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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Thursday, February 09, 2017

Miranda applies not only upon arrest, but also upon custodial interrogation

Miranda applies not only upon arrest, but also upon custodial interrogation
It is fundamental that Miranda Warnings are required when a person is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706 (1966).
"Custodial interrogation" has been defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.
In State v. Cunningham, 153 N.J. Super. 350, 352-353, (App. Div. 1977), the Court (citing People v. Stewart, 62 400 P.2d 97, 102 (1965)), said:
   The test ... does not propose a determination of the actual intent or subjective purpose of the police in undertaking the interrogations but a determination based upon the objective evidence.
A defendant is in "custody" for purposes of Miranda if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he was not free to leave. State v. Barnes, 54 N.J. 1, 6 (1969) cert. den. 396 U.S. 1029, 90 S. Ct. 580, 24 L.Ed.2d 525 (1970). As such, the inquiry has been characterized as an "objective reasonable man" test. Id
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda  doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda  has not been fully complies with.  State v Yough, 49 NJ 587, 600-601 (1967),  State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988).

Absent Miranda Warnings to a defendant who is in custody, the prosecution may not use a defendant's answers to questions. State v. Hartley, 103 N.J. 252, 275 (1986). A valid waiver of a defendant's constitutional rights must be made voluntarily, knowingly, and intelligently - the State bears that burden of that proof beyond a reasonable doubt. Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612,   State v. Bey, 112 N.J. 123, 134 (1988)

A violation of Miranda does not throw out an arrest. The Miranda violation only makes the verbal statements not admissible at trial


         As set forth in NJ Practice, Vol. 32 Criminal Practice and Procedure  (West 1998) Section 755, in Rhode Island V Innis,  446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) the United States Supreme Court held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit, an incriminating response from the suspect.
         It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145 (1987).

           Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his  Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton, 61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988). citing  Miranda v Arizona  384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flowers.
         In  State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that   since the Defendant could not understand his  Miranda  rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Id at 220.
         Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence.  State v Arcediano 371 F. Supp. 457 (D. NJ 1974); See also  Wade v Yeager 245 F. Supp 62 (D. NJ 1964).    

         The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently.  If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void.  If the suspect is suffering from a mental disability, which renders him incapable of understanding his constitutional rights, then any waiver is void.  The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs.
         Where circumstances cast doubt on knowing and intelligent  quality of alleged waiver of right to counsel, there can be no waiver.  State vs. Dickens 192 NJ Super. 290 (App. Div. 1983).
         Intoxication is grounds to suppress statements. See e.g.  Common vs. Brithsher  563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid);  Common vs. Andel 477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication,  his eyes glaring and had a strong odor of alcohol.  Statements made by defendant while in custody should suppressed.)
         The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst  304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality.
           Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger  838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct.  2832 100 L. Ed 2d 933 (1988).
         A Jackson-Denno hearing refers to the court proceeding determining whether a defendant’s confession was voluntary or involuntary, based on Jackson v. Denno, 378 U.S. 368 (1964). At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce. 
Criminal Lawyers Job ABA p40
Issues to determine if defendant was “in custody”
Was defendant free to leave?
Was defendant put  in handcuffs?
Was he in patrol car?
Was he in police station?
Was he free to leave police station?
Was he given Miranda warning?

                                                     Respectfully submitted

                                                   KENNETH A. VERCAMMEN
                                                       ATTORNEY AT LAW