WEBVTT 2 00:00:03.766 --> 00:00:21.312 HONOR. SPECIAL DEPUTY AGAIN. FRANK MUROSKI: FRANK MUROSKI. JOHN K. MC 3 00:00:21.312 --> 00:00:36.743 NAMARA, JR.: JOHN MACNAMARA. AIDAN P. O'CONNOR: PASHMAN, STEIN, WALDER 4 00:00:36.743 --> 00:00:42.330 AND HAYDEN. CHIEF JUSTICE RABNER: GOOD MORNING, COUNSEL AND WELCOME. MR. 5 00:00:42.330 --> 00:00:47.081 DO OUTEIRO. MONICA DO OUTEIRO: THANK YOU, YOUR HONOR. IF I COULD INITIALLY 6 00:00:47.081 --> 00:00:49.749 RESERVE A FEW MINUTES FOR REEBBBUTTAL IF NECESSARY. CHIEF JUSTICE RABNER: 7 00:00:49.749 --> 00:00:53.843 THAT'S FINE. MONICA DO OUTEIRO: THANK YOU. THIS COURT RECENTLY CALLED ON 8 00:00:53.843 --> 00:01:00.252 POLICE OFFICERS TO LEARN THE LAW IN ADVANCE AND ENFORCE IT CORRECTLY. IN 2003, LAW 9 00:01:00.252 --> 00:01:06.448 ENFORCEMENT LEARNED THE BRIGHT LINE RULE FOOF A . THAT THEY MUST IN-FORM A SUSSPPPECT 10 00:01:06.448 --> 00:01:14.771 THAT A CRIMINAL COMPLAINT. AS INTENDED BY THE DD COURT, OFFICERS WERE ABLE TO LEARN AND 11 00:01:14.771 --> 00:01:20.428 ENFORCE THIS BRIGHT LINE RULE CORRECTLY. SIX YEARS LATER, THIS COURT RE-AFFIRMED THE 12 00:01:20.428 --> 00:01:28.038 LIMITED FOCUS OF THE RULE RE-FFUSEIINGI TO EXPAND THE A D RULE TO ALL INFORMATION THAT 13 00:01:28.038 --> 00:01:36.070 COULD BE USEFUL TO AN INTER GEE. WHILE THIS COURT HAS ADOPTED RULES DURING THE MIRANDA 14 00:01:36.070 --> 00:01:44.487 WARNING AND WAIVER, IN NYHAMMER REFFFUSED TO DO SO CIRCUMSTANCES TEST FOR PTTHAT -- FOR 15 00:01:44.487 --> 00:01:49.657 AN IN-FLEXIBLE PER SE RULE. IN DOIN SO, THIS COURT DISTINGUISHED BETWEEN THE 16 00:01:49.657 --> 00:01:54.269 ISSUANCE OF A CRIMINAL COMPLAINT AND ARREST WARRANT BY A JUDGE, WHICH IS AN OBJECTIVELY 17 00:01:54.269 --> 00:02:07.622 VERYIIIFIABLE AND BRIGHT LINE STEP OR A DISCRETE FACT BUT RATHER AN ELUSIVE SKPT THAT AR. 18 00:02:07.622 --> 00:02:14.362 WHEN CALLED UPON TO AGAIN ADDRESS DD JUST TWO YEARS AGO, THIS COURT FFIRMED 19 00:02:14.362 --> 00:02:20.682 THE APPLICABILITY OF THE RULE PROVIDEIING GUIDANCE ABOUT WHEN AND HOW THE PROVIDED 20 00:02:20.682 --> 00:02:26.677 GUIDANCE SHOULD OCCUR. DESPITE ALMOST TWO DECKAADES OF CLEAR GUIDEAANCE IN THIS COURT 21 00:02:26.677 --> 00:02:33.801 IN THE ABSENCE OF THE RULE NOT WORKING OR THE COURTS OF OUR SISTER STATE, THE APPELLATE 22 00:02:33.801 --> 00:02:42.373 DIVISION MAJORITY CRAFTED A NEW RULE FOOOF LAW THAT GROEFL EXPANDS ADD. THIS NEW RULE 23 00:02:42.373 --> 00:02:51.883 WHICH WOULD REQUIRE POLICE TO ADVISE AN ARTIE OF CRIMES DOES THE VERY THING THAT JUST 24 00:02:51.883 --> 00:02:58.457 SUSSWEIN'S OPINION WARNS OF. THE STATE DOES NOT BELIEVE IT IS BEING OVERLY 25 00:02:58.457 --> 00:03:02.977 PEFK IN SAYING THAT THE APPELLATE DIVISION's MAJORITY RULE IS ONE THAT LAW ENFORCEMENT 26 00:03:02.977 --> 00:03:09.169 CAN TRY TO LEARN BUT WILL NOT BE ABLE TO ENFORCE CORRECTLY IN LL CASES, LEADING TO NECESSARY 27 00:03:09.169 --> 00:03:16.573 LEE LITIGATION INTO AN UN-NECESSARILY COMPLEX ONE. THE COMPLEXITY AND 28 00:03:16.573 --> 00:03:21.894 UN-CCERTAINTY OF THIS NEW RULE IS ESSENTIALLY ADMITMTED BY THE APPELLATE DIVISION IN ITS 29 00:03:21.894 --> 00:03:28.799 FOOTNOTE SIX WHERE IN ORDER TO PROVIDE GUIDANCE WITH REGARD TO ITS NEW RULE SAYS THAT 30 00:03:28.799 --> 00:03:34.780 THROUGH AN INVESTIGATION AND NOT TO SPOTANEOUSLY DEVELOP PROBABLE CAUSE ARISEIING WHEN 31 00:03:34.780 --> 00:03:39.683 RESPONDING TO A CRIME SCENE OR AFTER WITNESSING A CRIME BEING COMMITTED, PULLING THIS 32 00:03:39.683 --> 00:03:43.777 LIMITATION FROM WITT AND THE AUTOMOBILE EXCEPTION. RE-LLLIANCE ON THE SUPRESSION 33 00:03:43.777 --> 00:03:54.179 LAW AND WITT's RULE FOOOF SPONTANEITY AS IT DOES IN ITS NATURAL HBITAT OF THE AUTOMOBILE 34 00:03:54.179 --> 00:04:04.112 EXCEPTION. TH SPON 98 TEA OF WHETHER POLICE COULD HAVE PREVIOUSLY OTAINED A SEARCH 35 00:04:04.112 --> 00:04:12.058 WARRANT FOR THE VEHICLE DID NOT SIMILARLY CORRELATE TO THE CERTAINTY AN ARRESTEE WILL 36 00:04:12.058 --> 00:04:16.618 FACE IN THE FUTURE. SUPPORTED BY THE FOURJTTTH AMENDMENT -- FOR FOURTH AMENDMENT PURPOSES 37 00:04:16.618 --> 00:04:24.271 BY PROBABLE CAUSE CAN BE COMPLEX AND FLUID AND PROVIDE IN-PPUT NOT NLY FROM OFFICERS. 