CREATORS: Landmark Decision of Miranda v. Arizona Turns 60

Matthew T. Mangino
CREATORS
June 2, 2026

Sixty years ago this month, the U.S. Supreme Court ruled in Miranda v. Arizona that police officers are required to inform a suspect that he has the right to remain silent and the right to legal counsel when being questioned.

During the court argument, Justice Potter Stewart asked Attorney John J. Flynn, representing Ernesto Miranda, what rights an accused should be advised of while in custody. Flynn replied, "(H)e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel."

Everyone with a television or iPad has heard the words of Attorney Flynn. As I and many others have noted, the landmark Supreme Court decision has become a part of American culture. Miranda's conversion from legal holding to cultural icon is due mainly to the nation's insatiable appetite for crime dramas.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police, he confessed to raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court's opinion, holding that a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and had waived them. Warren made it clear, "If the individual indicates in any manner, at any time before or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

As we mark the sixtieth anniversary of Miranda, it is important to note that the U.S. Supreme Court has continually tested, and at times expanded and restricted, the decision.

For instance, in 1981, the Edwards rule was established. The Court held that once an accused invoked his right to have counsel present during custodial interrogation, a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the Court established a bright-line rule, finding that if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.

In 2013, in a case out of Texas, a murder suspect who answered questions for almost an hour was then asked by police if the shotgun shells found at the murder scene would match a shotgun found in his home. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect "(l)ooked down at the floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap, (and) began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence was not enough to invoke the right to remain silent.

Then in 2022, the high Court ruled that a violation of Miranda rules does not provide grounds for an individual to sue police officers for money damages for violating a suspect's civil rights under federal law.

Although revered as a landmark decision of the U.S. Supreme Court, the scope and breadth of Miranda has been somewhat diminished.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: Tinkering With The Criminal Justice System

Matthew T. Mangino
CREATORS
January 20, 2026

The U.S. Supreme Court has been busy this month tinkering with the criminal justice system. The Court rendered three decisions in five days that have implications for the Fourth, Fifth, Sixth and Eighth Amendments.

Initially, the Court, in a 5-4 ruling, rejected the government's limitations on the number of times federal inmates can challenge the legality of their sentence.

Federal habeas corpus law allows inmates to challenge, in federal court, the grounds for their detention. The Antiterrorism and Effective Death Penalty Act (AEDPA) created separate procedures for state inmates seeking relief from their state convictions in federal court and for federal inmates challenging their federal convictions.

Enacted after the Oklahoma City bombing, AEDPA created strict deadlines and deference to state courts in federal reviews, making it harder for inmates to overturn convictions while empowering federal efforts against terrorism. The AEDPA implicates the Fifth Amendment — due process for federal habeas corpus limitations; and the Sixth Amendment — fair trial rights, especially regarding counsel and evidence; and the Eighth Amendment — cruel and unusual punishment.

An unlikely majority of Justices Elena Kagan, Ketanji Brown Jackson, Sonia Sotomayor, joined Chief Justice John Roberts and Justice Brett Kavanaugh found that the AEDPA could limit opportunities for state inmates to challenge their convictions, but could not limit federal inmates from having their convictions reviewed by the court.

Five days later, the Supreme Court entertained a double jeopardy question.

The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause can be invoked to prevent a person from being tried twice for the same offense or, as in the case before the Supreme Court, being punished more than once for the same crime.

A New York man was charged in federal court with using a firearm during a robbery, a crime of violence, and causing death.

All the justices were satisfied that a century-old decision determined that the two charges counted as the same offense. The longtime test for double jeopardy was clear: "whether each provision requires proof of an additional fact which the other does not."

The unanimous decision, written by Justice Ketanji Brown Jackson, found that because using a firearm during a crime of violence does not have any elements not shared by causing death, the double jeopardy clause applies and the defendant cannot be punished for both offenses.

Finally, on the same day, the Supreme Court upheld the conviction of a Montana man who was convicted of assaulting a police officer. In another unanimous decision written this time by Justice Elena Kagan, the court ruled that police officers did not violate the Fourth Amendment when they entered the home of a man without a warrant due to an emergency in the home.

The Court rejected the man's contention that the police officers needed "probable cause" to go into his house. The Fourth Amendment to the Constitution prohibits unreasonable searches and protects a person's home by generally prohibiting law enforcement from entering without a warrant.

Under the Supreme Court's earlier cases, it was enough that the police officers reasonably believed that someone inside a home needed emergency assistance. The court rejected the need for probable cause to enter a home without a warrant and sustained an "objectively reasonable" standard.

Justice Elena Kagan wrote that the police in Montana had acted appropriately when they entered a home without a warrant because they had an "objectively reasonable basis for believing that a homeowner intended to take his own life and, indeed, may already have shot himself."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Detailed summary of each day of Mangione pretrial hearing

 Christine Savino | Cornell Law School provides a detailed summary of Luigi Mangione's pretrial hearing on JURISTnews:

Editor’s note: This is Day 9 (final day) of JURIST’s coverage of Luigi Mangione’s suppression hearings. Read Day 1, Day 2, Day 3, Day 4, Days 5-7, Day 8.

Luigi Mangione is accused of fatally shooting Brian Thompson, CEO of medical insurance company UnitedHealthcare, on December 4, 2024, outside a Manhattan hotel in New York state. He faces a nine-count indictment including second-degree murder, where he faces 25 years to life in prison, and multiple weapons offenses. Mangione was arrested on December 9, 2024, in Altoona, Pennsylvania—a city approximately 280 miles from New York City—five days after the shooting. While the arrest occurred in Pennsylvania, he is being prosecuted in New York state, where the alleged crime took place. The suppression hearings—pre-trial proceedings where a judge decides what evidence can be used at trial—determined what evidence from his Pennsylvania arrest can be used in the New York trial. Mangione pleaded not guilty to all charges in late December 2024.

The prosecution and defense completed their presentations on December 18, concluding three weeks of suppression hearings in the New York state case against Mangione. The prosecution called 17 witnesses from Mangione’s December 9 arrest in Altoona, Pennsylvania. The defense called no witnesses. No trial date was set.

