Chapter 9
Criminal Law
and Cyber Crime
Case 9.1
Cal.App. 1 Dist.,2010.
People v. Sisuphan
181 Cal.App.4th 800, 104 Cal.Rptr.3d 654, 10 Cal. Daily Op. Serv. 1438, 2010 Daily Journal
D.A.R. 1693
FN1. All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
As the Director of Finance at Toyota of Marin (the dealership), Sisuphan managed the financing contracts for vehicle sales and
worked with lenders to obtain payment for these transactions. He was responsible for ensuring that the proper paperwork was
completed for each sale, and he supervised two finance managers who prepared sales contracts, received payments from
FN2. Sisuphan was not authorized to remove money from the safe and did not have the combination.
Dealership bookkeepers regularly collected payments from the safe and cross-checked these against carbon copies of the receipts
in the receipt book. On the morning of July 5, 2007, one of the bookkeepers discovered in this manner that the payment for the
Peacock purchase was missing. She placed a post-it note for Sisuphan on the corresponding page of the receipt book, inquiring,
“Where’s money?” She also notified the controller, the general sales manager, and Christian that a payment was missing. When
CHAPTER 9: CRIMINAL LAW AND CYBER CRIMES 177
and Hanson trusted Sisuphan and were shocked that he had taken the money.
The next day, Christian terminated Sisuphan’s employment. He prepared a separation report with a narrative that set out the
events relating to the missing money and included a summary of Sisuphan’s confession. Sisuphan reviewed and signed the report
without making any changes and repaid the entire sum of cash he had taken. As defense counsel conceded below, however, “[t]he
checks were lost [and] not returned.” The customer stopped payment on both checks and reissued them.
DISCUSSION
I. Section 512 Does Not Provide a Defense to Embezzlement.
Relying largely on principles of statutory construction, Sisuphan contends that section 512 establishes a defense to embezzlement-
a “limited amnesty” for those who intend at the time of the taking to return the property and do so before criminal charges are filed.
Consistent with his interpretation of section 512, he requested a jury instruction on this purported defense and provided three
proposed instructions for the trial court’s consideration. FN3 The trial court rejected his proposed instructions, concluding that
restoration of the property may be considered only in mitigation of punishment. Sisuphan contends that the trial court erred in
failing to instruct on a defense under section 512 and that “[this] error was exacerbated when the trial court affirmatively mis-
instructed the jury”: “ An intent to deprive the owner of property, even temporarily, is enough. Intent to restore the property to its
owner is not a defense.” Assuming the conditions set forth in section 512 are met, he maintains, intent to restore is a defense, and
no embezzlement will lie, even though the defendant intended to deprive the owner of the property temporarily.
FN3. Sisuphan’s first two instructions set forth his contention that the taking was not unlawful because he “restored the
funds” and require the People to prove beyond a reasonable doubt either that he did not intend at the time of the taking to
restore the property or that he did not fully restore it before criminal charges were filed. The third instruction asserts that a
taking is excusable and not unlawful when the accused both intends to restore the property at the time of the taking and
FN4. Because Sisuphan’s first two instructions allocate the burden of proof to the People to disprove the alleged defense,
we question whether the trial court could properly have given them in any case. (See
People v. Mickey
(1991) 54 Cal.3d
612, 701, 286 Cal.Rptr. 801, 818 P.2d 84 [a trial court must refuse a proposed instruction that is not legally correct].)
Affirmative defenses generally must be raised and proved by the defendant, not negated by the People. (See
People v.
Neidinger
(2006) 40 Cal.4th 67, 75, 51 Cal.Rptr.3d 45, 146 P.3d 502 [“where a statute first defines an offense in
FN5. Section 513 states: “Whenever, prior to an information laid before a magistrate, or an indictment found by a grand
jury, charging the commission of embezzlement, the person accused voluntarily and actually restores or tenders
FN6. Sisuphan also argues that since section 511 precedes section 512 and expressly provides an affirmative defense to
embezzlement, section 512 must be read, in like manner, as an affirmative defense. (See § 511 [defense for “claim of
title”].) We are not persuaded. The most we can say is that each provision addresses the general subject of defenses. We
decline the invitation to jump from this general proposition to the specific conclusion Sisuphan advocates here.