38 00:04:24.271 --> 00:04:29.848 AND SOMETIMES MAY EVEN BE DEPENDENT NOT NLY ON INFORMATION GLEANED DURING THE ENTIRE 39 00:04:29.848 --> 00:04:39.261 INVESTIGATION. WE CANNOT LOSE SIGHT OF THE PURPOSE OF MIRANDA AND STATE LAW 40 00:04:39.261 --> 00:04:43.823 PROTECTIONS WHICH ARE TO ENSURE A KNOWING AND VOLUNTARY WAIVER OF RIGHTS. ONE THAT IS 41 00:04:43.823 --> 00:04:49.849 A FREE CHOICE, A DELIBERATE CHOICE, BASED ON A FULLAWARENESS OF THOSE RIGHTS AS ADVISED 42 00:04:49.849 --> 00:04:56.391 BY THE ARRESTEE BY LAW FIRM. AS THIS COURT STATED IN NYHAMMER ADOPTING THE 43 00:04:56.391 --> 00:05:05.006 LANGUAGE OF SPRING, A VAID WAIVER DOES NOT REQUIRE MAKEINGI HIS DECISION OR ALL 44 00:05:05.006 --> 00:05:09.771 INFORMATION THA MIGHT AVFFFFEC THEIR DECISION TOCONFESS SUSPICIONS OF POLICE EVEN WHEN 45 00:05:09.771 --> 00:05:16.284 THEY HAVE A WARRANTLESS ARREST FALLS WITHIN THIS LANGUAGE FROM NYHAMMER AND NOT WITHIN 46 00:05:16.284 --> 00:05:22.802 THE FOUND BY THE APPELLATE DIVISION. THE STATE SUBMITS THIS INFORMATION CAN AND SHOULD BE 47 00:05:22.802 --> 00:05:28.284 EVALUATE ND THE TOTALITY OF THE CIRCUMSTANCES ANALYSIS WHICH ONLY IN SOME UNUSUAL 48 00:05:28.284 --> 00:05:34.534 CIRCUMSTANCES WILL WARRANT SUPPRESSION OF THE STATEMENT. SUCH UNUSUAL CIRCUMSTANCES ARE 49 00:05:34.534 --> 00:05:38.654 SIMPLEYYY NOT PRESENTED HERE. WITH REGARD TO THE LWER COURT'S SECOND RULING 50 00:05:38.654 --> 00:05:44.674 ON THE WADE HENDERSON HEARING TESTIMONY AT TRIAL, THE STATE SUBMITS THAT HOLDING IS SIMILARLY 51 00:05:44.674 --> 00:05:50.874 FLAWED. AT ITS MOST BASIC THE APPELLATE DIVISION PRIOR IN-CONSISTENT STATEMENT THAT WAS 52 00:05:50.874 --> 00:05:56.848 HELD ADDMISSIBLEM AT THE PRE-TTTRIAL HEARING WITH THOSE REQUIRED HEARING TESTIMONY UNDER 53 00:05:56.848 --> 00:06:04.958 804B1A AND THE CONFRONTATION CLAUSE. THIS CAUSED THE LOWER COURT TO NOT ONLY THE REQUIREMENT 54 00:06:04.958 --> 00:06:09.261 OF THE AVAILABILITY OF THE WITNESS FOR CROSS-EXAMINATION BEFORE THE TRIER OF FACT, 55 00:06:09.261 --> 00:06:15.304 SOMETHING THAT COULD NEVER BE MET IN THE UN-AAAVAILABLE WITNESS KAEKS, BUT ALSO TO 56 00:06:15.304 --> 00:06:19.376 IGNORE THE OPPORTUNITY FOR AND THE ACTUAL CROSS-EXAMINATION THAT DEFENDANT CONDUCTED AT 57 00:06:19.376 --> 00:06:25.065 PTTTHAT HEARING AND WHICH WAS ALSO READ TO THE JURY. WHILE IT IS TRUE THAT OUR LAW 58 00:06:25.065 --> 00:06:31.362 PROHIBITS THE UN-TESTED BY CROSS-EXAMINATION AND HAS A PREFERENCE FOR CROSS-EXAMINATION 59 00:06:31.362 --> 00:06:40.400 CONFRONTATION CLAUSE MAKE CLEAR THAT THIS PREFERENCE WILL BOW. NOT FINDING THAT THOSE 60 00:06:40.400 --> 00:06:44.542 EXCEPTIONS WERE MET HERE, THE STATE SUBMITS THAT THE APPELLATE DIVISION ERRED. FIRST 61 00:06:44.542 --> 00:06:51.699 THE APPELLATE DIVISION IMPROPERLY FOUND THAT THE WITNESS'S FAMED SHE'S TALKING TOO TOO 62 00:06:51.699 --> 00:06:59.028 TOO FAST. BROAD DIEFINITIO THAT THE STATE IS NOT SUPPORTED BY LAUWWW. BUT THE CONFRONTATION 63 00:06:59.028 --> 00:07:05.514 CLAUSE IN T HE STATE WOUL SUBMIT THE SIMILAR LANGUAGE IN OUR RULE PROVIDE WILL RE-FFFRAIN 64 00:07:05.514 --> 00:07:12.807 FROM GIVING TESTIMONY. TO THECONTRARY THE CONFRONTATION CLAUSE AND AGAIN THE STATE 65 00:07:12.807 --> 00:07:21.073 SUBMITS ARE SIMILAR LANGUAGE AND OUR EVIDENCE RULE CAN BE SATISFIE WHEN THE DEFENS THROUGH 66 00:07:21.073 --> 00:07:24.804 CROSS-EXAMINATION. THE APPELLATE DIVISION GNORED THA THAT'S WHAT OCCURRED HERE. THERE WERE 67 00:07:24.804 --> 00:07:30.371 NO LIMITS PLACED ON THE DEFENSE's CROSS-EXAMINATION BY THE COURT OR THE 68 00:07:30.371 --> 