Judge Gregory Carro announced the litigation calendar: defense filings are due by January 29, prosecution’s response by March 5, and Judge Carro’s ruling on May 18. Mangione’s next New York state hearing was scheduled for May 18, at which time Judge Carro may set a trial date. The approximately five-month timeline to issue suppression decisions is longer than expected, as were the suppression hearings themselves. The defense faces an uphill battle, as most motions to suppress are denied.

Assistant District Attorney Joel Seidemann pushed for a trial date, stating that Brian Thompson’s mother is 77 years old, and it “is important to the family of the victim to be able to know…whether or not this is the person who shot their son.” Upon Assistant District Attorney Seidemann’s request, there was a sidebar regarding scheduling. Defense counsel briefly conferred with Mangione, after which Attorney Marc Agnifilo told Judge Carro, “we spoke with our client, and he is willing to let us have proceedings, on the record, without you being present.” Mangione waived his right to be present during the private scheduling discussion, as defendants are not permitted to participate in these conversations.

Mangione appeared tense during the private discussion, unlike the first day of hearings when he smiled often.

Attorney Karen Friedman Agnifilo challenged whether the prosecution had fully complied with discovery obligations—the requirement that both sides share evidence with each other. She cited a December 17, 2024 press briefing where New York Police Department (NYPD) Chief of Detectives Joseph Kenny described a conversation with Mangione’s mother, Kathleen Mangione:

She didn’t indicate that it was her son in the photograph, but she said it might be something that she could see him doing. So that information was going to be passed along to the detectives the next morning, but fortunately we apprehended him before we could act on that.

This statement was widely published by major news outlets including Fox News, People, and CBS News. The defense described the statement as an “unfounded claim” that was “widely quoted by numerous news outlets” in a November filing.

Attorney Friedman Agnifilo then referenced discovery documents that contradicted Chief Kenny’s public statement. The documents said: “Kathleen [Mangione] stated that Luigi has not made any suicidal statements and was not a risk to himself or others.” She argued Chief Kenny’s statement was “the opposite of what was said, and we didn’t get the opportunity to cross-examine Officer Diaz regarding this,” referring to NYPD Detective Oscar Diaz, a Manhattan South Homicide Squad detective. She requested that the prosecution “retract that statement, because that was never said by Mr. Mangione’s mother.”

Attorney Friedman Agnifilo argued that the defense was not granted a Dunaway hearing—a New York-specific suppression hearing used to determine whether a defendant’s statements or evidence were obtained as the result of an unlawful seizure or detention, in violation of the Fourth Amendment and New York State Constitution. She stated the defense intended to cross-examine NYPD Detective Oscar Diaz on whether the statement was part of probable cause.

Assistant District Attorney Seidemann countered that the statement was made a year ago and not relevant to Mapp or Huntley hearings—pre-trial suppression hearings under New York law that determine whether evidence was obtained legally.

Judge Carro appeared to side with the prosecution, stating, “most of the video was relevant to the hearing, and the People did say that they would make any Altoona or NYPD officers available if you want to call them.”

In a press conference outside the Manhattan Criminal Courthouse, Attorney Friedman Agnifilo, surrounded by the defense team, stated that the hearings “unnecessarily” extended into three weeks when “we were told this was going to be several days.” She stated that “it was only after Lieutenant Leonardi testified about the illegal wiretap of Mr. Mangione in Altoona, Pennsylvania, that they withdrew statement notice, and now suddenly we’re not going to have the lead case detective in this case.”

“We want the New York Police Department or the San Francisco Police Department or the Manhattan District Attorney to correct this very prejudicial statement that was never said,” Attorney Friedman Agnifilo stated before ending the press conference.

If the prosecution cannot provide evidence of the statement, they will not be able to present it at trial. However, this would likely not affect probable cause, which was the focus of the suppression hearings.

One point of contention during the hearings was whether New York or Pennsylvania law applied. Mangione was placed into custody in Altoona, Pennsylvania for forgery and related Pennsylvania charges, although New York officers quickly arrived, believing Altoona authorities may have apprehended the shooting suspect. Blair County District Attorney Pete Weeks stated:

There appears to be confusion with the media because New York law is different than Pennsylvania law. My office has argued in filed public documents and continues to assert that Altoona police officers lawfully arrested Mr. Mangione for crimes he allegedly committed in Pennsylvania in the presence of the officers…Because of his arrest, he and his property were then subject to a legal warrantless search incident to arrest allowed under Pennsylvania law and his property was then subject to an additional lawful inventory search as well.

Throughout three weeks of proceedings, Mangione frequently exhibited animated facial expressions, particularly furrowing his eyebrows when seemingly confused or frustrated. His relationship with the press appeared strained—he previously yelled at reporters for being “out of touch” with the “American people.” During testimony from SCI Huntingdon Corrections Officer Thomas Rivers—who stated that Mangione asked him about media perception—Mangione briefly put his head in his hand before returning to his usual demeanor.

The defense argued that suppression exhibits should be sealed from the media until trial. Judge Carro partially denied the motion, reasoning that “since this is a suppression hearing, and the court has not ruled whether this evidence will be admitted at any trial, sealing would prevent substantial possibility that the defendant’s right to a fair trial would be harmed.”

Mangione’s next hearing is scheduled for January 9, 2025, where he will appear before Judge Arun Subramanian at 40 Foley Square in New York for his federal case, United States v. Mangione. The defense has moved to challenge the constitutionality of Mangione’s death penalty. Like in his New York state case, the defense has also moved to suppress evidence due to the warrantless search and statements under Miranda. Additionally, the defense has moved to dismiss Counts 3 (murder through the use of a firearm) and Count 4 (firearms offense), which are based on the same facts and evidence as the New York state indictment.

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Creators: The Turbulent 1960s Continue to Shape America's Criminal Justice System

Matthew T. Mangino
CREATORS
August 26, 2025

The 1960s were turbulent. The nation was in the midst of two wars. First, the Cold War with the Soviet Union and later the Vietnam War. Former President John F. Kennedy was assassinated in 1963, Martin Luther King was killed in 1968 as well as President Kennedy's brother, and presidential candidate Robert F. Kennedy. There was racial unrest and anti-war protests. The tumult of the 1960s changed America forever.

