41K-Interrogating Detainees and Arrestees 2019

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41K-Interrogating Detainees and Arrestees Policy & Procedure Page 5 of 11 suspended for reasons not attributable to the police, such as a natural disaster or emergency.xi b. The interrogating officers should be certain that the suspect understands the rights that have been read to him/her, as the burden will be on the prosecution to prove that the waiver was valid.xii c. The waiver must be made voluntarily, knowingly and intelligently to meet the conditions of the Miranda decision. d. In determining whether a valid waiver was made, the court examines the totality of the circumstances surrounding the waiver, to determine if the statement was a free and voluntary act. The court considers the circumstances of the interrogation and the individual characteristics and conduct of the suspect, such as the length of time between the provision of Miranda warnings and the waiver, the suspect’s age, mental capacity and experience.xiii e. When the detainee waives his/her rights, the interrogating officers shall obtain a written waiver when possible. A waiver may be made orally or in writing, but a written and properly witnessed waiver is more likely to be upheld in court. f. Silence on the part of the suspect does not constitute a valid waiver.xiv g. The physical and emotional condition of the person being questioned is an important consideration in determining the validity of a waiver. The police should refrain from questioning if the suspect is clearly not capable of understanding his/her rights.xv h. The waiver of rights form can be found on the G: Drive, under forms and documents, and is attached here as attachment A. 2. Competency a. A suspect must be competent to waive his/her rights prior to police questioning. The question of competency is a question of fact to be determined by the circumstances in each case. b. The competency issue is more likely to be raised under the following circumstances: i. If the suspect is distraught or very disturbed because of mental health or emotional condition; ii. If the suspect has been wounded or is the victim of shock or other physical impairment; iii. If the suspect is so intoxicated or influenced by alcohol or drugs that [s]he cannot think rationally or act sensibly; or iv. If the suspect’s intelligence level is so low, or his/her learning and education levels are so minimal, or if the person is developmentally disabled that [s]he does not have the capacity to comprehend his/her rights.