00:07:36.155 PROSECUTOR AT THE HEARING AND IN FACT WHAT DID OCCUR HERE WAS A WIDE RANGEIING 69 00:07:36.155 --> 00:07:40.553 CROSS-EXAMINATION THAT EXPLORED NOT NLY THE IDENTIFICATION BUT THE STATEMENT THAT -- 70 00:07:40.553 --> 00:07:45.459 EXCUSE ME -- THAT THE WITNESS GAVE IN WHICH THE IDENTIFICATION WA CNTAINED. DEFENDANT 71 00:07:45.459 --> 00:07:50.215 THROUGH COUNSEL WAS ABLE TO SDMROR THROUGH THAT HEARING THAT THE VICTIM's BASE THROUGH 72 00:07:50.215 --> 00:07:54.613 LACK OF MEMORY, THE SOURCE OF COUNTY OF THE INFORMATION CONTAINED IN THE STATEMENT, 73 00:07:54.613 --> 00:07:59.348 DEFENDANT'S LACK OF MOTIVE, THE VICTIM's FEAR OF THE POLICE AND THE VICTIM's PRIOR CRIMINAL 74 00:07:59.348 --> 00:08:05.459 RECORD. THE APPELLATE DIVISION ALSO CONFLATED THE RULES REQUIREMENT OF A SIMILAR MOTIVE 75 00:08:05.459 --> 00:08:10.157 FOR CROSS-EXAMINATION WITH THE PURPOSE OF THE IDENTIFICATION HEARING. THE APPELLATE 76 00:08:10.157 --> 00:08:17.026 DIVISION SAID IT WAS LIMITED TO THE VICTIM's OUT OF COURT IDENTIFICATION ATTACK THE VICTIM's 77 00:08:17.026 --> 00:08:23.491 CREDIBILITY SPECIFICALLY WITH REGARD TO THE VORACITY OF THEIR IDENTIFICATION OF DEFENDANT 78 00:08:23.491 --> 00:08:27.287 AS THE SHOOTER. THE STATE SUBMITS THAT FINDING BY THE APPELLATE DIVISION IS SIMPLEYYYY 79 00:08:27.287 --> 00:08:33.731 NOT TRUE. LEGALLY AS STATE VERSUS HENDERSON REMAINS CLEAR OUT OF KCOURT IDENTIFICATIO 80 00:08:33.731 --> 00:08:38.462 AND FOR THE REASONS I JST LAID OUT FACT ACTUALLY, THAT'S JUST NOT A FAIR REPRESENTATION 81 00:08:38.462 --> 00:08:44.699 OF THE CROSS-EXAMINATION THAT WAS ALLOWED HERE FOR FOR FOR THESE REASONS, TH STATE ASKED 82 00:08:44.699 --> 00:08:52.458 AS TO THE REQUIREMENTS OF804B1A AND THE CONFRONTATION CLAUSE AS WELL AS ITS EXPANSION 83 00:08:52.458 --> 00:08:59.028 OF ADD AND TO REEINSTATE THIS DEFENDANTS PROPER AND LAWFUL CONVICTIO. I'M HAPPY 84 00:08:59.028 --> 00:09:04.286 TO ANSWERANY QUESTIONS THE COURT HA. JUSTICE ALBIN: WHEN A POLICE OFFICER 85 00:09:04.286 --> 00:09:11.033 ARRESTS SOMEONE, PRESUMEAABLY THE POLICE OFFICER BELIEVES HE HAS PROBABLE CAUSE AND KNOWS 86 00:09:11.033 --> 00:09:16.797 THE REASON WHY HE'S ARRESTING THAT PERSON, CORRECT? . OH OH YES. THE OFFICER HAS TO 87 00:09:16.797 --> 00:09:20.880 BE PROBABLE CAUSE . JUSTICE ALBIN: THAT'S THE INFORMATION THAT THE OFFICER WOULD 88 00:09:20.880 --> 00:09:24.635 GIVE TO A JUDGE IN ORDER TO GET A COMPLAINT, CORRECT? MONICA DO OUTEIRO: 89 00:09:24.635 --> 00:09:30.971 I MAN, IT MAY BE. IT MAY BE. JUSTICE ALBIN: WELL, PRESUMEAAABLY. 90 00:09:30.971 --> 00:09:35.520 MONICA DO OUTEIRO: I THINK WITH IN-PPUT FROM THE ASSISTANT PROSECUTOR. JUSTICE 91 00:09:35.520 --> 00:09:41.670 ALBIN: WHEN THE SUSSPPPECT, THDEFENDANT ASKS WHY AM I BEING ARRESTED, AND THIS IS BEFORE 92 00:09:41.670 --> 00:09:48.043 THE ADMINISTRATION OF THE MIRANDA RIGHTS, WHY SHOULD NOT THE POLICE OFFICER TELL THE 93 00:09:48.043 --> 00:09:53.549 PERNSON WHYS HE WAS ARRESTED? HE HAS PROBABLE CAUSE. HE'S GOGIING TOB BE TAKEN DOWN 94 00:09:53.549 --> 00:09:58.343 TO THE POLICE STATION. HE'S GOGIIING TOB BE GETTING A COMPLAINT WARRANT OR A COMPLAINT 95 00:09:58.343 --> 00:10:04.125 SUMMONS. WHY SHOULDN'T HE DO THAT AND WHY ISN'T PTTHAT CRITICAL INFORMATION THAT THE 96 00:10:04.125 --> 00:10:10.011 DEFTEENDANT NEEDS TO KNOW FOR THE SAME REASON IF HERE WAS AN ARREST COMPLAINT WARRANT. 97 00:10:10.011 --> 00:10:15.103 IT WOULD BE THE SAME -- GO AHEAD. MONICA DO OUTEIRO: I MAN, I THINK I DISAGREE 98 00:10:15.103 --> 00:10:23.260 WITH THE IMPLICATION IN THE QUESTION THAT THE WARRANTLESS ARREST SITUATION IS SO KIN TO 99 00:10:23.260 --> 00:10:30.212 AN ACTUAL -- THE A D G SITUATION OF A SCOMPLANT ACTUALLY HAVING BEEN FILED. I THINK -- 100 00:10:30.212 --> 00:10:34.699 AS I WAS PRELIMINARYILYILYI ANSWERING THE COURT'S QUESTION, I THINK THAT THE REALITY IS THAT 101 00:10:34.699 --> 00:10:39.057 AN OFFICER DOES HAVE -- OBVIOUS LY HA TO HAVE SOMETHING IN HIS MIND WITH RESPECT TO THE 102 00:10:39.057 --> 00:10:43.194 PROBABLE CAUSE AND TO THE CRIME. BUT WHAT IS ACTUALLY GOING TOB BE TOLD TO A JUDGE, 103 00:10:43.194 --> 00:10:48.566 REDUCED TO A COMPLAINT WARRANT, IS NOT SOMETHING THAT THE OFFICER MAY KNOW. IN FACT, 104 00:10:48.566 --> 00:10:55.499 HERE -- JUSTICE ALBIN: SO THIS IS AN ATTEMPTED MURDER CASE, RIGHT? 