The officer became quite angry
with me and said, "That only applies to your right not to give witness
against yourself", to which I responded, "I am a paralegal and this is
my client. As such I cannop give testimony against her either. The
officer became even more angry with me and threatened to arrest me. I
drew my hands out in front of me and said, "Let's go!" The next second
the officer attempting to interrogate me, left me alone and started
in on my client, who told him everything about what her ex-husband had
done, and the fact that she had a restraining order against him. The
officer came back to me and asked me to verify what my client had said.
I simply shrugged my shoulders and said, "I can't say". The officer
turned away from me and told his partner, in an angry tone, "I'm done
with this one!"
Jargondatabase.com defines "Reasonable Deception" as "A legal
doctrine that says police may lie to suspects during interogations so
long as an innocent person would not be affected. For example, the
police could say that they had found a bloody fingerprint when they had
not. The innocent person would know that they were lying, but the guilty
would not be sure. A very effective technique, and one of the main
reasons why defense lawyers exist." Notice
that it says they may lie during interrogations "so long as an innocent
person would not be affected". How many of us on this group can testify
from experience that their deception has indeed affected an innocent
1. Officer Truthfulness: Relevant Case Law
Haney v. City of Los Angeles, 109 Cal. App. 4th 1
Comments from Contributor
This article was originally posted on the American Bar Association website but I couldn't find the original link, so I had to copy and paste it from my saved web pages. There's also two more interesting links called "How the System Works" and "Truth in Justice" posted at the bottom of this article. I'm not sure if the links at the bottom of this article will work for you (I was able to connect to them from my saved webpage), so here they are as well: http://www.truthinjustice.org/systemworks.htm and http://www.truthinjustice.org/index.htm .
Truth in Justice has this to say on their website: "Truth in Justice is an educational non-profit organized to educate the public regarding the vulnerabilities in the U. S. criminal justice system that make the criminal conviction of wholly innocent persons possible."
"When we say "wholly innocent," we mean a person who had absolutely no part in the crime charged. An innocent person is deprived of life, liberty and the opportunity to contribute to society, while the guilty party is free to commit more crimes against unsuspecting victims. In many instances, no crime was committed in the first place -- a suicide is charged as homicide, or an accidental fire is mistaken for arson. How does this happen? Faulty eye witness identification, tunnel vision investigators, over zealous prosecutors, bad science, compromised experts and a politicized judiciary are major factors, along with a credulous public."
"Why should you be concerned about wrongful
conviction? The cases here make the answer clear: it can happen to
anyone, including you. What can you do? Educate yourself. Ask
questions. Think. Stop rewarding malfeasance. It starts with just one
It starts with YOU."
Other Items to Add:
This is what the website says about it:
> It looks like a pen. It writes like a pen. But it's actually one of
> the world's smallest and most discreet digital recorders!
> 4GB digital pocket recorder is the perfect way to secretly capture
> video. Great for conversations with your ex-wife, vendor meetings,
> negotiating with salespeople and more! Ever wish you had video of
> that conversation you had? Now you can! This working pen has a new
> and improved color CMOS image sensor that captures video in 600x480
> resolution at the simple press of a button. Also has 4GB flash
> memory to store up to 5 hours of video, on-board mic, built-in
> rechargeable battery, comfort rubber finger grip, replaceable ink
> cartridge, USB 2.0 interface and more. Windows compatible. 5.8"L.
> NOTICE: State and federal laws make recording audio illegal under
> certain circumstances. Carefully check all applicable laws before
> using the audio recording feature to make surreptitious recordings.
Agency Investigation Policies
Do a web search for:
State of Connecticut Department of Children and Families
Once on the home page - look for Policy and Regulations (bottom right hand side of the page)
Open section 34 of the policy manual is titled 'Investigations'
The whole section is good info. However, section 34-3-5 titled "Conditions for Interviewing the child victim' is the info I was pertaining to about interviewing children with or without consent.
Of course there are CT State statutes that supports all this. I could get you the statute numbers as well, but I am on my way out.
Protection of Pupil Rights (Hatch Amendment)
Goals 2000, Educate America Act—
Sec. 1017. PROTECTION OF PUPILS
Section 439 of the General Education Provisions Act (20 U.S.C. 1232g) is amended to read as follows:
"PROTECTION OF PUPIL RIGHTS
"Sec. 439. (a) All instructional materials, including teacher's manuals, films, tapes, or other supplementary material which will be used in connection with any survey, analysis, or evaluation as part of any applicable program shall be available for inspection by the parents or guardians of the children.
"(b) No student shall be required, as part of any applicable program, to submit to a survey, analysis, or evaluation that reveals information concerning—
"(1) political affiliations;
"(2) mental and psychological problems potentially embarrassing to the student or his family;
"(3) sex behavior and attitudes;
"(4) illegal, anti-social, self-incriminating and demeaning behavior;
"(5) critical appraisals of other individuals with whom respondents have close family relationships;
"(6) legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers; or
"(7) income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program),
without the prior consent of the student (if the student is an adult or emancipated minor), or in the case of an unemancipated minor, without the prior written consent of the parent.
