HomeMy WebLinkAbout41K-Interrogating Detainees and Arrestees 2019
Policy & Procedure Page 1 of 11
Lexington Police
Department
Subject: Interrogating Detainees and
Arrestees
Policy Number:
41K Accreditation Standards:
Reference: 1.2.3(b)(c);42.2.10 (a-f); 44.2.3 Effective Date:
3/11/13
New
Revised
Revision
Dates:
1/24/19
By Order of: Mark J. Corr, Chief of Police
The Municipal Police Institute, Inc. (MPI) is a private, nonprofit charitable affiliate of the
Massachusetts Chiefs of Police Association. MPI provides training and model policies and
procedures for police agencies. This policy is an edited version of MPI Policy 1.13,
“Interrogating Suspects and Arrestees.”
GENERAL CONSIDERATIONS AND GUIDELINES
Interrogations of persons in police custody must conform to the standards set forth in
the Miranda decision as well as due process. A suspect must knowingly, intelligently
and voluntarily waive his/her rights to this constitutional protection before the
interrogation can begin.
Critical elements to be considered before determining if Miranda applies include
whether the environment is coercive and if the person being questioned is free to leave.
It is important to understand that Miranda procedures only apply if both of the following
situations are present:
• A person is in police custody or is otherwise deprived of his/her freedom of
movement in a significant manner; and
• There is police questioning or its functional equivalent, including any words
or actions that are reasonably likely to elicit an incriminating response.
A suspect can stop any police questioning at any time by invoking his/her right to
remain silent or by requesting the services of an attorney.
"Spontaneous" statements made to the police before, during or after the arrest by a
person in custody are admissible into evidence even though the arrested person was
not warned of his/her rights, provided that such statements are voluntary and are not
made in response to police questioning or other actions designed to elicit a response.
It is the policy of the Lexington Police Department that:
A person in police custody shall be given their Miranda rights prior to any
police interrogation; and
The due process rights of persons in custody will be respected.
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PROCEDURES
A. Definitions
1. Custody: When a person is under arrest, or deprived of his/her freedom
in a significant manner.i (The terms arrestee and detainee may be
used).
2. Interrogation: Express questioning of a suspect about a crime or
suspected crime as well as any words or actions on the part of the police
that the officers should know are reasonably likely to elicit an
incriminating response.ii
B. Providing Miranda Warnings [1.2.3(b)]
1. If officers wish to interview or interrogate a person who is in custody or
deprived of his/her freedom in a significant way, officers are obligated to
give Miranda warnings prior to such interrogation.
a. The Miranda warnings shall be read from a preprinted card or form
in a clear and unhurried manner prior to questioning.
b. Persons who do not speak English must be given these warnings
in a language that they understand.
c. Sample Miranda Warning Language:
You have the right to remain silent;
If you choose to speak, anything you say may be used
against you in a court of law or other proceeding;
You have the right to consult with a lawyer before
answering any questions and you may have him present
with you during questioning;
If you cannot afford a lawyer and you want one, a lawyer
will be provided for you by the Commonwealth without
cost to you;
• Do you understand what I have told you?
• You may also waive the right to counsel and your right to
remain silent and you may answer any question or make
any statement you wish. If you decide to answer
questions, you may stop at any time to consult with a
lawyer.
2. Detainees undergoing the booking process shall be given Miranda
warnings during the booking procedure, even if they were previously
provided.
3. If there is any substantial delay between the Miranda warnings and the
police questioning, the suspect shall be advised of these rights again
before the questioning begins.
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4. Whenever an officer has any doubt as to the applicability of Miranda then
the warnings should be given to the detainee to avoid subsequent legal
issues regarding admissibility of statements obtained.
5. If, at any time, a suspect requests to read his/her rights or to be informed
of his/her rights, these requests shall be granted.
6. Juveniles [44.2.3]
a. Before a juvenile from the ages of 7 and not yet 18 is questioned,
the Miranda warnings shall be given in the presence of the juvenile
and his/her parent, guardian or other interested adult. The adult
must acknowledge that [s]he understands the rights and the
juvenile must be given the opportunity to have a meaningful
consultation with the adult. See Department policy 44B-Handling
Youthful Offenders.
b. When the juvenile is under the age of fourteen, it is mandatory
that a parent or interested adult be:
i. Present
ii. Understands the Miranda warnings, and
iii. Has the opportunity to privately explain the rights to the
juvenile.
c. There are two situations in which the law permits a juvenile (age
14, 15, 16 and 17) to be lawfully subject to police custodial
interrogation.
i. The juvenile had an opportunity to consult with an
interested adult (Commonwealth v. A Juvenile, 389 Mass.