105 00:10:55.499 --> 00:11:00.245 MONICA DO OUTEIRO: IT WAS ULTIMATELYCHARGED -- JUSTICE ALBIN: HE WAS ARRESTED 106 00:11:00.245 --> 00:11:05.021 FOR ATTEMPTED MURDER, YES? MONICA DO OUTEIRO: HE WAS PLACED UNDER ARREST. 107 00:11:05.021 --> 00:11:09.387 JUSTICE ALBIN: PRESUMEAAABLY THE OFFICER IS NOT GOING TO GO TO THE JUDGE LATER 108 00:11:09.387 --> 00:11:14.341 AND SAY I ARRESTED HIM FOR JAWALKING. HE'S GOGIIING TO SAY I ARRESTED HIM FOR ATTEMPT 109 00:11:14.341 --> 00:11:18.419 ED MURDE, CORRECT? MONICA DO OUTEIRO: I THINK THERE'S A STEP MISSING AND 110 00:11:18.419 --> 00:11:26.726 I THINK IT'S CLEAR FROM THE MIRANDA HERE. WHILE THERE'S NOT MUCH ON THE RECORD WITH REGARD 111 00:11:26.726 --> 00:11:30.890 TO THIS BECAUSE THIS ISN'T THE ISSUE BEFORE THE MIRANDA HEARING, HE SPECIFICALLY ASKED 112 00:11:30.890 --> 00:11:35.793 DO YOU HAVE ENOUGH EVIDENCE TO SIGN OUT EITHER A COMPLAINT OR A WARRANT AND HIS TESTIMONY 113 00:11:35.793 --> 00:11:40.127 IS THAT'S NOT MY DECISION AND I THINK THAT'S THE REALITY OF THE CIRCUMSTANCE. 114 00:11:40.127 --> 00:11:45.005 JUSTICE ALBIN: HOW COULD HE SAY -- HE MADE THE DECISION TO ARREST THE PERNSSON. HE HAS 115 00:11:45.005 --> 00:11:50.702 TO HAVE PROBABLE CAUSE. OTHERWISE IT'S AN UN-CONSTITUTIONAL SEIZEUURE. RIGHT? 116 00:11:50.702 --> 00:11:53.624 MONICA DO OUTEIRO: YES. YE, THAT'S TRUE. A JUSTICE ALBIN: SO THE POLICE 117 00:11:53.624 --> 00:11:58.529 OFFICER BELIEVES THAT HE HAS AN OBJECTIVELY REASONABLE BASIS TO ARREST THE PERNSSON, 118 00:11:58.529 --> 00:12:02.355 CORRECT? MONICA DO OUTEIRO: YE. JUSTICE ALBIN: AND HE HAS AN 119 00:12:02.355 --> 00:12:07.059 OBJECTIVELY REASONABLE BASIS TO LATER GET A COMPLAINT. WHY CAN'T HE TELL THE 120 00:12:07.059 --> 00:12:12.228 DEFTEEENDANT ABOUT HIS BJECTIVELY REASONABLE BASIS TO BELIEVE HIM THAT HE'S -- THAT THERE'S 121 00:12:12.228 --> 00:12:19.454 PROBABLE CAUSE TO BELIEVE THAT YOU ARE -- THAT YOU'VE COMMITTED AN ATTEMPTED MURDER? 122 00:12:19.454 --> 00:12:27.008 MONICA DO OUTEIRO: I MAN, I THINK IN VINCENTY THIS COURT MENTIONED OR SAID 123 00:12:27.008 --> 00:12:31.910 YOU TELL THE CHARGES THAT ARE IN THE COMPLAINT WARRANT BECAUSE THERE'S SET IN STONE. 124 00:12:31.910 --> 00:12:37.269 AND I THINK HERE DETECTIVE CAMPANELLA KNOWS HE HAS PROBABLE CAUSE TO BELIEVE THAT THIS 125 00:12:37.269 --> 00:12:39.837 DEFENDANT IS INVOLVED IN THE SHOOTING. JUSTICE PATTERSON: YOU COULD HAVE A 126 00:12:39.837 --> 00:12:43.785 SITUATION, FOR EXAMPLE, WHERE SOMEONE IS ARRESTED AND THE PROBABLE CAUSE IN THE MIND OF THE 127 00:12:43.785 --> 00:12:50.203 OFFICER IS SIMPLE ASSAULT. AND IT DEVELOPS MAYBE BASED ON THE SERIOUSNESS OF THE INJURIES 128 00:12:50.203 --> 00:12:55.803 OR SOME OETHER FACTORT AND ULTIMATELY THE INDIVIDUAL IS CHARGED WITH ATTEMPTED MURDER. 129 00:12:55.803 --> 00:13:06.728 IF IN FACT IT'S THE OBLIGATION OF THE OFFICER TO SAY SIMPLE ASSAULT, WOULDN'T YOU BE GIVING 130 00:13:06.728 --> 00:13:12.747 THE INDIVIDUAL ANOTHER REASON TO FILE A MOTION TO SUPPRESS AND TO SAY THAT HE WAS NOT 131 00:13:12.747 --> 00:13:18.981 WARNED SUFFICIENTLY, BECAUSE ULTIMATELY THE STAKES WERE MUCH HIGHER IN THE END. DO YOU 132 00:13:18.981 --> 00:13:22.322 SEE WAHHHAT I'M SAYING? MONICA DO OUTEIRO: YES. I THINK THAT'S EXACTLY THE 133 00:13:22.322 --> 00:13:30.389 UN-CERTAINTYC THAT JUDGE SUSSWEIN WASSPEAKING ABOUT. I THINK THIS CASE DEMONSTRATES IT. 134 00:13:30.389 --> 00:13:36.085 THERE WAS THAT TRIPGS ERROR. THE STATEMENT FOOOF WHAT DETECTIVE WEISBROT SAYS TO THE 135 00:13:36.085 --> 00:13:45.337 DEFTEENDANT IS MISTRANSCRIBED. IT'S TRANSCRIBED YOU'RE UNDER ARREST FOR ASSAULT WHERE 136 00:13:45.337 --> 00:13:51.811 REALLY WHAT DETECTIVE WEISBROT SAID WAS YOU'RE UNDER ARREST. JUDGE SUSSWEIN JOINED IN 137 00:13:51.811 --> 00:13:57.374 SAYING THAT PTHAT INFORMATIONT WAS IN-CORRECT ANDRESULTED IN AN IN-VOLUNTARY MIRANDA WAIVER 138 00:13:57.374 --> 00:14:02.816 AND WARNING BECAUSE IT WASN'T AN ASSAULT BECAUSE AFTER HE WAS CHARGD WITH ATTEMPTED MURDER. 