Monday, July 21, 2014

Custodial Interviews By Child Protective Workers and Miranda

    A common practice after the arrest after an arrest for child sex crimes is for a Child Protective Services (CPS) Investigator to go the jail to interview the suspect regarding a CPS investigation of the same incident underlying the suspect’s arrest. In many cases the  CPS Investigator does not read the suspect Miranda warnings or obtain a Miranda waiver before conducting these custodial interrogations. The ostensible rationale is that the CPS Investigators are not law enforcement officers and they are not conducting these custodial interrogations with regard to the criminal charges, but rather with respect to a possible civil proceeding arising out of the same alleged conduct. And after incriminating statements are obtained, the CPS Investigator shares them with police and prosecutor, as required by Social Services Law §§411, 413, 424.
    Regardless of whether the police invited this type of interrogation, the statements thereby obtained should be inadmissible under Miranda.
    First, there can be no dispute that the incarcerated suspect was in custody. The focus of the suppression court will be whether the questioning constitutes interrogation by a “public servant engaged in law enforcement activity or by a person then acting under [their] direction or in cooperation with [them]” (CPL § 60.45[2][b]) under Miranda.
    Typically, these CPS workers are members of a county-wide, multidisciplinary team comprised of members of the District Attorney's office, police and social service agencies and cooperate with the District Attorney’s office by providing information when requested.
    It is irrelevant that the police and District Attorney might not have expressly requested that the CPS Investigator interview defendant, since such a request is unnecessary in light of the statutory provisions both that the interview be performed and that the CPS caseworkers cooperate with the District Attorney's office regarding the case.
    As the Appellate Division, Third Department, held in People v Wilhelm (34 AD3d 40 [3d Dept 2006]):
    we are satisfied that the CPS caseworkers involved here had a "cooperative working arrangement" with and were acting as agents of the police and prosecutor in interviewing defendant and relaying her incriminating statements (People v Greene, 306 AD2d 639, 641).   Moreover, contrary to the People's assertion that the CPS investigation  remained separate from that performed by the District Attorney's office,"the subject of the interrogation and the subject of the criminal charges [were] so inextricably interwoven in terms of both their temporal proximity and factual interrelationship as to render unavoidable the conclusion that any interrogation concerning the [allegations in the hotline report] would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself" (People v Townes, 41 NY2d 97, 104 [1976]). It is therefore immaterial that the CPS caseworkers considered their investigation separate from that of the police and that they did not characterize the police as being in charge of the multidisciplinary team....  As we have stated: “The regulatory mandate that a CPS caseworker conduct face-to-face interviews with subjects of child abuse reports (18 NYCRR 432.2[b][3][ii][a] ) cannot overcome a subject's constitutional right if the CPS caseworker is an agent for the police at the time of the interview. That mandate can be complied with either by arranging an interview with the subject and counsel or merely completing the information gathering by the CPS caseworker without the ability to use the statement in any criminal proceeding” (People v Greene, supra at 641).
(People v Wilhelm, 34 AD3d 40, 45–50 [3d Dept 2006].)
    Further, two holdings of the United States Supreme Court on the need for Miranda warnings for custodial interrogations conducted by government officials who are not law enforcement officers are both instructive and controlling.
    In Mathis v United States (391 US 1 [1968]), the Court considered the applicability of Miranda to questioning of Mathis, a state prisoner, by an IRS agent regarding discrepancies in two of his federal tax returns, during which Mathis made incriminating statements that were later introduced at his criminal trial on charges of tax fraud. The Government argued  that Miranda did not apply since the questioning had been part of a routine tax investigation, civil in nature, unrelated to the reason Mathis was in custody(Id. at 2). The Supreme Court rejected this fact as dispositive, noting that “tax investigations frequently lead to criminal prosecutions, just as the one here did,” and that any tax investigation could lead to a criminal prosecution (Mathis, 391 US at 4). In dismissing the Government's argument that Miranda did not apply because the questions asked of Mathis were part of a routine civil tax investigation, the Supreme Court noted that "[t]hese differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody."  (Mathis, 391 US at 4).
    In Estelle v Smith (451 US 454 [1981]) the United States Supreme Court considered when the questioning by a person who is not a law enforcement officer is subject to the requirements of Miranda. The issue in Estelle was whether the statements  made to a psychiatrist at a court ordered competence examination, in which Miranda warnings had not been administered, could be used at the penalty phase of the defendant’s court proceedings. The Supreme Court, in holding that the defendant’s Miranda and Fifth Amendment rights had been violated, explained that
    When [the doctor] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was “faced with a phase of the adversary system” and was “not in the presence of [a] perso[n] acting solely in his interest.” (citation omitted). Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.
Estelle v Smith, 451 US 454, 467 (1981).
    Thus, statements obtained by  CPS workers during custodial questioning of suspects, without Miranda warnings and waivers should be inadmissible as violative of Miranda.

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