What to do when police invite you to give your “side of the story”

by Atty. Emmanuel Samonte Tipon

What could be more tempting for an apprehended individual to accept?  A policeman takes you into custody and then invites you to give your “side of the story”. You might say to yourself, here is a nice officer who wants to help me. You don’t realize that in telling your “side of the story” you might be giving incriminating evidence that could later be used against you.

A Filipino American Supreme Court Justice in Hawaii has condemned this practice. In State v. Eli, No. SCAP 30420, decided on April 13, 2012, Justice Simeon R. Acoba held that “after arrest the police practice of inviting an arrestee to make a statement and to give his or her ‘side of the story’ or similar entreaties in a ‘pre-interview’ before Miranda warnings are given, violates the defendant’s right against self-incrimination.”  He further stated that “under the circumstances of this case the Mirandized statement offered into evidence at trial resulted from the exploitation of the said pre-interview practice. The Miranda warnings subsequently given did not remove the ‘taint’ of such practice.”

The 1966 Supreme Court ruling in Miranda v. Arizona required arresting officers to read suspects their rights before interrogating them. This has become known as the “Miranda warning”. The warning basically states: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” There are other and more detailed versions.
After being given the warning, the detained individual has the option to continue with the questioning or tell the officer that he does not want to talk and wants to call a lawyer.

In the case of State v. Eli, the defendant was arrested and brought to the main police station. Detectives told him that he was under arrest for assaulting his daughter. A detective testified that he asked the defendant if he wanted to give a statement and “may have mentioned to him that, you know, it’s a chance to give me his side of the story.”  The detective stated that he did not imply to the defendant that by hearing his story things might change. Defendant apparently agreed to make a statement.

The detective later activated his tape recorder and used a police department form to advise defendant of his constitutional rights. The detective asked defendant if he wanted an attorney and defendant responded “No, not now.” Defendant then filled out the form and waived his Miranda rights. Defendant then gave his story and admitted throwing his daughter on the car seat when she would not stop crying.

Defendant moved to exclude the statement on the ground that the detective obtained a waiver of defendant’s right to remain silent prior to giving the Miranda warning and moved for mistrial.

The court ruled that absent Miranda warnings, any statements made in the course of custodial interrogation without a valid waiver are inadmissible at trial. The court said that Miranda warnings were required before the detective asked the defendant if he wanted to relate his side of the story. The court directed the lower court to suppress the defendant’s statements and vacated the judgment of conviction and remanded the case for a new trial.

RECOMMENDATION:  If you are arrested, tell the arresting officer that you want to speak with a lawyer before being questioned. If you have been questioned without being given the Miranda warning, tell your lawyer so that he can move to suppress or exclude your statements at trial.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)