139 00:14:02.816 --> 00:14:07.651 JUSTICE PATTERSON: IT MAY NOT BE JUST CLARIFICATION THE ASSISTANT POSECUTOR 140 00:14:07.651 --> 00:14:11.745 WOULD PROVIDE BUT IT MAY BE CHANGEIING FACTS. MONICA DO OUTEIRO: YES. 141 00:14:11.745 --> 00:14:16.758 JUSTICE PATTERSON: IT MAY APPEAR TO BE A SIMPLE ASSAULT AND THEN THE FACTS TURN OUT TO BE 142 00:14:16.758 --> 00:14:22.236 MUCH MORE SERIOUS. SO THE INDIVIDUALS BEING -- HAS CONVEYED TO HIM THE INFORMATION THAT 143 00:14:22.236 --> 00:14:28.325 HE IS FACEIING NOTHING MORNEEE ETHAN A SIMPLE ASSAULT CHARGE AND ULTIMATELY HE'S CHARGED 144 00:14:28.325 --> 00:14:32.076 WITH ATTEMPED MURDER, RIGHT? MONICA DO OUTEIRO: YES. I THINK HERE, AGAIN 145 00:14:32.076 --> 00:14:37.188 TAKING KIND OF A HYPEOOTHETICAL OF WHAT THE APPELLATE DIVISION THOUGHT THIS WAUSS HE MAY 146 00:14:37.188 --> 00:14:43.526 ANSWER THAT YOU ARE ARRESTED FOR ASSAULT, IN THIS FACTUAL SKCENARI MAY NOT BE WRONG. 147 00:14:43.526 --> 00:14:51.040 IT MAY NOT COMPLETE. BUT ALL THE LAWYERS IN THIS ROOM KNOW THAT ATTEMPTED MURDER GETS 148 00:14:51.040 --> 00:14:59.604 PRESENTED TO A JURY WITH LESSER IN-CCLUDEDS OF ASSAULT. JUSTICE LA VECCHIA: 149 00:14:59.604 --> 00:15:06.319 FOOTNOTE SIX ANDFOOTNOTE SEVEN. IN FOOTNOTE SEVEN THEY SAID OUR HOLDING IS LIITED TO 150 00:15:06.319 --> 00:15:15.420 AN ARRESTEE BEING TOLD AT THE TIME OF ARREST AFTER AN INVESTIGATION THE REASON HE OR 151 00:15:15.420 --> 00:15:22.431 SHE IS BEING ARRESTED. WHY IS THE STATE'S POSITION THAT THAT'S INFORMATION THE IN-TTER 152 00:15:22.431 --> 00:15:28.493 GEE IS NOT ENTITLED TO HAVE? MONICA DO OUTEIRO: I THINK THERE'S KIND OF 153 00:15:28.493 --> 00:15:32.360 TWO ANSWERS. OR I HAVE TWO ANSWERS, IF THE COURT WILL IN-DDDULGE ME. I THINK THE FIRST 154 00:15:32.360 --> 00:15:40.267 ANSWER IS, WE CAN'T PULL AWAY -- I THINK OR WE SHOULDN'T, THIS COURT SHOULDN'T PULL TOO FAR 155 00:15:40.267 --> 00:15:47.638 AWAY FROM THE PURPOSES OF MIRANDA. RIGHT. THIS COURT RE-LIED ON COLOADO VERSUS SPRING 156 00:15:47.638 --> 00:15:50.750 AND NYHAMMER WHICH TALKS ABOUT THE PURPOSE OF MIRANDA -- JUSTICE LA VECCHIA: 157 00:15:50.750 --> 00:15:55.807 NYHAMMER IS AN ENTIRELY DIFFERENT SITUATION. THAT WAS A SUSSPPPECT. THIS IS SOMEBODY 158 00:15:55.807 --> 00:16:01.496 WHO'S PLACED UNDER AN ARREST AFTER ANINVESTIGATIONED ON PROBABLE CAUSE THAT HE' 159 00:16:01.496 --> 00:16:06.700 COMMITTED A CRIME. AND HE'S ASKING WHAT IS IT I AM BEING ARRESTED FOR. AND THE OFFICER 160 00:16:06.700 --> 00:16:13.527 RE-FFUSES TO ANSWER THAT QUESTION. IS THAT THE STATE'S POSITION, THAT THAT IS WHAT SHOULD 161 00:16:13.527 --> 00:16:18.618 HAPPEN? MONICA DO OUTEIRO: I THINK TO BE CLEAR, WHAT IS ASKED MIIIN THE MIRANDA 162 00:16:18.618 --> 00:16:22.865 STATEMENT ONCE IT'S CLARIFIED IS AM I UNDER ARREST OR SOMETHING AND THE ANSWER IS YES 163 00:16:22.865 --> 00:16:28.434 YOU'RE UNDER ANSWER. SO HIS QUESTION IS APPROPRIATELY ANSWERED AT THAT TIME. 164 00:16:28.434 --> 00:16:32.003 JUSTICE LA VECCHIA: DID HE ASK WHAT I'M BEING ARRESTED FOR? MONICA DO OUTEIRO: 165 00:16:32.003 --> 00:16:36.789 NOT AT THE TIME OF THE MIRANDA WAIVER. I ALSO THINK -- I DON'T THINK THIS IS AS FAR 166 00:16:36.789 --> 00:16:39.785 DISTANCED FROM NYHAMMER -- JUSTICE LA VECCHIA: BUT WHEN HE WAS BEING ARRESTED 167 00:16:39.785 --> 00:16:45.567 HE WAS ASKING