128 (1983), or
ii. Interrogations involving a juvenile, who has reached the
age of 14 without the opportunity of an interested adult
being present, require a demonstration of a high degree of
intelligence, experience, knowledge or sophistication on
the part of the juvenile.
C. Non-Miranda Situations
1. Spontaneous Statements
Officers may note and use any spontaneous and volunteered
statements. When a suspect or detainee voluntarily makes a statement,
officers do not have to prevent him/her from continuing to talk and the
Miranda warnings are not a prerequisite for admissibility of any such
statements in evidence at court until and unless custody occurs and
follow-up questions are presented.
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a. Spontaneous and volunteered statements are statements made by a
suspect of his/her own free will and not made in response to police
questioning.
b. A person who voluntarily enters a police station and makes
incriminating statements need not be given the Miranda warnings.iii
c. Spontaneous and volunteered statements may be taken after the
suspect is in custody and before, during, or after actual interrogation
so long as the statements are clearly voluntary.
2. Investigatory Stop and Frisks:
Non-custodial preliminary or investigative questioning need not be
preceded by Miranda warnings.iv See Department policy 41L - Stop and
Frisk and Threshold Inquiries.
3. Non-Law Enforcement Questioning
Miranda does not apply to statements made in response to questioning
by private citizens, unless the private citizen is acting on behalf of the
police. For a citizen to constitute an agent of the police, the police must
request or encourage the citizen’s help.v Thus, where a fellow detainee
initiates questioning about a crime in hopes of trading information for a
lighter sentence, any statements made are admissible if the police
neither encouraged nor sought the detainee’s assistance.vi
4. Traffic Violations or Traffic Collisions
a. A person need not be given Miranda warnings if [s]he has been
stopped for violating civil motor vehicle infractions.vii
b. An officer’s request that a motorist perform field sobriety tests does
not require that Miranda warnings be given.viii
D. Waiver of Rights
1. Valid Waivers/Safe Harbor Rule
a. Statements made by an arrestee more than six hours after the arrest
(safe harbor period) are inadmissible unless the arrestee has been
arraigned or has made a valid written waiver of his/her right to be
arraigned without unreasonable delay.ix
i. If the arrestee is incapacitated due to a self-induced disability
(such as the use of drugs or alcohol) the six-hour safe
harbor period does not begin until the disability terminates.x
ii. The six-hour period is also tolled (i.e., suspended or
extended) when interrogation is not possible or must be
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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.
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c. In any of the circumstances enumerated above, the court will carefully
scrutinize any waiver obtained.
3. Assessing Competency Prior to Interrogation
After Miranda Rights have been administered and after the suspect has
shown an initial willingness to waive those rights, the police may ask the
suspect about the following in order to properly assess the suspect's
ability to intelligently understand and waive his/her rights:
a. The detainees age;
b. If under the influence of any drugs or alcohol;
c. Is suffering from any mental or emotional problem;
d. His/her education and learning;
e. His/her employment;
f. Whether [s]he has ever been given Miranda warnings previously; and
g. Understands the words used by the officer in reciting the Miranda
warnings and what they mean.
E. Access to Counsel [1.2.3(c)]
1. Request for Counsel
a. If a detainee requests consultation with an attorney:
i. Questioning by police must stop until there has been an
opportunity to consult an attorney.
ii. If the suspect initiates statements or conversation, the police
may respond to those statements or conversation, but
should refrain from asking additional questions.
b. If a detainee has voluntarily waived his/her right to remain silent, [s]he
may still invoke this right at any time by refusing to answer questions
or by requesting an attorney. If this happens police questioning must
cease.
c. A detainee may answer some questions and refuse to answer others.
The officer is not required to discontinue questioning unless the
suspect indicates that [s]he wishes to invoke their right to remain
silent or to stop questioning or consult with a lawyer.
2. Representation by Counsel
a. If the police are aware that the suspect is represented by an attorney,
even on other matters, and that the attorney desires to be present
with his/her client during any questioning, the police must inform the
suspect that his/her attorney wishes to be present during questioning.
b. Once so informed, the suspect may waive his/her right to have his/her
attorney present.
