Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

On December 8, 2007, I posted a blog entitled "Police Interrogations Should Always Be Tape Recorded."  Around that same time, an article appeared in the "Florida Defender" (a publication of the Florida Association of Criminal Defense Lawyers (FACDL)) which stated that FACDL had been trying for several years to get the Florida legislature to pass a law requiring the mandatory recording of police interrogations.  Finally, in 2006, FACDL's bill was calendared for hearing.  However, it was subsequently withdrawn from the calendar when more than twenty Florida sheriffs showed up in Tallahassee to speak against the bill.

In arguing for the mandatory recording of police interrogations, the author of the article (A. Russell Smith), concluded by stating:

"The FBI recommends that local law enforcement agencies record all felony interrogations.  More than 5,000 state and local jurisdictions now require felony interrogations to be recorded.  As best we can determine, no jurisdiction that has adopted a compulsory recording policy has ever rescinded that policy or abandoned the practice.  Sheriffs, police chiefs, prosecutors and judges in jurisdictions where recording is required uniformly praise it.  It is time for Florida to adopt the practice."

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The answer is yes, the police are allowed to lie to you to get you to confess.  The law in Florida is that the use of tricks or factual misstatements by the police do not by themselves make a confession involuntary. 

For instance, in one Florida Supreme Court case called Burch versus State of Florida, an individual accused of murder was questioned by the police for more than five hours.  During those several hours, the police presented false evidence to Mr. Burch in order to get him to confess.  He was also given a false polygraph test and then told that he had failed that test.  Eventually Burch confessed to the murder. 

Burch later tried to get his confession thrown out by arguing that the tricks used by the police were illegal and that such tricks caused him to confess involuntarily.

In rejecting Burch's argument, the Florida Supreme Court pointed out that Burch was fully advised of his Miranda rights, he never asked to leave the sheriff's office, he never asked for a lawyer, he never asked the police to stop questioning him, and he was not physically coerced by the police.

It is because of cases like this that I almost always advise people not to speak with the police but to instead have their lawyer do their talking for them.

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On February 10, 2008, I posted an article entitled "When Are Miranda Warnings Required?"  In that article, I stated that the police are required to give a person Miranda warnings only when that person is in custody and is being interrogated by the police.  After writing that article, I came across a recent Florida case which seems to contradict the United States Supreme Court's decision in Miranda v. Arizona.

In State v. Busciglio, Mr. Busciglio was arrested for DUI and then taken to a police facility where he was asked to blow into a machine in order to determine the amount of alcohol in his breath.  Mr. Busciglio refused to blow and later argued that he had the right to consult with a lawyer before deciding whether to blow.

It would seem that Mr. Busciglio had a good argument because he was clearly in custody and because it would appear he was being interrogated by the police when the officer asked him whether he would agree to blow into the machine.

However, the Florida appellate court that decided his case rejected Mr. Busciglio's argument.  The Court said that whenever a person exercises his privilege to drive in Florida he thereby impliedly consents to give a sample of his breath if requested to do so by a police officer.  That being the case, "[a]sking a defendant to comply with conduct he has no 'right' to refuse does not invoke any degree of coercion associated with impermissible interrogation."  And because Mr. Busciglio was not being interrogated when asked to blow into the machine, the Court ruled, the police officer was not required to give him Miranda warnings at that particular moment.

Although the United States Supreme Court's decision in Miranda v. Arizona appears straightforward at first blush, cases like Mr. Busciglio's demonstrate the confusion that often surrounds the day-to-day application of the Miranda decision.

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Many people who have grown up watching TV mistakenly believe that the police must always give a person Miranda warnings as soon as they begin speaking with him. 

From watching television, many people know that Miranda rights include the following:

1. You have the right to remain silent—you do not have to talk.

2. What you say can be used and shall be used against you in a court of law.

3. You have the right to talk with an attorney before you talk with us, and you have the right to have the attorney present during the time we are talking to you.

4. If you do not have the funds to employ an attorney, one shall be appointed to represent you free of charge.

5. Do you understand these rights as I have explained them to you, yes or no?

6. Do you want to talk to us about your case now, yes or no?

7. Do you want an attorney present during the time we are talking to you, yes or no?

However, the police are required to give a person Miranda warnings only:

a.  When a person is in custody; AND

b.  When the police are questioning that person.

Therefore, if the police arrest someone but decide not to question him, they do not have to give him Miranda warnings.

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All police interrogations should be tape recorded so that there is an accurate record of what was said both by the suspect and by the police.  The following story about one particular interrogation illustrates this point: 

NEW YORK (AP) -- A teenage suspect who secretly recorded his interrogation on an MP3 player has landed a veteran detective in the middle of perjury charges, authorities said Thursday.

Unaware of the recording, Detective Christopher Perino testified in April that the suspect "wasn't questioned" about a shooting in the Bronx, a criminal complaint said. But then the defense confronted the detective with a transcript it said proved he had spent more than an hour unsuccessfully trying to persuade Erik Crespo to confess - at times with vulgar tactics.

Once the transcript was revealed in court, prosecutors asked for a recess, defense attorney Mark DeMarco said. The detective was pulled from the witness stand and advised to get a lawyer.

Perino, 42, was arraigned Thursday on 12 counts of first-degree perjury and faces as many as seven years on each count, prosecutors said. He was released on $15,000 bail.

His attorney did not immediately respond to a telephone message seeking comment Thursday. A New York Police Department spokesman declined to comment.

The allegations "put the safety of all law-abiding citizens at risk because they undermine the integrity and foundation of the entire criminal justice system," District Attorney Robert Johnson said in a statement.

Perino had arrested Crespo on New Year's Eve 2005 while investigating the shooting of a man in an elevator. While in an interrogation room at a station house, Crespo, then 17, stealthily pressed the record button on the MP3 player, a Christmas gift, DeMarco said.

After Crespo was charged with attempted murder, his family surprised DeMarco by playing him the recording.

"I couldn't believe my ears," said the lawyer, who decided to keep the recording under wraps until he cross-examined Perino at the trial.

Prosecutors then offered Crespo, who had faced as many as 25 years if convicted, seven years if he pleaded guilty to a weapons charge. He accepted.

Certainly the police officer in this case would not have lied under oath had this interrogation been tape recorded. Moreover, if all interrogations were tape recorded, juries would not have to decide who to believe if a defendant testifies that he said one thing while the police testify that he said something else. Fortunately, some states, such as Minnesota, have seen the need for reform and now require that all interrogations be tape recorded. Hopefully, other states will require the same in the near future.

Florida criminal lawyer Ronald Chapman has been representing people accused of committing crimes since 1990. You can read more about Mr. Chapman’s experience as a Florida criminal attorney as well as review news articles about some of his cases.  Some of the types of cases and issues that Mr. Chapman has handled since 1990 include:

• Death Penalty Cases
• Assault and Battery Cases
• DUI Cases
• Drug Cases
• Sex Crimes Cases
• Sealing & Expunging Criminal Records
• Bond|Bail
• Mistaken Identification and Wrongful Conviction
• Police Interrogations
• Sentencing

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