610.) FN7 The original statute’s parallel construction (“of defense or of mitigation of punishment”) suggests that it should be read in
two parts, the first establishing absolutely that intent to restore is not a defense and the second precluding such intent as a
FN7. The italicized language reflects a slight difference in the original wording of section 512. The statute was amended in
CHAPTER 9: CRIMINAL LAW AND CYBER CRIMES 179
“magistrate” and “charging the commission of the offense.” (Stats. 1905 ch. 520, § 1.)
FN8. Margin notes are indicative of legislative intent and are proper considerations in construing a statute. (See
People v.
Clark
(1992) 10 Cal.App.4th 1259, 1265-1266, 13 Cal.Rptr.2d 209.)
The construction of a later, substantially similar version of Field Code section 610 in
People v. Kaye
(1945) 295 N.Y. 9, 64 N.E.2d
268 (
Kaye
), lends forceful support to our analysis. In
Kaye,
New York’s highest court upheld the trial court’s refusal to instruct on a
FN9. Section 610 of the Field Code was modified and enacted in 1881 as section 549 of the New York Penal Code, which
was later renumbered as section 1307 of the New York Penal Law. (
Kaye, supra,
64 N.E.2d at pp. 269-270.) Section
1307 provided: “INTENT TO RESTORE PROPERTY NO DEFENSE. The fact that the defendant intended to restore the
property stolen or embezzled, is no ground of defense, or of mitigation of punishment, if it has not been restored before
FN10. Indeed, the only difference between the original version of section 512 and Field Code section 610 is a comma that
appears after the word “defense” in section 610 but is not included in section 512. (See Field Code, § 610 [“that the
accused intended to restore the property embezzled, is no ground of defense, or of mitigation of punishment, if it has not
been restored …”].) This comma, which also appears in New York Penal Law section 1307, sets apart the absolute phrase
(“no ground of defense”) from the conditional alternative (“or of mitigation of punishment, if it has not been restored …”)
FN11. The court in
Kaye
recognized that sections 512 and 513 of the California Penal Code had two distinct functions and
noted that its task of interpreting section 1307 would have been easier if both sections of the Field Code (§§ 610 and 611)
had been enacted. (
Kaye, supra,
64 N.E.2d at pp. 269-270.)
Our construction also comports with established case law holding that intent to permanently deprive the owner of the property is
not required to establish embezzlement (see, e.g.,
People v. Dolbeer
(1963) 214 Cal.App.2d 619, 625, 29 Cal.Rptr. 573;
People v.
authority, but find, as discussed below, that it does not alter our conclusion. In
People v. McLean
(1902) 135 Cal. 306, 67 P. 770,
the court noted, “It is provided in [section 512] that the fact that the accused intended to restore the property is no defense, unless
the property has been restored before an information has been laid charging the commission of the offense.” (
People v. McLean,
at pp. 307-308, 67 P. 770 [defendant jeweler refused to sell or return jewelry, as promised].) Similarly, in
Talbot,
when corporate
officers appropriated funds for personal reasons and characterized these transactions as “advances,” the court concluded: “the fact
effect that when all proper circumstances are present the fact of restitution ‘is not a ground of defense, but it authorizes the court to
mitigate punishment, in its discretion.’ ” (
Id.
at p. 785, 262 P. 803, italics omitted.) Thus, after reading sections 512 and 513
together, the court appears to have recognized that, even when the statutory conditions are met, restitution is relevant only in the
context of mitigation. Moreover, we find that
Kirwin
lacks persuasive force in any case because the court construed the plain
language of the statute and did not conduct rigorous scrutiny of the legislative history or consider the Legislature’s intent.
(1996) 13 Cal.4th 764, 783, 55 Cal.Rptr.2d 117, 919 P.2d 731.)
We conclude that section 512 does not establish a defense on which the trial court was obligated to instruct the jury.
(1992) 8 Cal.App.4th 1092, 1099, 10 Cal.Rptr.2d 821 (
Edwards
);
Chambers v. Mississippi
(1973) 410 U.S. 284, 302, 93 S.Ct.
1038, 35 L.Ed.2d 297.) We review the trial court’s evidentiary ruling for abuse of discretion. (
People v. Kronemyer
(1987) 189
(1965) 232 Cal.App.2d 674, 679, 43 Cal.Rptr. 60.) Such evidence is admissible “only when [a] defendant shows a relevant and
probative link in his subsequent actions from which it might be inferred his original intent was innocent.” (
Edwards, supra,
at pp.
