My Recent 9 News Interview: Balancing Privacy With Public Protection

Todd Walker reported on an interesting story yesterday--Litttleton, Colorado police issued a safety alert because a man with a mental illness had threatened to "shoot up" a hospital and a Target store. The police did not take him into custody because they felt his threats were not specific enough.

I was interviewed for the story, talking about the need to balance a patient's privacy with the protection of the public.

Here is the video:



Thanks for watching-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel
www.YouTube.com/drmaxwachtel

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Know Your Miranda Rights: Miranda v. Arizona (1966)

Ernesto Miranda's Mugshot

You have the right to remain silent. Anything you do say can and will be used against you in a court of law.

We have heard those words a million times. On every cop show in the U.S., police officers read suspects their "rights" as soon as the handcuffs come out.

Have you ever noticed the police officers on the reality television show Cops never read people their rights when they are being arrested? Why is that?

Also, did you know a proper Miranda warning is more than just the right to remain silent?

In 1966, the US Supreme Court heard the case of Miranda v. Arizona. Ernesto Miranda had been convicted of kidnapping and rape in Arizona, but he argued the confession he gave to police should not have been used to convict him because he was not aware of his Constitutional Rights (specifically, his Fifth Amendment Right against self-incrimination and his Sixth Amendment Right of assistance of counsel). The Court agreed and reversed his conviction.

The State of Arizona retried Mr. Miranda, excluding his confession during the new trial. He was convicted again and sent to prison. He was paroled in 1972, and he sold autographed copies of the Miranda warning to earn a living. He later died of stab wounds inflicted during a bar fight.

So, what are your rights? When do police need to read them to you? What evidence can be used against you in court? Here are some helpful bits of information:

1. Here is the language from the original Miranda decision in 1966: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."

2. The exact wording of a Miranda warning will differ from state to state. Subsequent legal decisions made it clear that the wording does not need to be the same in every state, as long as the warning covers the Fifth and Sixth Amendment Rights from the 1966 Miranda v. Arizona decision.

3. Most states have changed the word "interrogation" to "questioning." They have also changed the wording "indigent" to "if you cannot afford an attorney."

4. Many states have added language to their Miranda warning explaining that, once you start answering questions, you can exercise your Fifth Amendment Right and stop answering them at any point. Others have added wording explaining you can exercise your rights at any time.

5. Notice the phrase "The person in custody" from the blue text above. If you are not in police custody, you do not need to have a Miranda warning read to you. Essentially, if a reasonable person would know he/she is free to leave at any point, he/she is not in police custody when talking to detectives. Just because you are at a police station does not mean you are in custody. When in doubt, ask, "Am I in your custody?" or "Am I under arrest?"

6. Also, notice the phrase, "prior to interrogation." The police do not need to read you your rights immediately after they arrest you (i.e. take you into custody). They only need to give you a Miranda warning before they start asking you questions to gather evidence. If you say something incriminating in the police car on the ride to the police station prior to being Mirandized, that information will most likely be used against you and will not be thrown out by the judge.

7. There is a "public safety" and/or "national security" exception to the Miranda warning. If the police interrogate you prior to a Miranda warning just to make other arrests easier (if they are looking for accomplices, for example), that information should be thrown out. But, if the police are concerned for the safety of others, they can interrogate you without a Miranda warning. An example of this would be if you have placed bombs all over the city and the police catch you. They will ask you all kinds of questions about where the other bombs are without a Miranda warning in order to keep people from getting hurt. That is legal, and the information you provide can typically be used against you in court.

8. You retain all Constitutional Rights, regardless of whether a police officer reads you a Miranda warning. To say otherwise would be akin to arguing you do not have the right to bear arms until someone reads you the Second Amendment. You always have the right to remain silent and you always have the right to an attorney, regardless of when your Miranda warning is read to you.

9. This is important: You must explicitly exercise your Fifth Amendment or Sixth Amendment Rights when in custody. Otherwise, police officers will continue interrogating you. You will not be able to argue to the judge later on that you did not want to talk to police so you tried to stay silent, but they finally wore you down after six hours of questioning. That 'worn down' confession will be used against you.