During the 1960s, the U.S. Supreme Court also experienced a tumultuous evolution. Starting in 1961, the U.S. Supreme Court made a series of decisions regarding the rights of criminal defendants that still reverberate today. Starting with the decision of Mapp v. Ohio, the court issued four decisions that continue to be analyzed, interpreted and adjusted more than 60 years later.

Dollree Mapp refused to let the police enter her house without a warrant. The police returned several hours later with a document purported to be a warrant — it was not. They entered her home, found some illicit material and arrested her. She unsuccessfully challenged the evidence at trial. On appeal, the Supreme Court found in her favor and extended the "exclusionary rule" to state prosecutions.

The exclusionary rule prohibits the police from using evidence illegally obtained. The rule is the primary impetus behind improvements in police training and the general protection of individual constitutional rights.

Ironically, the late Justice Antonin Scalia cited "increasing professionalism of police" as a reason for the exclusionary rule's obsolescence.

Scalia's argument didn't make sense then and doesn't make sense today. Without the exclusionary rule, an individual's constitutional rights would be ignored. Law enforcement training would turn on a dime. Without constitutional guardrails, police would turn a blind eye to individual rights with impunity.

In 1963, the court decided Gideon v. Wainwright. The landmark decision held that state criminal courts must provide counsel to defendants in criminal cases without cost if they cannot afford an attorney. Although most states were already providing free legal counsel to defendants facing a charge that could result in a prison sentence, Florida and a handful of other southern states were not.

Two years later, the court decided Miranda v. Arizona and incorporated Gideon into the decision. The decision requires the police to inform a suspect who is in custody that he has the right to remain silent and the right to an attorney.

Although the Miranda warnings are etched in nearly everyone's consciousness, the decision is still evolving. Little more than a decade ago, a murder suspect in Texas who answered questions for almost an hour was then asked about some incriminating evidence. The suspect stopped talking.

The police made notes of his conduct once he stopped talking. According to the Supreme Court, the suspect "(l)ooked down at the floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap, (and) began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court found that silence is not enough to invoke the right to remain silent.

Finally, in 1968, the Supreme Court decided Terry v. Ohio. The court found that it was not an illegal search and seizure if a police officer with "reasonable suspicion" — more than just a hunch — stops a suspect on the street, asks her to identify herself and pats her down for a weapon.

As the U.S. Supreme Court has moved right, these landmark decisions are being tested. Without constitutional guardrails, police could turn a blind eye to individual rights with impunity.

The right to remain silent; the exclusion of illegally obtained evidence; limits on stopping individuals without adequate suspicion; exemplify the integrity of our criminal justice system — even strong evidence of guilt cannot be used if police violated the Constitution to get that evidence.

The 1960s continue to have an impact on the Supreme Court and, more importantly, on the fundamental rights of those accused of a crime.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: The End May Be Near for Miranda v. Arizona

Matthew T. Mangino
CREATORS
June 24, 2025

Nearly 60 years ago, U.S. Supreme Court Justice Potter Stewart asked Attorney John J. Flynn, representing Ernesto Miranda before the court, what rights an accused should be advised of while in custody. Flynn replied, "(H)e had a right not to incriminate himself, that he had the right not to make any statement, that he had a right to be free from further questioning ... to be represented adequately by counsel in court, that if he was too indigent and poor to employ counsel, that the state would furnish him counsel."

So were born the Miranda warnings. The landmark Supreme Court decision in Miranda v. Arizona has become part of American culture. Miranda's conversion from legal holding to cultural icon is due mainly to the nation's insatiable appetite for television crime dramas. Everyone with a television has heard Miranda warnings.

What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18-year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to prison. He appealed and his case made its way to the U.S. Supreme Court.

The Supreme Court ruled in favor of Miranda and excluded his confession. Chief Justice Earl Warren wrote the court's opinion finding a confession would be barred under the Fifth and Sixth Amendments unless a suspect had been made aware of his rights and the suspect had waived them. Warren made it clear, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."

As we soon mark 60 years since the decision in Miranda, it is important to note that the decision has remained far from pristine over the years. Nor was the ruling placed on a pedestal beyond the reach of activist courts — quite the contrary — the U.S. Supreme Court has continually tested, and at times, expanded and restricted the decision.

For instance, in 1981, the Edwards rule was established. The Court held that once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.

That changed in 2010. In a case out of Maryland, the Court established a bright-line rule finding that if at least 14 days passed from the time the suspect invoked his rights under Miranda, the police could again initiate an interrogation of the suspect.

Although the Miranda warnings are etched in nearly everyone's consciousness, the Supreme Court found that the police do not have to use those magical words to get the point across. In a 2010 case out of Florida, the court said as long as the rights are articulated to a suspect in a reasonable manner and the rights are understood, they are sufficient.

Then, in 2011, the Supreme Court decided a North Carolina case establishing for the first time that law enforcement must consider a suspect's juvenile status when carrying out the requirements of Miranda.

In 2022, the high Court held that a Miranda violation does not automatically translate into a constitutional violation actionable under the Civil Rights Act. The Court reasoned that Miranda warnings are procedural safeguards, not constitutional rights, and that a violation of these safeguards does not necessarily mean a violation of the Fifth Amendment.

Miranda is ever evolving. The late Justice Antonin Scalia was a critic of Miranda, although he didn't have time to dismantle the ruling. With six conservative justices on the court, the end may be near.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: The Obsolescence of Proof Beyond a Reasonable Doubt

Matthew T. Mangino
CREATORS
June 17, 2025

Former Supreme Court Justice Anthony M. Kennedy acknowledged in 2012 — when writing an opinion to establish the right to competent counsel for defendants negotiating a plea — that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

In 2022, a little more than 1 in 100 federal defendants and 1 in 20 state defendants went to trial. A significant majority of criminal cases are resolved by plea bargaining.

A plea bargain is a negotiated agreement between the government and a person accused of a crime. The accused agrees to accept responsibility in exchange for reduced charges or a more lenient sentence.

Many of those who choose to plead guilty serve their jail time before they are sentenced. How can an inmate serve his sentence before he is determined to be guilty?

