d. whether or not such defendant had been advised prior to questioning of
his right to the assistance of counsel, and
e. whether or not such defendant was without the assistance of counsel
when questioned and when giving such confession.
The presence or absence of any of these factors is not always conclusive of the
voluntariness issue.
However, giving a full rights advisement using the DA
Form 3881 and getting a voluntary waiver thereof would a substantially
favorable impact on the judge's determination of the critical admissibility
issue. In this regard, agents and investigators should be cautioned about the
legal "pitfalls" of conducting a "noncustodial, unwarned interrogation" of a
civilian suspect.
Once a civilian has been arrested or detained beyond an
investigative stop, the federal judge is likely to find that any interrogation
conducted thereafter is custodial.
An additional problem arises when the civilian suspect at the time of the
confession was "...under arrest or other detention in the custody of any law
enforcement officer or law enforcement agency...". This confession shall not
be ruled inadmissible solely because of a delay in bringing the suspect "before
a magistrate or other officer empowered to commit persons charges with offenses
against the laws of the United States... if such confession is found by the
trial judge to have been made voluntarily and if the weight to be given the
confession is left to the jury and if such confession was made or given...
within six hours immediately following his arrest or other detention..." [18
U.S.C. section 3501(c) (emphasis added)].
The judge may consider any
confession made after this six hour period to be inadmissible.
Then the
prosecution has the burden to show the judge that the delay beyond the six
hours was based on reasonable transportation problems or distances to the
nearest magistrate or other officer. It should be noted that a federal judge
in a recent case arising at Ft McClellan did not find that the distances and
transportation problems attendant to an arrest of a civilian on post at 0100
hours justified failure to comply with the six hour rule. In order to ensure
compliance with this section, agents and investigators should ensure that they
have a means of contacting the FBI and U.S. Attorney any time a civilian is
arrested and may be tried in federal court. Once contacted, the FBI and U.S.
AUSA-on-call can discuss the case with a federal magistrate to determine the
best way to comply with this section.
In another civilian interrogation matter, agents and investigators should
be aware that all civilian employees of the U.S. government have an additional
right during an interrogation. Whether or not the employee is in custody and
Miranda applies, this employee may request to have a member of the employee's
union present during the interrogation, if the "employee reasonably believes
that the examination may result in disciplinary action against the employee..."
Title 5 U.S. Code, section 7114(a)(2)(B)(i) and NLRB v. Weingarten, Inc., 420
US 251, 43 L Ed 2d 171, 95 S Ct 959 (1975). The investigator or agent has no
affirmative duty to inform the employee of this right, because the Civilian
Personnel Officer has the annual responsibility to inform all civilian
employees of this right. Title 5 U.S. Code, section 7114(a)(3). However, if
the employee requests a union representative, the
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