1100-1101, 10 Cal.Rptr.2d 821.) The question before us, therefore, is whether evidence that Sisuphan returned the money
reasonably tends to prove he lacked the requisite intent at the time of the taking. (See Evid.Code, § 210 [evidence is relevant if it
has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].)
breach of that trust by acting outside his authority in his use of the property. (See § 503 [“Embezzlement is the fraudulent
appropriation of property by a person to whom it has been [e]ntrusted”];
Talbot, supra,
220 Cal. at p. 15, 28 P.2d 1057 [relying on
the dictionary definition of fraud: “Any act … that involves a breach of duty, trust, or confidence, and which is injurious to another, or
by which an undue advantage is taken of another” in concluding that “it is the immediate breach of trust that makes the offense”];
CALCRIM No. 1806 [“A person acts fraudulently when he or she takes undue advantage of another person or causes loss to that
FN12. “[T]hat … the property was never ‘applied to the embezzler’s personal use or benefit’ …” is no defense. (See
In re
Basinger
(1988) 45 Cal.3d 1348, 1363-1364, 249 Cal.Rptr. 110, 756 P.2d 833.) The actus reus of the crime of
embezzlement is the conversion of property. (See
id.
at p. 1363, 249 Cal.Rptr. 110, 756 P.2d 833 [“Embezzlement
FN13. Some courts have framed the intent element as an intent to deprive the owner of the property “unlawfully.” (See,
e.g.,
People v. Petrin
(1954) 122 Cal.App.2d 578, 581-582, 265 P.2d 149;
People v. Cannon
(1947) 77 Cal.App.2d 678,
689, 176 P.2d 409.)
FN14. Sisuphan’s claim that he acted for the dealership’s benefit does not change this result. He mischaracterizes the
1057.)
Case 9.2
U.S.,2009.
Herring v. U.S.
129 S.Ct. 695, 172 L.Ed.2d 496, 77 USLW 4047, 09 Cal. Daily Op. Serv. 545, 2009 Daily Journal
D.A.R. 632, 21 Fla. L. Weekly Fed. S 582
Supreme Court of the United States
Bennie Dean HERRING, Petitioner,
v.
UNITED STATES.
No. 07-513.
Argued Oct. 7, 2008.
Decided Jan. 14, 2009.
Chief Justice ROBERTS delivered the opinion of the Court.
The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause
or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief
turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the
CHAPTER 9: CRIMINAL LAW AND CYBER CRIMES 183
county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson
asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer
database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed
the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed
Herring as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in
Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17-23.
There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond
to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to
Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier.
Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the
sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant
for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted
Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun
and drugs, just a few hundred yards from the sheriff’s office.
Id.,
at 26, 35-42, 54-55.
II
When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or
seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth
Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some
other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there
was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied.
184 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
1218. The question presented treats the error as a “negligen[t]” one, see Pet. for Cert. i; Brief in Opposition (I), and both
parties briefed the case on that basis.
B
[7] These principles are reflected in the holding of
Leon
: When police act under a warrant that is invalid for lack of probable cause,
the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search
warrant. 468 U.S., at 922, 104 S.Ct. 3405. We (perhaps confusingly) called this objectively reasonable reliance “good faith.”
Ibid.,
n. 23, 104 S.Ct. 3405. In a companion case,
Massachusetts v. Sheppard,
468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984),
we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to
FN3. We thus reject Justice BREYER’s suggestion that
Evans
was entirely “premised on a distinction between judicial
errors and police errors,”
post,
at 710 (dissenting opinion). Were that the only rationale for our decision, there would have
2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law
enforcement conduct. As we said in
Leon,
“an assessment of the flagrancy of the police misconduct constitutes an important step in
the calculus” of applying the exclusionary rule. 468 U.S., at 911, 104 S.Ct. 3405. Similarly, in
Krull
we elaborated that “evidence
should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” 480 U.S., at 348-349, 107 S.Ct. 1160 (quoting
182. Even the Government seemed to acknowledge that the “seizure was an outrage.”
Id.,
at 391, 40 S.Ct. 182.