"(c) Educational agencies and institutions shall give parents and students effective notice of their rights under this section.
"(d) Enforcement.—The Secretary shall take such action as the Secretary determines appropriate to enforce this section, except that action to terminate assistance provided under an applicable program shall be taken only if the Secretary determines that—
"(1) there has been a failure to comply with such section; and
"(2) compliance with such section cannot be secured by voluntary means.
"(e) Office of Review Board.—The Secretary shall establish or designate an office and review board within the Department of Education to investigate, process, review, and adjudicate violations of the rights established under this section.".
When does this act apply?
When federal money is involved in the implementation and maintenance of a program. If a school district has a federal grant to write curriculum, this law applies. If the state has a federal grant for a particular program, and in turn, provides grants to school districts for the same program, this law applies.
© September 1998; Lynn M Stuter
The National Law Journal
February 25, 2010
It has not been a good week for the famed Miranda warning at the hands of the Supreme Court.
In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations.
The Court on Wednesday issued Maryland v. Shatzer (pdf), establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent.
The Maryland case came down a day after the justices decided Florida v. Powell (pdf), in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.
Stanford Law School professor Jeffrey Fisher said the rulings continue the Court's trend of "extreme hostility toward constitutional rules that require the exclusion of evidence -- especially confessions and the product of illegal searches -- from criminal trials." Fisher, who heads a National Association of Criminal Defense Lawyers committee that files amicus briefs at the high court, said, "In short, this Court sees the costs and benefits of rules designed to curb police overreaching entirely differently than the Court did a generation ago. "
Sidley Austin partner Jeffrey Green, who also assists NACDL and other defense lawyers in high court arguments, added, "At this rate, what's left [of Miranda] will be only what we see on TV."
But Lauren Altdoerffer of the Criminal Justice Legal Foundation, which supports law enforcement officials in Miranda cases, said the rulings don't weaken constitutional protection against compelled self-incrimination. "The Court is allowing states and police to draft rules that fit their needs but still fit the requirements of Miranda." She added that the crucial question is whether the interview of the suspect is compelled or voluntary.
In the Maryland case, which was argued on the first day of the Court's term last October, the ruling weakens the so-called Edwards v. Arizona rule, which states that, once a suspect invokes Miranda, any subsequent waiver of the right triggered by a police request is deemed involuntary -- making further police questioning improper.
Justice Antonin Scalia, writing for the majority, carved out an exception to that rule when there is a "break in custody" between the first and subsequent police efforts to question the suspect. In the case before the Court, defendant Michael Shatzer Sr., who was in prison on other charges at the time, asserted his Miranda rights in 2003 when police tried to question him about sexually abusing his son.
The investigation was closed, but more than two years later was reopened and he was questioned again in 2006, while still in prison. Investigators read him his rights again, he signed a waiver, and made incriminating comments about the episode with his son. Indicted on abuse charges, Shatzer sought to have his interview suppressed because of the 1981 Edwards rule. The Maryland Court of Appeals, the state's high court, sided with Shatzer, citing the Edwards rule.
Scalia said the Edwards rule should not act as an "eternal" bar against further police questioning. "In a country that harbors a large number of repeat offenders, this consequence is disastrous." In the interest of producing a clear rule on the issue, Scalia said the Court agreed that, after a 14-day "break of custody," police may try to question a suspect again without fear that a subsequent confession would be suppressed. "That provides plenty of time for the suspect to get re-acclimated to his normal life ... and to shake off any residual coercive effect of his prior custody," Scalia wrote. In Shatzer's case, Scalia said the fact that he was actually in prison during the "break in custody" did not alter the calculus. Justices Clarence Thomas and John Paul Stevens joined Scalia's decision except for the 14-day duration of the new rule.
In Tuesday's Florida v. Powell ruling, Justice Ruth Bader Ginsburg wrote that Tampa, Fla., police had satisfied the requirements of Miranda even though its warning did not explicitly tell the suspect that he had the right to have a lawyer present during questioning. Interviewed in connection with a 2004 robbery, Kevin Powell was told he had "the right to talk to a lawyer" before answering police questions, and that he could use "any of these rights at any time you want" during the interview. The Florida Supreme Court said this wording was inadequate and misleading and the confession should be suppressed.
But Ginsburg said that, in combination, the Tampa police warnings "reasonably conveyed Powell's right to have an attorney present at all times." She noted that the FBI, like many other jurisdictions, explicitly state the right to have a lawyer present, "but we decline to declare its precise formulation necessary to meet Miranda's requirements."
A third Miranda case is still pending this term. Berghius v. Tompkins, which will be argued on March 1, asks whether police can try to noncoercively persuade a suspect to answer questions after the Miranda warning has been given, but before the suspect has invoked or waived the right.
God Bless, GranPa Chuck