Doublespeak | Suite101.com

Here is what I ponder this week: an individual is arrested for some specific crime. On his way to the station in a patrol car, the suspect is "encouraged" to talk about his alleged crime. Thereafter, suspect gives a full-blown confession. The recipient officer knows that suspect has not been Mirandized i.e. advised of his right to an attorney, and his right to remain silent.

Subsequently, when they get to the police station, suspect is taken to an interview room where he is properly Mirandized. And suspect, not surprisingly, agrees to provide a written confession. Should this man's statement be admitted into evidence at his subsequent trial?

Well, the rule, as provided by the United States Supreme Court, courtesy of Oregon vs. Elstad, 470 US 298 (1985), is this: the self-incrimination clause of the Fifth Amendment does not demand suppression of a statement made after proper Miranda warnings, just because law enforcement had already secured an earlier voluntary - but unwarned - confession from an accused.

In other words, our fine men and women in blue, or whatever color they wear in your town, get two bites at the apple. It is perfectly legal for suspects to be told that they may be facing, say 50 years for this crime or life or whatever, so you'd better help yourself and spill it, to convince the arrestee to talk. The problem I see is the very fact that the person is under arrest. And this is textbook law.

If a person is under custodial interrogation, i.e. arrest, the arresting officer is required to read him his rights. Granted, both requirements must be satisfied. If a suspect is in custody, but he is not being interrogated, Miranda is not involved. Likewise, if a person is being questioned, but he is not in custody, warnings are not necessary.

This backdoor, double-handed 'shading' of the Constitution raises troubling hairs on my head - especially when there is a simple enough way to eradicate it. When a person is under arrest, read them their rights. See. Simple.

Another question, then, comes to mind. Why would an officer go through all of this game-playing when he or she could play it straight and, perhaps still secure a confession? One suggestion is that if you 'warn' a suspect, he or she may be a lot more hesitant to give up the goods. Then law enforcement would have to find another way to secure evidence. More work, probably, but a more constitutionally comfortable, and legitimate method of conducting criminal business.