WHAT HE'S BEING ARRESTED FO. MONICA DO OUTEIRO: YES. AND HE WAS 168 00:16:45.567 --> 00:16:52.664 TOLD, YES, WE'LL TALK ABOUT THIS BACK AT THE POLICE HEADQUARTERS. I THI IN-APPROPRIATE 169 00:16:52.664 --> 00:16:57.247 FOR LAW ENFORCEMENT TO DO BECAUSE I THINK LAW ENFORCEMENT HAS MANY RULES TO FOLLOW WITH 170 00:16:57.247 --> 00:17:02.229 REGARD TO MIRANDA AND I THINK SAYING WE'LL TALK ABOUT THIS BACK AT POLICE HEADQUARTERS 171 00:17:02.229 --> 00:17:07.614 AFTER A MIRANDA WARNING AND WAIVER HAVE HAPPENED IS APPROPRIATE BECAUSE I CAN SEE LAW 172 00:17:07.614 --> 00:17:11.886 ENFORCEMENT NOT WANTING TO GET INTO A SITUATION WHERE THEY'RE ENGAGEIIING INTO AN 173 00:17:11.886 --> 00:17:16.374 INTERROGATION PRIOR TO THE MIRANDA WARNINGS. JUSTICE LA VECCHIA: IS THAT PUSHING 174 00:17:16.374 --> 00:17:21.559 THIS ANALYSI MORE TOWARD A TOTALITY OF THE CIRCUMSTANCES ASSESSMENT OF WHETHER OR NOT 175 00:17:21.559 --> 00:17:29.083 THE OFFICER'S INTERACTION WITH THE IN-TTER GEE IS APPROPRIATE? MONICA DO OUTEIRO: 176 00:17:29.083 --> 00:17:33.260 YES. THIS FACTOR SHOULD BE A TOTALITY OF THE CIRCUMSTANCES ANALYSIS. I THINK WHAT THE 177 00:17:33.260 --> 00:17:38.090 STATE IS ASKING AT BOTTOM FROM THIS COURT IS TO REEJECTJECTJ THE PER SE RULE. REALLY 178 00:17:38.090 --> 00:17:44.674 THE EXTENSION OF D G. BUT JUST TO GET BACK TO NYHAMMER, THIS ISN'T AS FAR AWAY FROM 179 00:17:44.674 --> 00:17:49.525 NYHAMMER AS I THINK IT INITIALLY APPEARS. IN NYHAMMER THEY HAD ESSENTIALLY SIMILAR 180 00:17:49.525 --> 00:17:52.492 INFORMATION TO OUR OFFICERS HERE. JUSTICE LA VECCHIA: TELL US THE BASIS FOR 181 00:17:52.492 --> 00:17:59.266 TTHE COURT'SDING IN NYHAMMER, WHAT YOU'RE SUGGESTING NOW. LET'S GO BACK TO THE FACTS 182 00:17:59.266 --> 00:18:03.755 OF THIS CASE. IF IT'S A FACTOR TO BE CONSIDERED IN THE TOTALITY OF CIRCUMSTANCES, WHEN 183 00:18:03.755 --> 00:18:09.082 IN THE STATE'S VIEW WOULD IT BE APPROPRIATE AND NECESSARY FOR THE LAW ENFORCEMENT OFFICER 184 00:18:09.082 --> 00:18:15.408 TO ANSWER THE QUESTION OF THE DEFENDANT? WHAT AM I BEING ARRESTED FOR? MONICA DO 185 00:18:15.408 --> 00:18:19.264 OUTEIRO: I THINK YOU WOULD HAVE TO HAVE A SITUATION THAT IS SORT OF SIMILAR TO OR PULSE 186 00:18:19.264 --> 00:18:24.944 SORT OF FROM THE IN-TTERROGATION THAT YOU HAD AT ISSUE IN VINCENTY. I THINK YOU WOULD 187 00:18:24.944 --> 00:18:30.100 HAVE TO HAVE A DEFENDANT WHO SAYS, WHO AFTER BEING TOLD, YES, YOU'RE UNDER ARREST, I'M 188 00:18:30.100 --> 00:18:35.177 SURE YOU HAVE A LOT FOOOF QUESTIONS -- I'M SURE YOU HAVE A LOT FOOOF QUESTIONS, LET'S 189 00:18:35.177 --> 00:18:39.778 FINISH THIS FORM AND THEN WE'LL MOVE ON TO IT. I THINK IF YOU HAVE A DEFENDANT LIKE IN 190 00:18:39.778 --> 00:18:43.789 VINCENTY WHERE THE DEFTEEENDANT WAS SAYING -- AND OBVIOUSLY THE FACTS ARE DIFFERENT, BUT 191 00:18:43.789 --> 00:18:47.512 WHAT THE DEFTEENDANT IN VINCENTY WAS SAYING, THIS IS REALLY SERIOUS. I DON'T KNOW IF 192 00:18:47.512 --> 00:18:53.610 I WANT TO WAIVE WITHOUT KNOWING THAT INFORMATION. AGAIN NYHAMMER TALKS ABOUT UNUSUAL 193 00:18:53.610 --> 00:18:59.609 CIRCUMSTANCES. IF UYOU HAVE A OFFICER THAT THEN CONDITIONE WAIVER ON -- OR CONDITIONED 194 00:18:59.609 --> 00:19:04.466 THE ANSWERING OF PTTTHAT QUESTION ON WAIVER AND IF YOU HAD AN OFFICER THAT SAID I'M NOT 195 00:19:04.466 --> 00:19:08.549 GOING TO TELL UYYYOU WHAT YOUR CHARGES ARE. I HEAR YOU, IT'S REALLY IMPORTANT TO YOU, 196 00:19:08.549 --> 00:19:12.101 I'M NOT GOING TO TELL UYY YOU WAIVE. JUSTICE LA VECCHIA: THAT'S THE THRESHOLD 197 00:19:12.101 --> 00:19:15.312 THAT THE STATE IS ADDVOCATEVOCATEVIING FOR? MONICA DO OUTEIRO: I THINK THAT'S 198 00:19:15.312 --> 00:19:19.264 THETOTALITY OF THE CIRCUMSTANCES ANALYSIS. I THINK THE REASON I CAN GIVE UYOU IS THATY 199 00:19:19.264 --> 00:19:23.592 IS BECAUSE I THINK IT'S THE FAR OUTREACHES. I THINK THAT'S THE EASY ANSWER. I THINK 200 