Police Required to Record Interrogation in Major Felonies

When we represent an individual accused of committing a major felony, we are mindful of the new statute in Michigan requiring police to record a custodial interrogation of that individual.  Although the statute took effect last March, some local law enforcement agencies have not been able to comply with the law due to funding limitations and budget cuts.

The express wording of the statute requires the police to make a time-stamped audio-visual recording of the entire custodial interrogation, including the Miranda warning component of the interrogation.  The statute also requires that equipment be utilized in this process that prevents editing or altering the original content of the recording.

When the police conduct a custodial interrogation for a major felony they are not required to secure the consent of the suspect, nor are they required to inform the suspect of the recording.  If the suspect objects to the recording, that is noted, and the interrogation continues unless the suspect invokes a right to have an attorney present.

Major felonies are defined in the new law as any felony that has life imprisonment, or a maximum punishment of 20-years; this includes Criminal Sexual Conduct in the 3rd degree [i.e. victim between age of 13 and 16].  In our experience with such cases, most interrogations have long been recorded.

Making a recording helps the system to the extent that such a recording makes compelling evidence at a criminal trial.  If the suspect confesses, then "the cloth is cut" as we say in the criminal defense bar.  When an accused's confession is recorded, and the criminal defense lawyer is unable to suppress the recording, a guilty plea usually results.

On the other hand, sometimes the recording depicts an individual ardently asserting their innocence, non-involvement, or an alibi.  Once produced, as required by the new statute, the defense attorney is entitled to a copy of the recorded statement.

If local law enforcement is unable to produce the major felony recording, either due to malfunctioning equipment [happens more than you would think] or because there is no equipment due to budget cuts, then the defendant is entitled to a jury instruction advising the jurors of the statutory requirement for a recording, and further advising jurors they can take the missing recording into account.

A more effective remedy, from the criminal defense perspective, is the preclusion of the substance of any unrecorded statement into evidence during the trial.  The best evidence is the actual recording of the accused's statement, not the officer's summary or re-telling of such a statement.

www.clarkstonlegal.com
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Posted in: attorney,criminal defense lawyer,custodial interrogation,Michigan Penal Code,Miranda

Prisoner Has No Right to Miranda Warning During Prison "Investigation"

Homemade Prison Shanks

I have appellate clients doing time at the MDOC's Carson City Correctional Facility in Montcalm County.  One summer day a few years back, when I had just cleared the facility, a gang fight broke out in the yard which led to warning shots being fired from the gun tower and a 2-day lockdown.

Last month, the Michigan Court of Appeals decided a case involving the MDOC's attempt to get to the bottom of those gang disputes.  In the process, the intermediate appellate court touched on the nerve of an accused's right to have legal counsel prior to making statements to police.

In People v Cortez, the defendant, a prisoner at Carson City, underwent a cell shake-down which yielded two shanks from around his bunk.  Cortez was removed to a segregation unit and subsequently interviewed by an MDOC official who attempted to obtain information from the inmate relating to where the shanks came from and who was behind the gang violence.

In his statement, Cortez initially denied any knowledge of the shivs, then had a change of heart and told all, providing details about the gangs and the shivs.  He was charged with two counts of prisoner in possession of a weapon.

At his jury trial [yes, he utilized his right to crank-up a jury trial], Cortez's lawyer attempted to keep out his statements on the basis they were made during a custodial interrogation but without the benefit of Miranda warnings.

You remember Miranda v Arizona; the seminal criminal procedure and constitutional law case from the 1960s SCOTUS, requiring police to provide an accused suspect of his right to remain silent and to obtain a lawyer prior to answering any questions.

Anyway, the Court of Appeals upheld the trial court's decision to allow the MDOC official testify about his questioning of Cortez; the questioning was characterized by the prosecutor as designed to elicit information about the gang violence within the facility and not to obtain evidence of Cortez's guilt.  Cortez's SADO attorney argued that the questioning was clearly intended for use in his subsequent prosecution.

The Court of Appeals held that Cortez was not entitled to Miranda warnings on the basis that he was not in "custodial interrogation" when he was, er, "interviewed" by the prison official; that the prison official was not the equivalent of the state police, nor was he acting on behalf of the state police, who later took over the case;  that the MDOC official's sole concern was prison safety, not gathering evidence against Cortez.

So, within the confines of a prison at least, an accused should not expect to be provided the seminal warnings that a police officer normally would provide about having a right to remain silent and to speak to an attorney before answering questions.

Hopefully, the holding in the case will be restricted to the context of the prison setting.  We don't want safer prisons at the expense of our constitutional rights out here in "the World".

www.waterfordlegal.com

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Posted in: criminal defense lawyer,custodial interrogation,Miranda,SADO,SCOTUS