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General Order Lexington Police Department Lexington, Kentucky GENERAL ORDER BY THE AUTHORITY OF THE CHIEF OF POLICE G.O. 2014-02 Interviews, Interrogations and Confessions Rescinds: SOP BOI 1993-26A References: CALEA Chapter(s) Effective Date: 02/19/16 Distribution Code: B All Department Employees Originally Issued: 2016 I. PURPOSE The purpose of this policy is to provide officers with legally sound procedures for conducting custodial interrogations and to establish guidelines and procedures for the electronic recording of custodial interrogations and confessions. The purpose of this policy is also to provide officers with procedures for interviewing and interrogating juveniles that are both legal and consistent with the limitations in maturity and emotional development characteristic of juveniles. The purpose of this policy is also to establish procedures that ensure that all suspects are accorded their constitutional rights. II. POLICY It shall be the policy of the Lexington Police Department to acknowledge that statements and confessions must be given freely and voluntarily and with due consideration for the suspect’s right to silence and right to counsel. It shall also be the policy of the department to acknowledge that the U. S. Supreme Court has recognized the emotional and developmental differences between adults and juveniles and the implications that this has on the conduct of juvenile interviews in general and interrogations in particular. These differences must be taken into account when an officer conducts an interview or interrogation of a juvenile. It shall also be the policy of the department that all officers observe due process and legal rights of suspects, including juveniles, and protect against charges of police coercion or intimidation during interviews and interrogations. Sworn personnel of the department are responsible for enforcement of the constitutional guarantees provided in the United States Constitution and the Kentucky Constitution, and shall take all necessary precautions to ensure suspects are accorded all rights so guaranteed. III. DEFINITIONS Custodial: Situations where the individual is under arrest or when a “reasonable person” in the suspect’s position would feel that his or her freedom of action has been restricted to the degree consistent with a formal arrest. When determining whether an individual, especially a juvenile, is in custody, the totality of the circumstances must be considered in determining whether a reasonable person would believe that he or she is free to leave. Custodial Interrogation: Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. GO 2014-02 Interviews, Interrogations and Confessions Page 2 of 7 Developmental Disability: A disability that is manifested before the person reaches 22 years of age, which constitutes a substantial disability to the affected individual, and is attributable to mental retardation or related conditions, which include cerebral palsy, down syndrome, fetal alcohol syndrome, spina bifida, epilepsy, autism or other neurological conditions when such conditions result in an impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation. Electronic Recording: An audio or video recording whether using magnetic tape, digital means, or other recording media. Interrogation: The formal, systematic, and intensive questioning of a person arrested for or suspected of committing a crime. This also includes any words or actions by officers that they should know are reasonably likely to elicit an incriminating response. Interview: A non-accusatory interaction designed to gather information and learn more about the details of an incident. Juvenile: An individual who is under the age of 18. Mental Illness/Disability: A state of impaired mental processes, which results in a distortion of a person’s capacity to recognize reality due to hallucinations, delusions, faulty perceptions or alteration of mood, and interferes with an individual’s ability to reason, understand or exercise conscious control over his or her actions. Non-custodial: Situations where the individual is not in custody and is free to leave at any time nor has his or her freedom been restrained to a degree associated with a formal arrest. Persons of Diminished Capacity: Encompasses all persons encountered in the field who exhibit unusual behaviors commonly referred to as irrational, bizarre or unpredictable. These outward observable symptoms could be the result of intoxication, drug use, suicidal indication, mental illness/disability or medical complications. IV. PROCEDURES A. Interviews 1. When conducting interviews, officers shall attempt to adhere to the following guidelines: a. Locate, identify, separate and subsequently interview witnesses separately, in order to protect the integrity of their statements. b. Conduct interviews as soon as possible after the crime has been committed. c. Ensure the security of witnesses, suspects and victims during interviews conducted at department facilities. d. When appropriate, the officer shall document interviews per currently approved department procedures. e. Recording of witness interviews, via video and/or audio, should be completed in GO 2014-02 Interviews, Interrogations and Confessions Page 3 of 7 accordance with currently approved department procedures. B. Interrogations and Administering Miranda 1. Miranda warnings are required and shall be administered prior to “custodial interrogations”, as defined above. 2. The following represent examples of situations that are not “custodial” and do not require issuance of Miranda warnings. a. A Terry stop. b. Questioning during a routine traffic stop or for a minor violation, including DUI stops until a custodial interrogation begins. c. During routine questioning at the scene of an incident or crime when the questions are not intended to elicit incriminating responses. d. During voluntary appearances at police headquarters. e. When information or statements are made spontaneously, voluntarily and without prompting by police. (Note: Follow-up questions that exceed simple requests for clarification of initial statements may require Miranda warnings.) 3. A suspect who has been arrested is now legally in police “custody”. Therefore, if officers wish to interrogate the suspect as to the suspect’s involvement in the crime charged, the officer must warn the suspect of their Miranda rights before interrogation: a. You have the right to remain silent. b. Anything you say can and will be used against you in court. c. You have the right to an attorney before making any statement and may have your attorney with you during questioning. d. If you cannot afford an attorney and desire one, the court will appoint one for you. e. You may stop the questioning at any time by refusing to answer further or by requesting to consult with your attorney. After warning the individual of their Miranda rights, the officer will ask whether the individual understands these rights and wishes to waive the rights before questioning. 4. To secure a waiver, the following questions should be asked and an affirmative answer secured to each: a. Do you understand each of these rights I have explained to you? b. With these rights in mind, do you wish to talk to us now? GO 2014-02 Interviews, Interrogations and Confessions Page 4 of 7 5. Persons with a mental illness, diminished capacity or developmental disability may have limited reasoning and the inability to effectively communicate their thoughts. After the initial Miranda warning is advised, officers may use simple words to modify the Miranda warning to check for a genuine understanding. This may be done as an additional attempt to ensure that the person understands his or her rights. It is also recommended that the interview or interrogation is recorded. 6. Juveniles and Miranda warnings: KRS 610.200 Duties of peace officer. [Excerpted] (1) When a peace officer has taken or received a juvenile into custody on a charge of committing an offense, the officer shall immediately inform the child of his constitutional rights [the Miranda warning] and afford him the protections required thereunder, notify the parent, or if the child is committed, the Department of Juvenile Justice or the cabinet, as appropriate, and if the parent is not available, then a relative, guardian, or person exercising custodial control or supervision of the child, that the child has been taken into custody, give an account of specific charges against the child, including the specific statute alleged to have been violated, and the, and the reasons for taking the child into custody. Note: Officers may use simple, age appropriate words to modify the Miranda warning when information suggests that the juvenile suspect may not understand. 7. Suspects may be interrogated only when they have knowingly and intelligently waived their rights. a. In order for statements or confessions obtained during an interrogation to be admissible, they must be made knowingly, intelligently, and voluntarily as determined by examining the totality of the circumstances. When dealing with juveniles, the totality-of-the-circumstances test takes into account the methods employed in obtaining the statement; the suspect’s mental and physical condition; the length of time over which the questioning took place; and the suspect’s age, education, and any previous experience with law enforcement.
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