Equally flagrant conduct was at issue in
Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which overruled
Wolf
v. Colorado,
338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and extended the exclusionary rule to the States. Officers forced
open a door to Ms. Mapp’s house, kept her lawyer from entering, brandished what the court concluded was a false warrant, then
FN4. We do not quarrel with Justice GINSBURG’s claim that “liability for negligence … creates an incentive to act with
greater care,”
post,
at 708, and we do not suggest that the exclusion of this evidence could have
no
deterrent effect. But
our cases require any deterrence to “be weighed against the ‘substantial social costs exacted by the exclusionary rule,’ ”
Illinois v. Krull,
480 U.S. 340, 352-353, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (quoting
Leon,
468 U.S., at 907, 104 S.Ct.
3405), and here exclusion is not worth the cost.
*703 Our decision in
Franks v. Delaware,
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), provides an analogy. Cf.
Leon,
supra,
at 914, 104 S.Ct. 3405. In
Franks,
we held that police negligence in obtaining a warrant did not even rise to the level of a
Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. We held that the
Constitution allowed defendants, in some circumstances, “to challenge the truthfulness of factual statements made in an affidavit
186 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
The pertinent analysis of deterrence and culpability is objective, not an “inquiry into the subjective awareness of arresting officers,”
Reply Brief for Petitioner 4-5. See also
post,
at 710, n. 7 (GINSBURG, J., dissenting). We have already held that “our good-faith
inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the
search was illegal” in light of “all of the circumstances.”
Leon,
468 U.S., at 922, n. 23, 104 S.Ct. 3405. These circumstances
frequently include a particular officer’s knowledge and experience, but that does not make the test any more subjective than the
one for probable cause, which looks to an officer’s knowledge and experience,
Ornelas v. United States,
517 U.S. 690, 699-700,
116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), but not his subjective intent,
Whren v. United States,
517 U.S. 806, 812-813, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996).
4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the
conduct at issue was not so objectively culpable as to require exclusion. In
Leon
we held that “the marginal or nonexistent benefits
produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant
cannot justify the substantial costs of exclusion.” 468 U.S., at 922, 104 S.Ct. 3405. The same is true when evidence is obtained in
objectively reasonable reliance on a subsequently recalled warrant.
FN5. Justice GINSBURG notes that at an earlier suppression hearing Morgan testified-apparently in confusion-that there
had been miscommunications “[s]everal times.”
Post,
at 706, n. 2 (quoting App. to Pet. for Cert. 17a). When she later
realized that she had misspoken, Morgan emphatically corrected the record. App. 61-62. Noting this, the District Court
found that “Morgan’s ‘several times’ statement is confusing and essentially unhelpful,” and concluded that there was “no
Case 9.3
384 U.S. 436, 10 Ohio Misc. 9, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974
Supreme Court of the United States
Ernesto A. MIRANDA, Petitioner,
v.
STATE OF ARIZONA.
The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints
society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with
the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for
procedures which accure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be
compelled to incriminate himself.
written tracing its ramifications and underpinnings. Police and prosecutor have speculated on its range and desirability. We
granted certiorari in these cases, in order further to explore some facets of the problems, thus exposed, of applying the privilege
188 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies
and courts to follow.
(1965). The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties,
12 U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929
(1965).
For example, the Los Angeles Police Chief stated that ‘If the police are required * * * to * * * establish that the defendant
was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or
confession, and that he intelligently waived these guarantees * * * a whole Pandora’s box is opened as to under what
circumstances * * * can a defendant intelligently waive these rights. * * * Allegations that modern criminal investigation can
in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police
Interrogation of Arrested Persons: A Skeptical View, 52 J.Crim.L., C. & P.S. 21 (1961).
We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an
application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the
Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are
and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his
apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial
character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and
to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total
converted by precedent into importent and lifeless formulas. Rights declared in words might be lost in reality. And this has been
recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.’
This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual
could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed
in the Constitution had not become but a ‘form of words,’ , in the hands of government officials. And it is in this spirit, consistent
however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking
there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with
an attorney and thereafter consents to be questioned.
This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.
1.
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned
while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by
police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these
cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases,
the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They
all thus share salient features— incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-
incriminating statements without full warnings of constitutional rights.