The American criminal justice system has prided itself on the heavy burden placed on the government to prove those accused of a crime guilty beyond a reasonable doubt — yet very few are actually subject to that burden.

One of the most significant factors in resolving criminal cases is poverty. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great — witnesses disappear, evidence is weaker than first thought, the defendant has an alibi — the prosecutor offers a plea to a lesser charge and time already served in jail.

The defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.

Here is what the scales of justice are weighing in many cases. Liberty right now or further incarceration with the risk of conviction at trial, along with a harsh sentence.

There seems to be something inherently wrong with locking up poor people who can't afford a bond and then offering the time they already served as the penalty. In America, it is not just the poor who negotiate their way through the system.

Most defendants who pass through the criminal justice system waive the right to a trial and the panoply of constitutional protections that come with being charged. Those rights are some of the most fundamental rights afforded a person by the U.S. Constitution. For one, the right to confront witnesses. The Sixth Amendment provides that a person accused of a crime can cross-examine witnesses to determine if they are biased or their memory is faulty or unclear. A defendant can't do that at a plea hearing.

At trial, a defendant has the Fifth Amendment right to remain silent. No one can be forced to be a witness against oneself. That right doesn't exist at a plea hearing. The defendant is often the only witness and must acknowledge guilt.

A defendant has the right to pick an impartial jury of his or her peers, but not when pleading guilty. A defendant has the right to a speedy trial ... that right must be waived to enter a guilty plea.

The defendant may have a basis to challenge a search or arrest under the protections provided by the Fourth Amendment's prohibition against unlawful search and seizure. However, if the defendant wants a favorable plea bargain, those rights must be waived.

For those without the ability to post bail, plea bargaining is often the only avenue to freedom. Two defendants charged with the same exact crime in the same jurisdiction — one has money, he can post a monetary bond and walk the streets until trial, just like any law-abiding citizen.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: What Is Due Process and Why Is It Important?

Matthew T. Mangino
CREATORS
April 15, 2025

As we slide into the second quarter of 2025, if I were to predict the word or phrase of the year, it would be "due process." News stories lament the absence of due process, and talking heads, lawyers, White House aides, judges and journalists relentlessly examine its history and relevance. What does due process mean?

Due process, established by the Fifth and Fourteenth Amendments, guarantee that the government cannot take a person's basic rights to "life, liberty, or property" without giving advance notice and the opportunity to challenge the action in front of an impartial arbiter.

The concept of due process developed centuries before the U.S. Constitution was drafted. Due process is a historical product of the Magna Carta, through which King John of England promised "that [n]o free man would be deprived of his life, liberty, or property except by the lawful judgment of his peers or by the law of the land." The phrase "due process of law" first appeared in a 1354 version of the Magna Carta, "No man ... shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

The Founders incorporated due process into the Fifth Amendment to the U.S. Constitution, "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." At the time, due process only applied to federal matters.

In the wake of the Civil War, the U.S. House of Representatives proposed the Fourteenth Amendment. In 1868, the Fourteenth Amendment was ratified by the states and became part of the U.S. Constitution.

In essence, due process can be encapsulated in a single word — fairness. Due process impacts all of us, even if we are not facing arbitrary imprisonment or deportation.

Due process ensures fair treatment when a homeowner contests property taxes, or a driver fights a traffic ticket, a business seeks a zoning change, an individual seeks unemployment compensation or a student faces discipline.

According to Brandon L. Garrett, Kate Evans and Elana Fogel writing for The Hill, due process is always placed under special stress when people demand quick results without fairness. For instance, a new President wanting to show the nation he is cracking down on criminal gangs and illegal immigrants.

The U.S. government did not provide notice or review before hurrying hundreds of Venezuelan nationals onto planes bound for a notorious prison in El Salvador last month. According to The New York Times, White House aide Stephen Miller has repeatedly asserted that the people deported were not entitled to due process, even though the U.S. Supreme Court recently said the opposite.

David French of The New York Times asked, "How do they know if someone is an 'illegal alien' absent due process?"

French shared, in a recent column, his experience as a soldier deployed to Iraq during Operation Iraqi Freedom. After six of his comrades were killed in a booby-trapped house, a captured man was brought to French and his commanding officer. They determined, after questioning and examination of the relevant evidence, that he was not an enemy combatant.

He was released. French continued, "As he rolled out, though, a soldier turned to me and voiced our shared fear. 'It sure would suck if he actually turned out to be bad and we let him go.'"

"We're not God," French responded. "I can't look into his heart and know the truth, so we have to go by evidence. The evidence makes the decision for us. Was there enough evidence to hold him?"

That is due process. French continued, "(Due process) doesn't just protect a person's liberty and dignity. It's a humble acknowledgment of our own limitations."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Games Police Play, The Pervasive Role of Deceit in American Policing

While at times an effective tool, deception is ethically dubious and can result in severe negative consequences for suspects

Sanctioned by the courts and taught in police manuals, deceptive tactics are employed by virtually every police department across the country, according to a new report by the Cato Institute. Officers seeking to elicit a confession will routinely lie to suspects about the evidence and make statements that imply leniency. While effective at times, deception is ethically dubious and can result in severe consequences for suspects. The United States is an outlier in allowing police to deceive suspects, as the practice is prohibited or highly restricted in most peer nations, including England, France, Germany, and Japan.

First, deceptive interrogation tactics frequently induce false confessions, which are a leading cause of wrongful convictions in the United States. Further, the acceptability of lying to suspects during interrogations seems to encourage deception in other, more troubling contexts. Research shows that testimonial lies, such as perjury in court and falsifying police reports, are commonly employed by officers to secure convictions and circumvent constitutional protections. While such practices remain illegal, testimonial lies are rarely identified or punished. As a result, the justifications and skills cultivated through deceiving suspects in interrogations naturally bleed over into other police work.

Ultimately, the pervasiveness of police deception undermines the integrity and legitimacy of the criminal justice system. It leads to wrongful convictions, weakens civil liberties, and erodes public trust in law enforcement. While there are difficult trade-offs in regulating police deception, its negative consequences require policy responses. Contrary to contentions that deceit is a necessary tool of law enforcement, experiences in other nations suggest that restricting police deception does not hamper criminal investigations. Policymakers should consider measures to curtail police deception, such as requiring that interrogations be recorded, banning or limiting certain deceptive tactics, and increasing judicial scrutiny of interrogation practices.