00:19:23.592 --> 00:19:29.303 OTHERWISE, AND WE KNOW THAT STATEMENTS PURSUANT TO THE RULE ARE BEING RECORDED AND TRIAL 201 00:19:29.303 --> 00:19:35.452 JUDGES ARE WATCHING THEM. THIS COURT PLACES THE RESPONSIBILITY OF THESE FACTUAL DECISIONS 202 00:19:35.452 --> 00:19:40.912 ON THE TRIAL COURT BECAUSE THEY'RE THE EXPERTS IN THIS, SO I THINK -- JUSTICE ALBIN: 203 00:19:40.912 --> 00:19:46.011 LOOK. NYHAMMER IS DIFFERENT. BECAUSE SUSSPPECT, PERSON OF INTEREST, WHETHER OR NOT 204 00:19:46.011 --> 00:19:53.482 YOU'RE ACTUALLY IN CUSTDY, THAT'S ONE OF THE REASONS WHY THE COURT COULD NOT COME DOWN 205 00:19:53.482 --> 00:19:58.385 WITH A BRIGHT LINE. BUT WHEN YOU ARREST SOMEONE, I MAN, THE PERNSSON IS IN CUSTODY AND 206 00:19:58.385 --> 00:20:07.641 THE OFFICER HAS PROBABLE CAUSE. SO THE QUESTION I WANT TO ASK YOU IS, I'M TRYING TO FIGURE 207 00:20:07.641 --> 00:20:13.946 OUT HOW THIS IS DIFFERENT FROM A G. FOR THIS REASON. IN A G, YOU CAN GET A COMPLAINT 208 00:20:13.946 --> 00:20:21.925 WARRANT ON A SINKGGGLE CHARGE. THE GRAND JURY AND THE PROSECUTOR MAY HAVE EIGHT DIFFERENT 209 00:20:21.925 --> 00:20:29.727 OTHER THEORIES. AND PRESENT -- THERE MY BE NINE CHARGES LATER. BUT IN A G, WE SAID, 210 00:20:29.727 --> 00:20:35.086 IF YOU HAVE THE ARREST COMPLAINT WARRANT IN YOUR POCKET, EVEN THOUGH IT'S FOR ONE CHARGE, 211 00:20:35.086 --> 00:20:40.266 YOU'VE GOT TO TELL THE DEFTEENDANT, WHO'S ABOUT TO BE IN-TTERROGATED WHAT THAT IS. IN 212 00:20:40.266 --> 00:20:45.775 THIS CASE, THE OFFICERS HAD ENOUGH TIME TO GET AN ARREST COMPLAINT WARRANT IF THEY WANTED. 213 00:20:45.775 --> 00:20:49.922 CORRECT? THEY DNIIIDN'T DO THAT. MONICA DO OUTEIRO: I DON'T THINK THAT'S 214 00:20:49.922 --> 00:20:53.781 SUPPORTED BOO I THE TESTIMONY. I THINK THE ONLY TESTIMONY THAT IT WASN'T HIS DECISION 215 00:20:53.781 --> 00:20:57.866 TO MAKE. JUSTICE ALBIN: MERELY BECAUSE THERE MY BE MORE CHARGES FILED, 216 00:20:57.866 --> 00:21:03.465 WHETHER IT'S AN A D G ON A COMPLAINT WARRANT OR THE OFFICERS ARRESTING THE PERNSSSON FOR 217 00:21:03.465 --> 00:21:07.638 ATTEMPED MURDER, WHAT IS THE DISTINCTION? MONICA DO OUTEIRO: I THINK THE 218 00:21:07.638 --> 00:21:14.389 DISTINCTION -- WHEN THE COURT TALKS IN A D G ABOUT ITS RULE WHAT IT'S TALKING ABOUT IS 219 00:21:14.389 --> 00:21:20.253 APPROVED BY A J AND THERE'S A CERTAINTY BECAUSE THOSE CHARGES HAVE BEEN PRESENTED TO A 220 00:21:20.253 --> 00:21:25.112 JUDGE AND PROBABLE CAUSE HAS BEEN FOUND BY A JUDGE. NOW, THE APPELLATE DIVISION TRIES 221 00:21:25.112 --> 00:21:29.585 TO KIND OF SMOOTH OVER THAT DISTINCTION OF A WARRANTLESS ARREST AND A WARRANED ARREST 222 00:21:29.585 --> 00:21:33.409 BY SAYING IN BOTH SITUATIONS THE DETERMINEATIONATIONA HAS BEEN MADE BY A 223 00:21:33.409 --> 00:21:36.968 REASONABLE PERSON. HOWEVER, THE REALITY IS - JUSTICE PATTERSON: IN A DC THERE IS 224 00:21:36.968 --> 00:21:41.536 NO DISCRETION WHATSOEVER ON THE POLICE OFFICER FOR MAKEIIING JUDGMENTS ABOUT HOW THIS I 225 00:21:41.536 --> 00:21:45.994 GOING TO GO. AM I RIGHT ABOUT PTTTHAT? MONICA DO OUTEIRO: YES. OF COURSE 226 00:21:45.994 --> 00:21:51.123 AS JUSTICE ALBIN MENTIONED, CHARGES LATER CAN CHANGE. BUT CHARGES AT THIS POINT HAVE BEEN 227 00:21:51.123 --> 00:21:56.271 SET, FOUND BY THE COURT AND FOR LACK OF A BETTER COURT, THE WHEELS OF JUSTICE HAVE TURNED. 