You need to specifically tell the police you are not going to talk to them and you are invoking your right to remain silent. The police will immediately stop asking you questions when you say that. If you specifically tell them you do not want to answer questions until you talk to an attorney, they will stop questioning you and provide you with a lawyer.

If you don't say either of those things (i.e. if you don't exercise your rights), they can question you for hours, even if you do not respond to them.

10. This is REALLY important: If you sign a Miranda warning form at a police station, you are waiving your Fifth and Sixth Amendment Rights, and the police will interrogate you for as long as it takes them to get useful information. If you do not sign the form, they will not ask you questions.

11. This is EVEN MORE important: If you waive your Miranda rights, you can still invoke them later on. If you sign the form and talk to police for 30 minutes, and then you realize you want an attorney, you can exercise your rights and the police will be required to hold off on the interrogation.

I hope this helps clarify the Miranda warning. Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Facebook.com/drmaxwachtel
www.Twitter.com/mwachtel
www.YouTube.com/drmaxwachtel

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The Death Penalty Is Cruel and Unusual Punishment for Juveniles: Roper v. Simmons (2005)

On September 9, 1993, Christopher Simmons and a friend bound Shirley Cook in duct tape and electrical cables, beat her, and threw her into a river from a bridge. The coroner for St. Louis County, Missouri, ruled her death a drowning.

The evidence against Mr. Simmons was overwhelming. He had clearly premeditated the attack and murder, had bragged about it later, and he confessed to the police. He went so far as to re-enact the attack and murder for the police. There was witness testimony against him as well. The jury had no option but to find him guilty beyond a reasonable doubt.

Mr. Simmons was then sentenced to death for first degree murder. In the sentencing phase of his court case, his defense attorneys failed to bring out extensive mitigating evidence of Mr. Simmons' horrific childhood history of abuse and drug and alcohol abuse. His history is well-documented by The International Justice Project. To summarize, his stepfather would beat him regularly, neglect him as a toddler, and feed him alcohol at ages as young as four in order to entertain the father's friends.

On appeal, Mr. Simmons argued he had ineffective counsel because this mitigating evidence was not brought to light. In fact, at least one juror who sentenced him to death could not understand why a person who was presented as being an upstanding citizen could snap and engage in such horrible behavior.

The trial court hearing the appeal did not agree with Mr. Simmons' argument, so it was sent to an Appeals Court. This is where the case gets really interesting.

Even though he was an adult at the time of his conviction and sentencing, Mr. Simmons was only 17 at the time of the murder. His new attorneys dropped the issue of ineffective assistance of counsel and focused on his age and his potential diagnosis of mental retardation. They argued the case all the way to the Missouri Supreme Court, which held that it would be considered cruel and unusual punishment (Eighth Amendment) to execute an individual who was mentally retarded. It would also be a violation of the Eighth Amendment to execute a juvenile under the age of 18 at the time of the offense.

The State of Missouri appealed this decision to the U.S. Supreme Court, who agreed to hear the case in 2004.

The State of Missouri argued that executing a 17 year-old is not an Eighth Amendment violation, due to the Court's decision in 1989 upholding death sentences for juveniles ages 16 or above (Stanford v. Kentucky). Complicating the state's case, however, was Atkins v. Virginia (2002), where the Court found executing someone who is mentally retarded to be unconstitutional.

After hearing oral arguments, the Court deliberated and issued a ruling in 2005. They upheld the Missouri Supreme Court's decision to set aside Mr. Simmons' death sentence. They cited statistics in their ruling indicating a majority of states had already outlawed death sentences for juveniles, and they noted Americans view juveniles as "categorically less culpable than the average criminal." The scientific basis for this ruling was explained as follows:

"(1) the lack of maturity and an underdeveloped sense of responsibility were found in youth more often than adults and were more understandable among the young;

"(2) juveniles were more vulnerable or susceptible to negative influences and outside pressures, including peet pressure; and

"(3) the character of a juvenile was not as well formed as that of an adult."

As a result of this case, Mr. Simmons' sentence was reduced from death to life in prison without parole. And, the U.S. Supreme Court created a new standard for the death penalty--it is now a violation of the Eighth Amendment to execute anyone who committed murder prior to the age of 18.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
www.Twitter.com/mwachtel
www.Facebook.com/drmaxwachtel
www.YouTube.com/drmaxwachtel

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