Introduction

In interrogating a suspect, police often seek to extract an admission of guilt. Officers have found that deceit can be a remarkably effective tool in eliciting confessions from even the most hardened suspects. Since the Supreme Court has put few limits on the practice, the varieties of deceptive techniques police may use are limited chiefly by officers’ ingenuity.1 Officers learn deceptive techniques from interrogation manuals and rely heavily on these practices, often to the exclusion of using other strategies.2

While at times an effective tool, deception is ethically dubious and can result in severe negative consequences for suspects. First, deceptive tactics have been shown to frequently result in false confessions, which are a leading cause of wrongful convictions in the United States. Additionally, training and encouraging officers to lie to suspects during interrogations likely promotes an unduly permissive attitude toward deceitful behavior that carries over into testimonial lying. This includes perjury in court, lying on warrant applications, and falsifying police reports. While lying to suspects in theory (though not always in practice) pursues the truth, testimonial lying subverts justice by creating a false record meant to deceive authorities and courts. Yet from the officer’s perspective, the goal of each type of lie is generally the same: achieving criminal convictions.

Research shows that testimonial lies told by police are commonplace, routinely used to circumvent constitutional protections, and rarely punished due to systemic biases and close relationships between prosecutors, judges, and police. Since officers rarely face consequences for their testimonial lies, the justification for lying and the deceitful skills learned in interrogations naturally spill over to other policing contexts where prevarication remains illegal.

Policymakers may face difficult trade-offs in regulating police deception, but its negative consequences nonetheless require policy responses designed to promote justice, protect civil liberties, and maintain public trust in law enforcement.

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Creators: If Things Are Too Perfect, Then Something Must Be Wrong

Matthew T. Mangino
Creators Syndicate
August 27, 2024

In Waterbury, Connecticut, a police officer detained the driver of a vehicle who had safely pulled to the side of the road to reset his iPhone GPS.

The driver had done everything by the book. Instead of resetting his destination while driving down the road — you know, distracted driving — he pulled to the side of the road. While plugging data into his iPhone, a police officer walked up to his window.

The officer requested his license and registration. The driver turned over the cards, informed the officer that he had a concealed carry permit, showed it to the officer and told him where to find the firearm.

Instead of reviewing the information and saying, "Thanks, have a nice day," the officer ordered the driver out of the vehicle. He was handcuffed and thrown face down in the back seat of the cruiser while his vehicle was searched.

After finding nothing, the officer asked his supervisor, "What should I write him up for?" The trumped-up charges were dismissed and the officer got sued. During the suit, the officer claimed he was protected by qualified immunity, which allows state and local officials to avoid personal consequences related to their professional interactions unless they violate "clearly established law."

The officer claimed he had the legal right to detain the driver and search the vehicle. According to Tim Cushing, writing for Techdirt, the officer actually testified "that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause."

The prosecutor, through the officer's testimony, argued that if things are too perfect, then something must be wrong.

Fortunately, the Federal Court of Appeals for the Second Circuit didn't buy it — but this case could end up before the United States Supreme Court. Eleven years ago, with fewer conservative justices, the high court made the remarkable finding that a suspect cannot invoke the right to remain silent by, well ... remaining silent.

The case, Salinas v. Texas, arose from the murder of two men in Houston. The police found shotgun shells discarded at the crime scene.

The police questioned Genovevo Salinas, who was said to have attended a party at the victims' apartment. When Salinas met with police, he was not under arrest. He voluntarily submitted to questioning and was free to leave the police station at any time.

He answered questions for almost an hour, but when asked by police if the shotgun shells found at the murder scene would match a shotgun found in Salinas' home, he stopped talking.

The police made a record of Salinas' conduct once he stopped talking. According to the Supreme Court opinion authored by Justice Samuel A. Alito Jr., Salinas "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up."

That conduct was used at his trial as evidence that he was hiding his guilt. The Supreme Court agreed, finding that silence is not enough to invoke the right to remain silent.

When the Salinas case was argued, his attorney suggested that it would be unfair to require a suspect untrained in the law to do anything more than remain silent in order to invoke his "right to remain silent."

The Supreme Court has made the right to remain silent more complicated, and it will require those accused of a crime to be more informed about their rights and, more importantly, the decision will require an accused, under enormous pressure, to articulate the desire to invoke those rights.

The Connecticut case presents the same dilemma for someone falsely accused of wrongdoing. Would a person need to know if and when his statement or conduct is too perfect? Should a suspect be worried that his cooperation may lead to an officer's "reasonable suspicion"?

A suspect who encounters the police and worries his explanation is too good may become nervous, fail to maintain eye contact, or awkwardly shift in his seat. Maybe a bead of sweat forms on his upper lip — accepted indicia of lying.

Are we evolving into a country where a suspect who has done nothing, and admitted nothing, can be convicted of a crime?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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Conversation at police station between suspects not protected by Miranda

The US Court of Appeals for the Eleventh Circuit reinstated a Florida man’s conviction, following a challenge that the police department violated the man’s Miranda rights, reported Jurist.

Jimmie Bowen was arrested for his alleged involvement in gang related violence. After being advised of his Miranda rights, Bowen invoked his right to counsel. Some time after, Bowen was moved to a new interrogation room with another suspect who had waived his Miranda rights. The suspects began discussing the event and revealed incriminating information, which was being recorded by police.

Bowen moved for these statements to be suppressed, arguing that placing the two suspects in the same room was an interrogation, violating his Miranda rights. Once a suspect invokes his right to counsel, the police are not allowed to continue interrogations without counsel being present. The incriminating statements were used at trial and Bowen was convicted.

The appeals court disagreed with Bowen, stating “Miranda does not require a warning, or otherwise impose restrictions, anytime police speak with someone–even if that someone is a suspect. Instead, its protections apply only in custodial interrogation.” The court went on to state that this was not a custodial interrogation, as Bowen spoke to the other suspect “because he wanted to,” and knew he could refuse.

