Miranda Rights- Ordinary Citizen or Enemy Combatant

I wrote a post a few months ago about Miranda Rights, when they apply and how they come into play during a driving while intoxicated (DWI) investigation. Miranda has been in the news lately with elected government officials calling for a need to modernize the "public safety" exception to Miranda warnings. The public safety exception allows police to ask questions to a person in custody that would incriminate himself. While the US Constitution is clear that a person has a right to remain silent and not incriminate himself, the US Supreme Court carved out an exception to this when the rights of public safety is 'paramount'. For an excellent summary of the public safety safety exception and how North Carolina courts have interpreted it, see Jeff Welty's blog post on Miranda and Public Safety exception.

The Charlotte Observer published an editorial yesterday authored by Charles Krauthammer titled "Modernize Miranda? Yes!. He agreed with Attorney General Eric Holder that the government should be allowed to question terror suspects about all immediate dangers, but also expand the public safety exception to allow full interrogation of the entire event and any other events being planned. He continued on and stated the "liberals' problem with such interrogation begins with their insistence that terrorists be treated as ordinary criminals rather than enemy combatants." I was talking to a few people about this editorial. Everyone agreed that terrorism is a real threat to our nation. Some agreed that terrorists should not be treated  as ordinary criminals. I'm not sure what an ordinary criminal is... 

However if this goes forward, it will apply to everything. It will apply when you are pulled over for a traffic ticket, investigated for a DWI, stopped in Mecklenburg County at a DWI checkpoint, arrested for a drug offense. This will apply in any investigation by a police officer. While many question if terrorists should be treated like ordinary citizens,  others question whether ordinary citizens will be treated like enemy combatants on a daily basis if this goes forward. 

Miranda Rights- The Garrity Exception For Police Officers

Recently the United States Supreme Court handed down two cases that addressed Miranda Rights and if  police officers violated an individual's right against self incrimination under the Fifth Amendment. The rulings in both cases were favorable to the prosecution. Courts have continued to carve out exceptions to Miranda Rights; ruling it doesn't apply, or simply found that the person waived their Miranda Rights. Many people are surprised to know that police officers are often given broader protection against self incrimination than the average citizen.

I recently read a post addressing this issue from the Simple Justice blog about the Garrity Rule. The Garrity rule governs internal investigations for specific governmental employees; under the Garrity rule a public employee can be forced to admit criminal activity during a police investigation because they could be disciplined or fired for not speaking. However, those incriminating statements cannot be used in a prosecution of the criminal case. Each state has different laws- some are more favorable to police officers than others. For example in California, the Government Code contains the Peace Officers Bill of Rights which require, among numerous other provisions, that a police officer's interrogation(s) be conducted at a reasonable hour and any off duty officer will be paid for being present at the interview during off duty hours. North Carolina does not  have such police friendly legislation as this but the Garrity Rule is still in effect.

In light of recent events in Charlotte, including a Mecklenburg County Police Officer accused of multiple counts of sexual assaults and another police officer facing domestic violence charges, this portion of the Simple Justice Blog gave me thought:

So why are police officers given special treatment? Is a crime by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can't be trusted to conduct themselves lawfully, it's a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position. 

Every state has different protections. I should note that North Carolina does not have the generous statute that California affords police officers. However, it will be an uphill battle for a Charlotte criminal defense attorney to get access to internal investigation records from any police officer investigation. Hypothetically, if a person was facing criminal charges in Mecklenburg County, such as a DWI/DUI,  and the arresting police officer was subject to an ongoing internal investigation by Charlotte Mecklenburg Police Department, the criminal defendant wouldn't necessarily have access to police officer statements made during the internal investigation which could potentially reflect a highly compromised investigation.