Lady K'Lyssia said:
Actually he wouldn't want it to sound too official if he is trying to draw him into making a mea res statement that could be used as evidence.
If it were me, I'd want to sound business-like but casual. In other words, someone would expect a detective to sound official and might be suspicious if s/he did not, but there should be a casual-ness to it that makes it seem that this is a question that the detective is asking everyone and it is no big deal.
Lady K'Lyssia said:
Things to keep in mind - Miranda is two prong and both conditions must be met before an officer is required to give the warning - 1) he must be asking questions related to a specific crime and 2) (this is the big one in most cases) the person being questioned must believe he is custody and cannot leave the area.
Miranda is a sticky wicket and case law is always affecting it's implementation. The two prongs are (a) custody and (b) guilt-seeking questions. Your number 1 above means essentially the same as (b). As far as custody goes, though, this one has been upside down and sideways in the court...is it in the mind of the officer that custody has occurred? Or in the mind of the subject? Or does it require the officer having told him/her that custody exists? It has been all of these at one time or another, based on different rulings, but as it stands now, the ruling is that custody exists when the conditions surrounding the questioning meet the functional equivalent of custody. The standard is whether a reasonable person in that situation would believe custody exists (much as you described above).
Courts have ruled that it is not simply enough for the officer to say, "You're not under arrest," but handcuff the subject and put them in the back of a police car and then not give Miranda warnings. However, I have on uncounted occasions asked people to come down to the station for an interview, told them they were not in custody and would be allowed to leave at the conclusion of the interview and then conducted that interview (and let them go as promised). This stands up, despite the fact that we spoke in a secure interview room in the detectives division and that the division itself is through two different secure points.
Anyway, long description to say that Lady K'Lyssia has it pretty well nailed.
Lady K'Lyssia said:
Asking someone general questions about another person doesn't need to come acros as official - you two examples are good. He can approach the suspect - Identify himself - and ask if he had see Bill yesterday - if the answer is yes - follow with - around what time and where at.
Miranda is not triggered when a detective is asking general questions during an information seeking phase of his/her investigation, so you're right. If he is asking a lot of people these general questions, just trying to gather facts, Miranda is not necessary. But it sounds like the detective has focused on the subject here and the subject just doesn't know it...so the detective needs to be careful that no form of custody exists. That way, he can ask innocuous questions that may lead to guilt-seeking ones and not stumble over Miranda.
Incidentally, this conversation could happen on the phone with no Miranda issues. But then you lose 70 percent (or as much as 90, depending on which experts you believe) of the possible return information in body language from the subject.
Lady K'Lyssia said:
At this point the suspect may ask what's going on - the officer can always say they had a call from a friend/family mamber that Bill didn't come home last night so their just checking around.
The police can lie to bad guys. Yes, that's right, they can
lie..it is referred to by the euphemism "proper trickery." As the title suggests, the lie can not be of a nature that would cause an innocent person to confess to something they did not do. Again, the standard is a "reasonable man" standard.
In reality, though, juries don't like it. It may be "proper," and it may work, but it bothers most jurors.
Lady K'Lyssia said:
Now, if your suspect has any knowledge of the law - he can realize that most agencies wiat a full 24 hours before looking for a missing person.
That depends on the nature of the missing person. If there is any evidence of foul play, or if the person is disabled, the response would be considerably sooner.
Lady K'Lyssia said:
Hope this helps
BTW: I worked as a Deputy Sheriff in Colorado for ten years - assigned to the jail, but had a lot of friends working patrol
That brings up another important point...while we are all bound by Federal law, state laws and rulings can be
more restrictive of law enforcement. In other words, while the state can't take away a right guaranteed by Federal law, it can grant the citizens of the state a broader right. We see that most often with 4th Amendment issues. A straight reading of federal rulings might make a particular action acceptable, while the state constitution says it's not. Law enforcement in that state are held to the stricter of the two standards.
The other point that comes up is that criminal law can vary from state to state. Generally, what is a felony here is a felony there and vice versa...but it always pays to take a look at your own state's criminal code, if you're striving for accuracy.
Last of all, Saritams8, I'd be happy to look at the passage directly and make suggestions.
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