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Suspect can refuse to disclose cellphone passcode under Fifth Amendment

A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled, reported the ABA Journal.

In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.

The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.

Ars Technica and the Salt Lake Tribune have coverage, while the Legal Profession Blog has highlights from the opinion.

Valdez’s ex-girlfriend told police that she agreed to meet Valdez outside her workplace after he said in a text he had some of her mail and wanted to give it to her. When the ex-girlfriend walked up to Valdez’s SUV, he pointed a gun at her and told her to get in his vehicle, she said. After she complied, Valdez allegedly assaulted her.

The defense claimed that the interaction was consensual.

Police weren’t able to locate the ex-girlfriend’s cellphone after the incident, but they seized Valdez’s cellphone to verify that he had sent the text. Police obtained a warrant to acquire the cellphone contents.

The Fifth Amendment’s privilege against self-incrimination applies when a communication “is compelled, testimonial and incriminating,” the Utah Supreme Court said. On appeal, the state conceded that the password was compelled and incriminating but claimed that it was not testimonial in nature.

Providing a passcode, the state argued, is not a testimonial communication because it is like handing over a physical key, a nontestimonial act. The Utah Supreme Court disagreed.

Providing a cellphone passcode is testimonial and would explicitly communicate information from the suspect’s mind, making the revelation testimonial in nature, the state supreme court said.

The state also argued that, even if the password is testimonial, the Fifth Amendment does not apply under the “foregone conclusion” exception. It was a foregone conclusion that Valdez owned the phone and knew the password, the state argued, so turning over the passcode would disclose what police already knew.

But the foregone conclusion exception applies only in cases considering whether an “act of production,” such as turning over documents, has testimonial value, the Utah Supreme Court said. At issue is whether the act of production is testimonial in nature, as when producing the documents amounts to a concession that the documents exist and are controlled by the suspect.

“But here,” the Utah Supreme Court said, “we have a verbal communication that would have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable.”

The state supreme court acknowledged that the “analytical framework” would be different if Valdez had been asked to hand over an unlocked cellphone, which would be a compelled act of producing evidence.

The Utah attorney general’s office told the Salt Lake Tribune in a statement that it is disappointed in the ruling and “is evaluating options for further review.”

In a post at the Volokh Conspiracy, Orin S. Kerr, a professor at the University of California at Berkeley School of Law, said the decision “might be a good candidate for U.S. Supreme Court review” to clear up the “total mess” of lower court decisions on the issue. The state supreme court had cited Kerr’s law review articles in its opinion.

Weighing against cert, however, is that Valdez’s case concerns compelled disclosure of a password, rather than compelled unlocking of a cellphone. If the Supreme Court was to accept the case, “it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day,” Kerr said.

The case is State of Utah v. Valdez.

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Recent Pa. Supreme Court Case Tackles Pre-Arrest and Post-Arrest Silence

Matthew T. Mangino
The Legal Intelligencer
September 7, 2023

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Most Americans can recite the Miranda warnings verbatim—not because of the power and substance of some high school civics class—but because of television crime dramas. The Miranda warnings are etched into our psyche, “You have the right to remain silent …” However, that iconic first line is not as clear as one might think.

This summer the Pennsylvania Supreme Court issued an important decision regarding the Fifth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. The language of the Pennsylvania and U.S. Constitutions are quite similar, but not identical. In Pennsylvania the Constitution provides, “The accused … cannot be compelled to give evidence against himself.” The Fifth Amendment provides, “No person … shall be compelled … to be a witness against himself.”

The Pennsylvania Supreme Court decided Commonwealth v. Rivera, 22 MAP 2022, on June 21. If you are a constitutional “geek” you’ll feel as though you stumbled upon a pot of gold. This opinion examines a defendant’s silence in the context of pre-arrest and post-arrest; harmless error; a lack of curative instruction; credibility and split verdicts.

Jonathan Rivera was accused of the rape of several children. He was accused by four females and went to trial. At trial the prosecutor asked a testifying police officer: “After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?” Over the objection of the defense counsel, the police officer was ordered to answer. The officer said “He [Rivera] did not deny.” All in all, the officer was asked four different ways if Rivera denied the allegations and each time the officer answered in the negative.

The jury returned a split verdict finding him not guilty on the most serious charges. On appeal, Rivera argued that the trial court erred by permitting the testimony regarding his post-arrest silence. Rivera suggested that the testimony of his silence “irreparably undermined his credibility in the eyes of the jury.”

The prosecution argued that the defense briefly inquired into the defendant’s pre-arrest silence and that opened the door to the prosecution’s questions. The prosecutor’s questions were a fair response to the defense counsel’s questioning. The Pennsylvania Superior Court disagreed and ruled the prosecution’s questions of silence were admitted in error.

However, that’s where the wheels came off at the Superior Court. The court found the “trial court’s error was harmless because the prejudice to Rivera, if any, was de minimis.” The problem with the Superior Court’s finding, according to the Supreme Court, was that the court relied on decisions relating to pre-arrest silence, instead—as in Rivera’s case—the issues of one of post-arrest/post-Miranda silence. In Rivera, the Supreme Court ruled, “Undeniably, the four questions the prosecutor asked here related to Rivera’s post-arrest, post-Miranda silence.”

 

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Why is the commonwealth’s reference to post-arrest silence innately prejudicial? Most people believe a person falsely accused of a crime would bitterly protest their innocence or without hesitation challenge any accusation against them.

The same is often thought when a suspect displays little emotion in the wake of the suspicious loss a spouse or child.

We know that neither is necessarily indicative of guilt. People dealing with a loss or confronted with arrest react in different ways. The shock of such a trauma could simply be dealt with by silence—neither should be easily accepted as an admission of guilt.

Although the Supreme Court acknowledged that the court has struggled to create a uniform rule to govern references to pre-arrest silence—the case before the court was not the case to address that issue. The court wrote, “We need not square the circle here.”

According to the Supreme Court, the court first took up the issue of post-arrest silence more than a half century ago. In Commonwealth v. Haideman, 296 A.2d 765 (Pa. 1972), the Supreme Court held, “Testimonial reference to an accused’s silence … at the time of arrest is … constitutionally impermissible.”