An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in
depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place
incommunicado. From extensive factual studies undertaken in the early 1930’s, including the famous Wickersham Report to
Congress by a Presidential Commission, it is clear that police violence and the ‘third degree’ flourished at that time. In a series of
190 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern.
Unless a proper limitation upon custodial interrogation is achieved—such as these decisions will advance—there can be no
assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham Commission
Report, made over 30 years ago, is still pertinent:
‘To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord
Chancellor of England (Lord Sankey): ‘It is not admissible to do a great right by doing a little wrong. * * * It is not sufficient to do
justice by obtaining a proper result by irregular or improper means.’ Not only does the use of the third degree involve a flagrant
violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and
prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, ‘It is a
short cut and makes the police lazy and unenterprising.’ Or, as another official quoted remarked: ‘If you use your fists, you are
not so likely to use your wits.’ We agree with the conclusion expressed in the report, that ‘The third degree brutalizes the police,
hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.” IV
National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931).
Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have
stated before, ‘Since this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused
is not the only hallmark of an unconstitutional inquisition.’ . Interrogation still takes place in privacy. Privacy results in secrecy and
this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information
CHAPTER 9: CRIMINAL LAW AND CYBER CRIMES 191
O’Hara, supra, at 99.
To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the
suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to
be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather
than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an
unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral
seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a
psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations
to the contrary are dismissed and discouraged.
Inbau & Reid, supra, at 34—43, 87. For example, in , the interrogator-psychiatrist told the accused, ‘We do sometimes
things that are not right, but in a fit of temper or anger we sometimes do things we aren’t really responsible for,’ and
again, ‘We know that morally you were just in anger. Morally, you are not to be condemned,’ .
Inbau & Reid, supra, at 43—55.
The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes
the efficacy of these characteristics in this manner:
‘In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter
many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are
employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and
without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his
inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in
acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the
interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of
domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be
used only when the guilt of the subject appears highly probable.’
192 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
let him sit in the corner, let him think he is going to get a shellacking.’
The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes
which require identification or which run in series. In the identification situation, the interrogator may take a break in his
questioning to place the subject among a group of men in a line-up. ‘The witness or complainant (previously coached, if
necessary) studies the line-up and confidently points out the subject as the guilty party.’ Then the questioning resumes ‘as though
there were now no doubt about the guilt of the subject.’ A variation on this technique is called the ‘reverse line-up’:
O’Hara, supra, at 105—106.
‘The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him
with diferent offenses. It is expected that the subject will become desperate and confess to the offense under investigation in
order to escape from the false accusations.’
Id., at 106.
The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who
asks for an attorney or relatives. The examiner is to concede him the right to remain silent. ‘This usually has a very undermining
effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a
concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator.’ After this
psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect’s refusal to talk:
Inbau & Reid, supra, at 111.
‘Joe, you have a right to remain silent. That’s your privilege and I’m the last person in the world who’ll try to take it away from
you. If that’s the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours
and you called me in to ask me about this and I told you, ‘I don’t want to answer any of your questions.’ You’d think I had
something to hide, and you’d probably be right in thinking that. That’s exactly what I’ll have to think about you, and so will
everybody else. So let’s sit here and talk this whole thing over.’
Ibid.
CHAPTER 9: CRIMINAL LAW AND CYBER CRIMES 193
In the cases before us today, given this backgound, we concern ourselves primarily with this interrogation atmosphere and the
evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special interrogation room
where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral admissions to the police after
interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney
later the same evening. In No. 761, Westover v. United States, the defendant was handed over to the Federal Bureau of
Investigation by local authorities after they had detained and interrogated him for a lengthy period, both at night and the following
morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in
No. 584, California v. Stewart, the local police held the defendant five days in the station and interrogated him on nine separate
occasions before they secured his inculpatory statement.
In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for
adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases,
the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The
potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously
disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro
who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent
psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at
the outset of the interrogation to insure that the statements were truly the product of free choice.
It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his
examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally
destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most
cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are
employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the
product of his free choice.
The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an
example in Professor Sutherland’s recent article, :
‘Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it
to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but
themselves and their convenient ‘withnesses,’ keep her secluded there for hours while they make insistent demands,
weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to
execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy
and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most
righteous intentions. Would any judge of probate accept the will so procured as the ‘voluntary’ act of the testatrix?’