For too long, a suspect's rights to know when he or she is being interrogated and to have an attorney's presence at police-orchestrated questioning have been brushed aside so that detectives can devise a ruse to coerce a confession, Paul Townsend and Sarena Townsend write.
With the increasing popularity of television shows and movies about the criminal justice system, Miranda warnings have become thoroughly enmeshed in American culture. Virtually everyone knows that there are certain warnings police must give you if they bring a suspect down to the precinct for interrogation or to take a statement. A person has the right to remain silent, the right to have an attorney present during questioning, and to know that statements made may be used against the suspect at trial. Our society takes for granted that the police know and respect the rules which dictate that every suspect has to be advised of these rights before an interrogation and that if the suspect declines to waive those rights, that the police must stand down.
But what if the police could get around these rules? What if they could find a way to elicit incriminating information from you, and even record it, without your knowledge that you are being interrogated and without giving you those Miranda rights? This is the basis of the "controlled call."
In essence, if a person walks into a police precinct and alleges that he or she is the victim of a crime, one technique commonly used by detectives is to coach that complainant on how to speak to the person being accused, and to then have that complainant call the suspect while the detectives listen in and record the entire call.
Before calling, detectives instruct the complainant how to get the suspect to admit to some sort of wrongdoing, to apologize or to acknowledge the caller's version of events that form the basis of the allegations. Meanwhile, the person on the other end of the phone—the suspect—has no idea that fundamentally they are speaking to detectives who have, through the accuser, engineered the conversation to obtain their desired confession.
Despite the fact that the suspect has no idea that the police are not only involved in the substance of the call but are also recording it, these recordings will then become admissible in court as evidence of guilt. Technically, though the accuser is acting as a de facto detective, the questions come from the accuser's mouth rather than from someone in law enforcement, circumventing the Miranda requirement. There are multiple serious issues with this.
First, the whole purpose behind Miranda warnings is to apprise suspects subject to law enforcement questioning that their statements are being made on the record and to provide them an opportunity to exercise their constitutional right to counsel should they so desire. Controlled calls abrogate that right through the thin veneer of using a civilian to conduct the interrogation under the guidance of police detectives present in the room. But there should be no difference between answering questions directly to a detective or somebody asking questions a detective instructs them to ask while police listen in. This is a clear violation of the spirit of Miranda.
Second, the gravity of a formal interrogation conveys to the suspect the importance of being crystal clear and choosing one's words carefully to avoid any misunderstandings. On the other hand, it is human nature during a conversation with an acquaintance or romantic partner to be collegial, provide comfort or attempt to alleviate negative interactions when someone informally accuses a person over the phone of some act that the accused may or may not have committed. Often, people can be led to apologize for a perceived misstep or infraction even if the individual committed no crime at all. People can be led to apologize to placate, mediate or simply get someone off the phone. That can be framed at trial as an admission of guilt when, had the accused known the real purpose behind the conversation or the fact that detectives were "controlling" the call, they would never admit to such conduct. Consequently, there is significant reason to doubt the accuracy of the information obtained through controlled calls.
Controlled calls are very frequently used in situations where the police are unable to uncover evidence to support an accusation. Claims of domestic violence or sexual assault frequently occur when there are no other witnesses and no physical evidence to corroborate a complainant's story. In those circumstances, often the only evidence a detective can gather is the unwitting statements made by the suspect, which will later be deemed a confession. It is critical, then, that a person be aware that he or she is being interrogated and not simply engaging in a therapeutic conversation with someone simply voicing feelings.
Proponents of controlled calls claim that the protections codified under Miranda are not being violated because the recipient of the phone call is not in custody, and is under no obligation to engage in the conversation. But that is precisely why these calls are so pernicious. The fact that detectives are able to surreptitiously record these conversations and can coach the caller on exactly how to maneuver the conversation to result in incriminating statements has the extreme potential for abuse. For too long, a suspect's rights to know when he or she is being interrogated and to have an attorney's presence at police-orchestrated questioning have been brushed aside so that detectives can devise a ruse to coerce a confession. Notions of due process and the fair administration of justice cannot allow this to continue. Any and all law enforcement-arranged interrogations must be subject to Miranda warnings to ensure that individuals are only prosecuted after giving a true, knowing and voluntary confession.
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