The court in Haideman pointed out that even Miranda v. Arizona, 384 U.S. 436 (1966), forbids the prosecution from “introducing at trial the fact that the accused ‘stood mute or claimed privilege.’”

The Supreme Court also explored Commonwealth v. Greco, 350 A.2d 826 (Pa. 1976), “I advised him … that he had the right to remain silent and he didn’t actually make any statement …”; Commonwealth v. Singletary, 387 A.2d 656 (Pa. 1978), “And on advice of counsel, you made no statement concerning the case?”; and Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), “Did you ever tell the police that somebody was shooting at you?”

None of these decisions relied on by the Supreme Court were cited by the Superior Court in their Rivera decision.

In each of the above decisions, the Supreme Court granted the defendant a new trial. The court noted, “This court has repeatedly signaled to the commonwealth that referencing a defendant’s post-arrest silence may imperil an entire case.” The court went further, “We have often deemed a single such reference—answered or not, curative instruction or not—offensive enough to the constitution and the principles it embodies as to call for a new trial.”

The last question addressed by the Supreme Court, now that it was clear that the testimony of Rivera’s post-arrest silence was admitted in error, was whether the error was harmless. The court looked to Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014). There are three prongs to the Hairston harmless error test. First, did the error prejudice the defendant or was the error de minimis?

The court quickly disposed of the first prong—the Superior Court had reviewed the case as pre-arrest silence when it was clearly post-arrest silence.

The second prong related to whether the error was merely cumulative. The commonwealth did not even argue that the testimony of the police officer regarding Rivera’s post-arrest silence was cumulative of other evidence presented in the case.

The third prong provides that the commonwealth must prove beyond a reasonable doubt that “properly admitted and uncontracted evidence of guilt was so overwhelming and the prejudicial effect of the error was insignificant …”

The court found that due to the lack of physical evidence, credibility was central to this case “It is not improbable that the admission of this testimony might have contributed to the conviction.” The court also pointed out the absence of a clear curative instruction by the trial judge and the spit verdict by the jury all contributed to the finding that “the allowance of the constitutionally impermissible testimony here was not harmless.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

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Cosby walks, PA Supreme Court overturns his conviction

 After spending three years behind bars, the Pennsylvania Supreme Court on Wednesday overturned the sexual conviction of comedian and actor Bill Cosby.

In its ruling, the state’s highest court said former Montgomery County District Attorney Bruce Castor’s decision not to charge Cosby in 2005, freeing Cosby to testify in a subsequent civil suit without his Fifth Amendment protection against self-incrimination, allowed another prosecutor to try him, according to court documents.

Cosby had relied on the former prosecutor’s decision not to charge him when the comedian gave his potentially incriminating testimony in the civil case, the Associated Press reported.

Cosby, now 83, was convicted in 2018 of drugging and sexually assaulting a woman in 2004, and had been sentenced to three to 10 years in prison, according to CNBC. In a ruling authored by Justice David Wecht, the high court ruled that he could not be tried twice for the same charge.

“When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade,” the high court ruled.

“For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged,” the decision reads.

Justices Debra Todd, Sallie Mundy, and Christine Donohue joined Wecht in the opinion. Justice Kevin Dougherty concurred in part of the opinion and dissented in part. He was joined by Chief Justice Max Baer. Justice Thomas Saylor filed a dissenting opinion.

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Minnesota sex offender wants Fifth Amendment protection in treatment

The Minnesota Supreme Court heard arguments in the case of a man who claims sex-offense confessions made to his probation officer as part of a court-mandated program are protected by the Fifth Amendment, reported the Courthouse News Service.

Adam McCoy’s appeal highlights a potential conflict between the state’s rehabilitation programs for sex offenders, their requirements of full disclosure and the constitutional rights of those offenders.

McCoy was charged in 2019 with two counts each of first-degree and second-degree criminal sexual conduct for the 2005 assault of his 2-year-old stepdaughter. A district court granted McCoy’s motion to suppress the statements that gave rise to the charges, which he made to his probation officer and a polygraph examiner during treatment mandated by a court as part of his probation for another sex offense.

The court ruled that the statements, in which McCoy detailed an assault of his stepdaughter along with other unidentified victims, were inadmissible because they violated his right against self-incrimination under the Fifth Amendment of the U.S. Constitution.

The case was dismissed, but prosecutors won a reversal in the Minnesota Court of Appeals, which found that because McCoy’s disclosures were not compelled because he did not assert his right against self-incrimination before filling out a detailed questionnaire and taking a polygraph test, and was informed that the examiner and probation officer were mandatory reporters.

McCoy’s lawyer, Zachary Johnson of Park Rapids, Minnesota law firm Thomason, Swanson & Zahn, argued Tuesday morning that his client had been trapped in a Catch-22. Without an attorney present, he said, McCoy should not have been expected to know what statements could be incriminating.

“It should not be up to the individual probationer to know where to draw the line,” Johnson said. “The question of whether something is incriminating or not is often a legal question or an investigative question, and often we’re not dealing with sophisticated parties.”

He added that a decision that the ostensibly rehabilitative treatment process can be used to prosecute offenders could lead Minnesota defense attorneys to advise their clients not to participate in sex offender treatment at all.

“Every lawyer would have to advise their clients to participate in sex offender treatment at their own peril,” he said. “No probationer in his right mind would ever agree to cooperate with that.”

Johnson also sought to distinguish McCoy’s case from State v. Murphy, a 1983 case in which the Minnesota Supreme Court decided that the Fifth Amendment does not make statements to a probation officer about crimes unrelated to the probation inadmissible if the probationer does not assert his right to avoid self-incrimination.

“The nature of this encounter was incredibly different than what happened in Murphy. In Murphy, we had a normal probation interview,” Johnson said. “That’s different here, and I think the court can see the difference.”

The state, meanwhile, argued that Murphy was an appropriate precedent to apply. Cass County Attorney Ben Lindstrom, whose jurisdiction lies in the north-central part of Minnesota, pointed out that, like in Murphy, McCoy volunteered the information without being threatened with breach of probation, imprisonment or any other penalty.