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3. Post Arraignment: Once a suspect has been arraigned, the suspect has
an absolute right to counsel, while in custody or otherwise. Questioning
in the absence of counsel cannot take place unless initiated by the
person to be questioned and after a waiver of the right to counsel is
obtained.
F. Setting of the Interrogation
1. Generally
a. An interrogation is a controlled process, controlled by the officer
conducting the interrogation. It should be conducted in a setting
that provides a degree of privacy as well as safety and security for
the officer and the suspect as well.
b. All rooms used for conducting interrogations including rooms
designated for this purpose shall be inspected for security issues
prior to bringing the suspect into the room and conducting the
interview. [42.2.10(b)]
2. Designated Interview Room: The designated room is located on the
second floor, at the end of the hallway on the right side. The doorway to
enter this room is between the Prosecutor’s office and the office for the
Family Services officer and School Resource officer. The door is labeled,
“INTERVIEW ROOM.” [42.2.10]
a. The interview room should be sparsely furnished with chairs for
the officer(s) and suspects, and a small table.
b. If a telephone is in the room, the ringer should be switched off.
c. Writing materials, department forms, recording equipment and
media will be maintained in the interview room. [42.2.10(e)]
d. Other items should not be left in the interview room.
e. Weapons must not be allowed inside of the interview room.
[42.2.10(a)]
i. Persons being interrogated should be pat-frisked for firearms
and other weapons prior to being admitted into the
interview room.
Commonwealth vs. McNulty, 458 Mass. 305 (2010) [Key Points] [1.2.3(c)]
When a suspect is in custody & is being interviewed (or is about to be interviewed), and an attorney calls to
inform investigators that he or she represents the suspect & wants to speak with the suspect, police have an
obligation to transmit the message. The attorney should be connected immediately with someone who has
access to those conducting the interrogation or interview.
Police officers should make a record of their communication of an attorney’s message to a suspect. Where
the interview is being recorded, the officers’ relaying of the message and the suspect’s decision to continue or
terminate the interview should be captured on the tape.
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ii. Police firearms should be secured in a designated firearm
locker outside of the room. [42.2.10(b)]
3. Personnel: Both uniformed and non-uniformed officers will adhere to the
entirety of this policy. [42.2.10]
a. Usually, no more than two officers should be present during an
interrogation. [42.2.10(c)]
b. Live audio and video capability is available for other officers to
observe an interrogation even if it is not recorded.
c. Interrogations should never be conducted by a single officer without
a back-up officer readily available in the event that the interviewing
officer needs help.
4. Means of Summonsing Assistance [42.2.10(d)]
a. If two officers are conducting an interrogation, no other backup
officers are required. Depending on the suspect, additional
backup officer(s) may be advisable.
b. A backup officer shall be located in the immediate vicinity of the
interrogation, within audible distance, for the duration of the
interrogation, in the event that the interviewing officer(s) summons
assistance.
c. Live audio and video is available for other officers to observe an
interrogation for the safety of the officer(s) conducting the
interrogation.xvi
d. Police radios may be used to summons assistance in certain areas
of the building.
5. Breaks: If an interview or interrogation is of long duration, officer(s) must
make arrangements for access to restrooms, water, and provide for other
comfort issues while continuing to provide for the security and safety of
all parties involved. [42.2.10(f)]
G. Documenting Statements and Confessions
1. Recording Requirements
a. In Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), the
Supreme Judicial Court has expressed a preference that
interrogations conducted in a custodial setting be recorded
whenever practicable.
b. In the absence of recording the court will issue jury instructions
that jurors “should weigh evidence of the defendant’s alleged
statement with great caution and care.”
c. This jury instruction is required regardless of the reason that the
police did not record the interrogation. Failure to record may
create an unnecessary burden for the prosecution.
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2. Recording Interrogations
a. Officers shall video and or audio record all suspect interrogations
whenever possible.
b. Before recording an interrogation, the suspect shall be notified that
the conversation will be recorded.xvii
3. Suspect Refusal to be Recorded
In the event a detainee refuses to be recorded, the refusal should be
documented (on the recording if possible) and then the recording
equipment will immediately be stopped. The refusal will be documented
by:
a. The investigating officer in his/her written report.
b. Asking the suspect to sign a refusal form and/or by having the suspect
include in any written statement his/her refusal to be recorded.
