You Have the Right To Remain Silent, You Have the Right to … Wait, Hold that Thought

The Tampa Tribune picked up a story of a memorandum recently circulated within the Tampa Police Department that provides guidelines for officers looking to skirt the protections of Miranda v. Arizona and its familiar set of warnings.  Opponents of the new policy have blasted the Tampa PD, calling it a recipe for violating constitutional rights, while the police describe it as a necessary tool to aid in the investigation of crimes.  In case  you’re wondering, here are some of the suggestions offered in the memorandum as to how police could seek to elicit incriminating statements, Miranda or no Miranda:

•The Miranda warnings must be given at the outset.

•There must have been a sufficient lapse of time between the invocation of the right to remain silent and the resumption of questioning; two hours is enough, perhaps less.

•The second round of questioning should be at a different location/setting.

•The second round of questioning must concern different crime(s).

According to the story, the memo was written in response to a recent Supreme Court decision, which was not named but is mostly likely the one in Kansas v. Ventris.  In Ventris, the Supreme Court ruled that the prosecution may use statements elicited by the police from a defendant for impeachment purposes, i.e., to undermine his credibility ever after the defendant he has invoked his right to counsel.  Scott Greenfield over at Simple Justice had a nice take on the decision which it was first issued.

I am doubtful the new policy being implemented by the Tampa police will actually result in more closed cases.  Such legally dubious tactics rarely do.  What I am fairly certain of, however, is that Tampa defense attorneys will challenge police-initiated interrogations, and the resulting statements, with more frequency, which, in turn, will lead to more litigation and longer delays for criminal defendants looking to have their cases resolved.

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