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.
b. Officers conducting custodial interrogation of deaf suspects (or others who, for any reason, such as an individual with limited English proficiency who has an inability to speak and understand English, are not able to understand their rights) should notify their supervisor and make arrangements to have an interpreter present during the advising of the rights and the questioning. Current department procedures regarding the location, employment, and use of interpreters should be followed.
c. Officers arresting deaf suspects shall notify their immediate supervisor and make arrangements to procure the assistance of an interpreter in accordance with department policy and state and federal law.
8. Threats, false promises or coercion to induce suspect statements is prohibited.
C. Invoking the Right to Silence GO 2014-02 Interviews, Interrogations and Confessions Page 5 of 7
1. When a suspect invokes the right to remain silent, all interrogation shall terminate immediately.
2. Although a suspect’s invocation of the right to silence requires immediate suspension of questioning, it does not preclude a resumption of questioning at a later time.
3. If questioning is resumed, after a reasonable amount of time, the Miranda warnings must again be administered, and a new waiver must be obtained.
a. If the custodial suspect or arrestee then waives his or her rights, the officer may resume interrogation.
4. Officers may interrogate a suspect who has previously invoked the right to silence, if, after the passage of time, the suspect initiates communication with officers.
a. However, prior to questioning Miranda warnings shall be re-administered.
D. Invoking the Right to Counsel
1. When a suspect invokes the right to counsel, all interrogation shall cease immediately.
2. When a suspect makes reference to counsel but the suspect’s intentions are unclear, officers may question the suspect further to clarify the suspect’s intentions.
3. The suspect may not again be interrogated about the crime charged, other crimes, or by other officers (from this or other agencies) unless:
a. The suspect’s attorney is present at the questioning; or
b. The suspect initiates new contact with the police,
1. Miranda rights must again be administered before any questioning may take place.
2. Officers should also document on the currently approved electronic case report that the suspect initiated the communication.
c. Or, a minimum of a 14 day break in interrogation custody has passed since the suspect initially invoked the right to counsel (see Maryland v Shatzer).
E. Documenting Statements and Confessions
1. The circumstances surrounding the conduct of interrogations and recording of such interrogations and confessions shall be fully documented on the currently approved electronic case report.
2. Documentation should include, at a minimum, the following criteria:
a. The location, date, time and duration of interrogation GO 2014-02 Interviews, Interrogations and Confessions Page 6 of 7
b. The identities of officers or others present during the interrogation
1. Normally, no more than two (2) officers should simultaneously actively participate in an interview or interrogation. Exceptions must be approved and documented, per current department procedures, on the currently approved electronic case report.
c. The time that Miranda warning was given and the suspect/arrestee’s responses.
d. The nature, times and duration of breaks in questioning provided the suspect for food, drink, use of lavatories or for other purposes.
1. Custodial suspects/arrestees shall have access to a restroom, water, breaks or other such amenities as needed.
F. Electronic Recording of Interrogations and Confessions
1. Electronic recording of interviews and interrogations should be conducted in accordance with applicable laws.
2. Officers should electronically record custodial interrogations conducted in a place of detention involving felony crimes.
G. Recording Protocol
1. Interrogations and confessions shall be recorded in their entirety, starting with the interrogator’s entrance into the interview room and concluding upon departure of the interrogator and suspect.
a. Any lapse in the recording for comfort breaks or other reasons shall be accounted for on the recording.
2. Recording attorney-client conversations is prohibited where an expectation of privacy would reasonably exist.
3. Recordings of interviews are considered evidence and shall be handled as such. In addition, the following shall apply:
a. Unused recording media shall always be used for interrogations.
b. Both the original and copies of all recording media shall be protected from re-recording.
1. The original recording shall never be altered.
2. Enhancements or excerpts may be made from a copy of the original recording.
3. Any recording will be clearly labeled as being the original or a copy. GO 2014-02 Interviews, Interrogations and Confessions Page 7 of 7
c. The reporting detective’s follow-up report shall note if and how the interview was recorded.
4. All recordings shall be governed by the department’s currently approved procedures for the handling and preservation of evidence.
5. Recordings shall be retained by the department in secure storage for a period of time as defined by applicable federal law, state statutes, and department policy.
a. All employees are prohibited from altering or deleting original records until federal, state and local retention schedule timelines have been met.