4. Note Taking
a. Notes should be taken in a manner that does not interrupt the
interviewing process. Some interviewees are reluctant to talk if
they notice that the officer is taking down every word they say.
b. Brief notes can be made without deterring or distracting the
interviewee. However, if a statement appears highly informative
due to its nature and content, a verbatim account should be made.
5. Written Statement or Confession
a. Obtain a written statement from the witness/victim, if appropriate.
b. The preferred method is to have the Department’s “Voluntary
Statement” form completed. The voluntary statement form
includes the following necessary information:
i. Name of the writer,
ii. Writer’s age and address, and
iii. Date and writer’s signature.
c. The detainee should recount the incident in his/her own words.
d. The detainee should review the statement; correct and initial any
errors, and sign and date the statement when complete.
e. The interrogating officer(s) shall sign the statement or confession
as witnesses.
f. If the person giving the statement cannot write the statement due
to injury, illiteracy, or other reason, the statement may be dictated
and written, word for word, by a companion, or by a police officer.
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6. Transcribed Statement
a. Types of Transcribed Statements
i. An oral statement transcribed from a recorded interview is
preferred.
ii. A statement may also be transcribed by writing down the
suspect’s words as the statement is being dictated.
b. Written Statements or Confessions as Evidence
i. The transcribed statement shall be reviewed by the person
who gave the statement, any errors or omissions corrected,
and then signed by that person.
ii. The interrogating officer(s) shall sign and date all written
statements and confessions.
H. Conducting the Interview or Interrogation
1. Beginning the Interview
a. At the beginning of the recorded interview, verbally record the
following:
i. The name(s) of officers present during the interview.
ii. Date and time of the interview.
iii. The location of the interview.
iv. The name of the witness being interviewed.
b. If the interview is not being recorded, the information shall be
recorded in writing.
2. Conducting the Interview
a. Ask the person being interviewed to fully describe the incident.
b. Ask specific questions to clarify the statement or to fill in any
omissions or unknowns.
c. Note:
i. Any relationship or connection the suspect might have with
the victim, other perpetrator or the property or premises
involved in the crime;
ii. The overall credibility of the witness/victim;
iii. His/her opportunity to make observations; and his/her ability
to recall details as opposed to general impressions, etc.
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3. Observations: Observe and note any emotional outbursts, inflections of
the voice and nervous reactions that may indicate areas requiring further
probing or clarification.
4. Terminating the Interview: Interviews should be ended in a courteous
manner. It may be necessary in the future to conduct a second or
subsequent interview therefore ending the first interview in good standing
is important.
5. Documenting the Interview
The circumstances surrounding the conduct of interrogations and
recording of confessions shall be fully documented. This includes:
a. Location, date, time of day and duration of interview;
b. Identities of officers or others present;
c. Miranda warnings given, suspect responses and waivers provided, if
any; and
d. The nature and duration of breaks in questioning to provide the
suspect food, drink, use of the restroom, or for other purposes.
i Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)
ii Com. v. Morse, 427 Mass. 117, 691 N.E.2d 566 (1998)
iiiOregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711 (1977)
iv See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966); Com. v. Podlaski, 377 Mass.
339, 398 N.E.2d 1379 (1979)
v Massiah v. U.S., 377 U.S. 201, 84 S.Ct. 1199 (1964)
vi Com v. Gajka, 425 Mass. 751, 682 N.E.2d 1345 (1997)
vii Berkemere v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984)
viii Com. v. Wholley, 429 Mass. 1010, 709 N.E.2d 1117 (1999); See also, Vanhouton v. Com.,
424 Mass. 327, 676 N.E.2d 460 (1999)
ix Com. v. Rosario, 422 Mass. 28, 661 N.E.2d 71 (1996)
x Com. v. Rosario, 422 Mass. 28, 661 N.E.2d 71 (1996)
xiCom. v. Rosario, 422 Mass. 28, 661 N.E.2d 71 (1996)
xii Com. v. Nom, 426 Mass. 152, 686 N.E.2d 1017 (1997)
xiii Com. v. Nom, 426 Mass. 152, 686 N.E.2d 1017 (1997); Com. v. Hooks, 38 Mass. App. Ct.
301, 647 N.E.2d 440 (1995)
xivCom. v. Roy, 2 Mass. App. 14, 307 N.E.2d 851 (1974)
xvCom. v. Hosey, 368 Mass. 571, 334 N.E.2d 44 (1975)
xvi M.G.L. c. 272, s. 99(D)(e)
xvii M.G.L. c. 272, s. 99