In certain instances, law enforcement can use private individuals to obtain incriminating statements from suspects or defendants who have previously invoked their Miranda rights and who may be in custody without violating the Miranda rule. In fact, this is only one of a myriad of techniques detectives can utilize to obtain a confession or an incriminating admission. Statements made to a person working for the police, the defendant’s wife , fellow inmate in jail, mother, father, a codefendant, alleged victim or someone who the suspect or defendant believes to be a fellow inmate, codefendant or state employee may be used against the suspect or defendant.
However, there are certain limitations placed on government agents using another individual to obtain an incriminating statement from a unsuspecting defendant. For example, if the government promises to give positive testimony, to speak on the informer’s behalf in exchange for information obtained or if the police officer arranges with the jailer to have the informant and the defendant placed in the same cell, may lead to suppression of the incriminating statements.
However, the prosecutor or law enforcement agency cannot avoid the Miranda rule’s constitutional limitations merely by using a private individual as its agent. The examination for determining whether private individuals are agents of the government when interrogating a suspect is whether, in consideration of all the circumstances, the individuals acted as instrument of the state. To determine whether a private individual acts as an instrument of the state when obtaining incriminating statements from a suspect, courts look to (1) whether the government was aware of and acquiesced in the conduct, and (2) whether the individual intended to assist to the police or further his or her own ends. An important factor used by the Courts in determining the admissibility of incriminating statements is if the informer was acting without direction from the state agent in how to go about obtaining the statement(s) or if the informer had been promised anything in return for his obtaining statements from the unwitting defendant.
I have seen many cases where, although the police are recording the phone call, an alleged victim of a sexual offense, often a child may have contact with the perpetrator while “wired” and ask the perpetrator questions that are designed to illicit an incriminating response. With the recorded apology or “it will never happen again” recorded statement the defendant has little defense. (This scenario is one in which the defendant has not invoked his Miranda rights and is not in custody).
For more information on what to do if you are under investigation for an alleged sexual offense or any other offense please contact The Law Offices of M. James Jenkins and Associates, P.A. We will be glad to offer you competent advice to protect your rights when you need to speak to someone right away. You, as a general rule, should never speak or allow yourself to be questioned about a crime without first contacting your attorney. We are here to help you anyway we can.