TO: FROM: All Members Education Committee SUBJECT: Sample Interview & Interrogation Policy DATE: February 2011 Attached is a SAMPLE Interview & Interrogation policy that may be of use to your department. Please understand that this should serve only as a Starting Point for those departments who may wish to update their Rules & Regulations Manual in this area. To best serve your department, it should be reviewed and revised by you, your Municipality and Insurance Carrier. Again, it is only a draft and should serve as a starting point. 1
SAMPLE INTERVIEW & INTERROGATION POLICY 01. PURPOSE The purpose of this policy is to provide Police Officers with general guidelines on Interview & Interrogation and possible related activity. This policy is for departmental use only and does not apply in any criminal or civil proceeding. This department s policy should not be construed as a creation of a higher standard of safety or care in an evidentiary sense with respect to third party claims. It should serve as a general guideline, which, under unusual circumstances, may warrant departure from in order to respond appropriately. 02. POLICY I. Interviews and Interrogations A. Interviews Definition: A non-accusatory conversation in which through questions and answers, the police interviewer tries to develop investigative and behavioral information that will test the veracity of statements made by a suspect, victim or witness. (1). Procedures: B. Interrogations (a). Interviews may occur in a variety of circumstances and locations. (b). Officers shall conduct interviews in the same manner as if they were engaging in any normal conversation. (c). Officers conducting interviews shall be aware of the nature of questions, their location, the interviewed persons location, and the conditions present when conducting interviews so that the subject does not have any reason to believe he is in custody. Definition: An accusatory procedure designed to elicit from the subject a confession, or an acknowledgment that he did not tell the truth during an initial statement, whether that person is a suspect who originally denied involvement in an incident, or a victim who fabricated the nature of the alleged offense. 2
(1). Procedures - Officers shall consider the following criteria when initiating interrogations: (a). Non-Custodial Interrogations (i). Miranda warnings are not required to be given to a subject by Officers when the subject is being interrogated, but is not in custody. (ii). A statement form shall be used when taking non-custodial statements from victims, witnesses and suspects, when conditions permit. (b). Custodial Interrogations (i). The test for determining whether a person is being subjected to custodial interrogation, so as to require Miranda warnings, is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which a reasonable person would believe that his freedom of action or movement is restricted by such interrogation. (ii). Officers shall provide, verbally (via Miranda Card) and/or written, Miranda warning advisements whenever a person in custody is subjected to custodial interrogation or its equivalent. (written forms are preferred). (iii). When providing written Miranda warnings during custodial interrogations, Officers shall use the Department Waiver of Rights form, when conditions permit. Attachment #1. (iv). All original rights forms and written statement(s) received, shall be submitted with the investigation report and placed in the original case folder. II. Access to Counsel Officers shall consider the following procedure when safeguarding a detainee s access to counsel during interrogation: A. Right to Counsel (1). When a subject has been placed under arrest by a Officer, and the subject is being subjected to a custodial interrogation, he shall be advised of the right to speak to counsel through the Miranda warning advisement. If they do not waive the right, the interrogation shall not proceed. 3
(2). When a detainee requests to speak to an attorney before, or during, a custodial interrogation, the interrogator shall cease questioning and provide the detainee the opportunity to confer with counsel. B. Waiver of Right to Counsel (1). Detainees may waive their right to counsel following the Miranda warnings. However, interrogators shall document that the waiver was a knowing and intelligent waiver, e.g., that the detainee knew of his right to consult with counsel before answering questions and he freely chose to proceed with the interrogation without exercising that right. (a). Documentation of the waiver shall be on a Department Miranda Rights Form and/or in an incident report filed by the interrogating Officer(s). Attachment #2. (2). If the suspect waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. But if a suspect requests counsel at any time during the interview, the interrogating officer shall not subject him to further questioning until a lawyer has been made available or the suspect freely requests the continuation of the interrogation. The re-initiation of the interrogation should be preceded by clarification questions that establish the suspect s intention to re-waive the presence of counsel. A second Miranda warning form should be executed specifying the date and time to clearly evidence the suspect s intention of waiving his right to counsel. Caution should always be used when a suspect freely reinitiates conversation. A call may be made to an ADA to determine if the interview should continue. (3). The interrogating Officer must ensure that the suspect clearly requests counsel. A suspect must articulate his desire to have counsel present sufficiently enough that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, interrogating Officers are not required to stop questioning the suspect. 4
Form may be used on your department letterhead POLICE DEPARTMENT MIRANDA RIGHTS WARNING PLACE DATE & TIME (1) You have the right to remain silent. (2) Anything you say can and will be used against you in a court of law. (3) You have the right to talk to an attorney and have him/her present with you while you are being questioned. (4) If you cannot afford to hire an attorney, one will be appointed to represent you free of charge before any questioning, if you wish. (5) You can decide at any time to exercise these rights and not answer any questions or make any statements. WAIVER I am not unduly under the influence of drugs and/or alcohol. I am making this waiver voluntarily and without threats, pressures, coercion or promises of any kind being made to me. I understand my rights and I am willing to answer questions. Signature I certify the above statements were read to before he/she was questioned. Police Officer Police Officer Attachment #1 5