“The appellant was never told that he needed to provide information that would incriminate him. As a matter of fact, the polygraph provider was very clear on that, ‘don’t provide us incriminating information,’” Lindstrom said, adding that pleading the Fifth is a legitimate excuse under the rules of probation.

Much of the court’s questioning surrounded whether a threat was implicit in the requirement of a full-disclosure polygraph, especially in light of the fact that McCoy was not read his Miranda rights ahead of time.

“How should we be defining threat?” Chief Justice Lorie Gildea asked Lindstrom.

The prosecutor argued that threats, in this case, would have to be unlawful actions, and that the possibility of a probation violation didn’t qualify.

“I would distinguish consequences from threats,” he said. “I would distinguish the lawful imposition of a consequence versus the unlawful imposition of a consequence.”

Justice Paul Thissen also pondered aloud whether the issues presented by McCoy’s case could be better resolved by amending Minnesota’s rules of evidence to clarify when and whether statements like his could be admitted.

Justice Barry Anderson poked at Johnson’s effort to set his client’s case apart from Murphy, drawing out a sideswipe against Lindstrom.

“This issue’s been around a while, and Murphy’s been around a while, and I don’t see any indication that the roof is falling in,” Anderson said.

Johnson agreed, with a major caveat.

“The reason why you haven’t seen the sky falling in… is because these prosecutions should be rare,” he said. “Many prosecutors in the state, the idea of prosecuting a crime on the basis of these statements is just something they would not choose to do.”

“These prosecutions should be relatively rare. I would hope they would be, at least,” he added. “But now that we are faced with one, it could be a case where bad facts make bad law.”

Minnesota’s sex offender rehabilitation process has been at the center of several controversies in recent years, many of them focused on the state’s civil commitment program for offenders deemed to be sexually dangerous persons.

A federal judge’s 2015 order requiring the state to create pathways to release for committed offenders was overturned by the Eighth Circuit two years later, but releases have become slightly more common regardless. Before 2015, no one had ever been fully released from the program in its 20 years of operation, and only three people had been conditionally released.

Since then, 13 detainees have been fully released, and 11 were conditionally released in 2020. Those numbers are still dwarfed by the approximately 740 current detainees and the 86 who have died in the program’s custody.

McCoy was not civilly committed at the state’s sex offender treatment facility in Moose Lake, but Mitchell Hamline School of Law professor Eric Janus said his dilemma is not unlike ones faced by many of those offenders. Janus leads the St. Paul law school’s Sex Offense Litigation and Policy Resource Center, and has written critically about Minnesota’s program.

“Certainly, this whole area is fraught, because obviously on the one hand, full disclosure and telling the truth is critical in terms of sex-offender treatment. You’ve got that notion kind of in conflict with the idea that full disclosure can be self-incriminating,” he said.

“That information can be, and often is, used if there’s a sex offender civil commitment proceeding brought,” he added. “And that’s problematic from the perspective of the individual, but it’s also problematic because it creates a disincentive for people to participate in treatment.”

All in all, he said, sex-offender treatment is an admirable goal, but hitches like McCoy’s can make it difficult for offenders to go through the program without fear of consequences.

“We’re pretty sure that participating in sex-offender treatment is a positive thing. It’s helpful, in terms of helping people reenter society. It’s just a conundrum,” he said. “And when you couple that with mandatory reporting laws, even in situations where normally one would expect some confidentiality… these mandatory-reporting laws often mean that the expectation of confidentiality is violated.”

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MCN: Few criminal trials feature the defendant’s testimony

Matthew T. Mangino
More Content Now
December 11, 2020

Why do so few men and women charged with a crime exercise their constitutional right to testify in their own defense?

The answer is complicated.

Let’s start with the fact that in state and federal courts only a small percentage of cases even go to trial. According to the Pew Research Center, in 2018 nearly 80,000 people were prosecuted in federal criminal court - only 2% went to trial.

Choosing to go to trial can be a risk. One concern is the “trial penalty,” a widely lamented tool of prosecutors used to punish people who go to trial more harshly than similarly situated defendants who plea bargain.

In some jurisdictions, including federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive in state and federal courts, that defendants weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence.

Once that seemingly bold, and exceedingly rare, decision to go to trial is made, a whole host of other issues must be considered. The decision to testify is a strategic one. It wasn’t long ago when defense attorneys made the decision about whether their clients would testify. In 1987, the U.S. Supreme Court changed all that, when it decided that the decision to testify was a “personal and fundamental constitutional right.”

The government has the burden of proving a defendant guilty beyond a reasonable doubt - the defendant has no obligation to prove anything.

That is the law, but there are times the jury wants to hear the defendant’s side of the story. There are risks that come with testifying. A defendant’s criminal record, which may otherwise have been kept from the jury, can be used to impeach the defendant’s credibility if he or she takes the witness stand.

Professor Anna Roberts of Seattle University Law School wrote in a 2016 law review article, “A recent study of DNA exonerees revealed that, despite their factual innocence, 91% of those with prior convictions waived their right to testify at trial. The most common reason given by their counsel was the fear of the impact of impeachment.”

According to Roberts the fear was justified “allowing the jury to learn of a defendant’s criminal record increases the rate of conviction by as much as 27%.”

Testifying in front of a robe-draped judge, in an ornate courtroom, in front of 12 strangers who will decide your fate can be daunting. What kind of witness will the defendant make? Is the defendant friendly? Is she articulate? Does she understand the gravity of the situation? Does she have a temper or tendency to fly off the handle?

No matter how well prepared to testify, a defendant will be subject to cross-examination. The process can be grueling and can reveal holes in the defendant’s story that can result in a conviction.

The other option for a defendant at trial is silence. A silent defendant can leave a jury wondering why the defendant didn’t refute the charge - although a defendant has no obligation to present an alternative to the prosecution’s case.

More importantly, the defendant who remains silent loses an opportunity to win over the jury.

In a 2008 study, Daniel Givelber and Amy Farrell found an increase in the percentage of acquittals when the jury heard from the defendant. When a jury heard from both the defendant and other witnesses on the defendant’s behalf, the acquittal rates rose substantially.

To testify, or not to testify, is the question - the answer is ... complicated.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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