228 00:21:56.271 --> 00:22:00.965 JUSTICE PATTERSON: IT'S NOT REQUIRING THE OFFICER ON THE SCENE TO MAKE JUDGMENTS 229 00:22:00.965 --> 00:22:06.097 ABOUT HOW THE FACTS ARE GOING TO FIT IN WITH ULTIMATELY THE PROVISION OF THE CODE OR 230 00:22:06.097 --> 00:22:10.580 PROVISIONS OF THE CODE THAT MIGHT ULTIMATELY BE RELEVANT. THERE IS A DETERMINEATIONA MADE 231 00:22:10.580 --> 00:22:15.686 NOT BY THE OFFICER BUT IS COMMUNICATED WITH CLARITY TO THE OFFICER EVEN IF ULTIMATELY 232 00:22:15.686 --> 00:22:20.698 THAT'S NOT THE CHARGE. MONICA DO OUTEIRO: EXACTLY. I THINK THAT'S THE 233 00:22:20.698 --> 00:22:24.226 STATE'S POINT WITH REGARD TO THE UN-CERTAINTYCERTAINTYC OF THIS RULE. 234 00:22:24.226 --> 00:22:29.839 JUSTICE PIERRE-LOUIS: I'M SORRY. I'M HAVING TROUBLE UNDERSTANDING WHAT IS UN-CERTAIN 235 00:22:29.839 --> 00:22:37.101 ABOUT SOMEONE BEING PUT NIIN HANDCUFFS AND DEEPPPRIVED OF THEIR LIBERTY. THIS DEFENDANT 236 00:22:37.101 --> 00:22:43.557 WAS ALREADY HANDCUFFED AND ARRESTED. TO BORROW SOME OF THE LANGUAGE FROM A D G, I THINK 237 00:22:43.557 --> 00:22:49.387 IT'S PRETTY CHEER, BUNS SOMEBODY'S BEEN ARRESTED AND TAKEN INTO CUSTOMER TEDDY, THE VEIL 238 00:22:49.387 --> 00:22:55.376 OF SUSPICION HAS BEEN DRAPED OVER THIS PERNSSSON. WHAT DOES IT MATTER THAT THEY DON'T 239 00:22:55.376 --> 00:23:00.350 KNOW THE EXACT SPECIFIC CODE THIS PERNSSSON IS GOING TOB BE CHARGED WITH? WHAT IS THE 240 00:23:00.350 --> 00:23:09.703 HARM IN STATEIING YOU ARE BEING ARRESTED IN CONNECTION WIT CDS DISTRIBUTION. WITH A 241 00:23:09.703 --> 00:23:17.158 SHOOTING. HE DOESN'T HAVE TO SAY ASSAULTAGGRAVATED ASSAULT, ATTEMPED MURDER, 242 00:23:17.158 --> 00:23:22.671 MURDER. THE OFFICER KNOWS BASED ON HIS OR HER INVESTIGATION WHY HE IS ARRESTING THI 243 00:23:22.671 --> 00:23:27.792 PERNSSSON. S WHAT IS THE HARM IN TELLING SOMEONE THIS IS WHY YOU'VE BEEN ARRESTED? 244 00:23:27.792 --> 00:23:32.247 MONICA DO OUTEIRO: I THINK -- I'M TRYING TO THINK OF THE WAY TO ANSWER THIS. I THINK 245 00:23:32.247 --> 00:23:37.416 ONE IS -- I UNDERSTAND WHAT YOUR HONOR IS SAYING. AND, AGAIN, M CAN GO INTO A TOTALITY 246 00:23:37.416 --> 00:23:42.749 OF THE CIRCUMSTANCES ANALYSIS. BUT AS A PER SE RULE, AGAIN JUST GOING BACK TO WHEN THE 247 00:23:42.749 --> 00:23:45.947 APPELLATE DIVISION THOUGHT THAT WHAT THE OFFICER OR WHAT THE DETECTIVE SAID WAS ASSAULT 248 00:23:45.947 --> 00:23:52.029 AND NOT ATTEMPED MURDER, I THINK THAT'S -- AGAIN, THAT'S THE UUNCERTAINTY. ARE WE NOW 249 00:23:52.029 --> 00:23:58.102 GOING TOB BE IN-TTERROGATEINGI EXACTLY WHAT THE PERNSSON SAID? JUSTICE 250 00:23:58.102 --> 00:24:05.442 FERNANDEZ-VINA: DO YOU ENVISION A SITUATION WHERE IF THE OFFICER GUESSES WRONG AND THEY'LL 251 00:24:05.442 --> 00:24:11.666 BE A CHALLENGE TO THE CONFESSION BECAUSE HE WAS TOLD THEY'LL BE LESSER CHARGES OR VICE 252 00:24:11.666 --> 00:24:19.178 VERSE? IF HE GUESSE WRONG WHAT THEY'RE GOING TO CHARGE HIM WITH, THEY'LL BE A LATER CHALLENGE 253 00:24:19.178 --> 00:24:24.252 WITH IT, BECAUSE I CONFESSED, I THOUGHT IT WAS A SIMPLE ASSAULT. I WOULD HAVE SAID NOTHING 254 00:24:24.252 --> 00:24:28.924 OR THE OTHER WAY. JUSTICE PIERRE-LOUIS: WHY DOES IT HAVE TO BE A 255 00:24:28.924 --> 00:24:32.877 SPEFCIFIC CHARGEC? AGAIN, THE OFFICER HAS CONDUCTED AN INVESTIGATION. THIS WAS NOT A 256 00:24:32.877 --> 00:24:38.654 P.C. ARREST BASED ON AN INCIDENT THAT THE OFFICER OBSERVED AND GRABBED THE DEFENDANT. 257 00:24:38.654 --> 00:24:43.856 THIS WAUSS BASED ON AN INVESTIGATION THAT THE OFFICER CONDUCTED, INTERVIEWED THE VICTIM 258 00:24:43.856 --> 00:24:51.268 AND MADE THE ARREST AS A RESULT OF PTTHAT. THE OFFICER KNEW WHY HE WAS ARRESTING HIM. 259 00:24:51.268 --> 00:24:56.675 WHAT DOES IT MATTER THAT -- WHY DOES IT NEED TO BE SPECIFIC CHARGES TOLD TO ADEFENDANT? 260 00:24:56.675 --> 00:25:01.089 MONICA DO OUTEIRO: I THINK THAT'S THE RULE THAT THE APPELLATE DIVISION -- 261 00:25:01.089 --> 00:25:05.247 JUSTICE PATTERSON: THAT'S EXACTLY WHAT THE APPELLATE DIVISION DID SAY. ACTUAL 262 00:25:05.247 --> 00:25:08.581 AND SPECIFIC CHARGES. MONICA DO OUTEIRO: IT'S PULLING THE RULE AND THE 263 00:25:08.581 --> 00:25:13.308 PARAMETERS OF THE RULE FROM A D G AND THEVEN VINCENTY. AND IN VINCENTY IT'S EASY TO TELL 264 00:25:13.308 --> 00:25:17.917 THE PERNSSSON WHAT THE CHARGES ARE BECAUSE THE JUDGE HAS APPROVED THEM. AND REGARDLESS 265 00:25:17.917 --> 00:25:22.440 OF WHETHER THEY CHANGE, THERE'S A COMPLAINT WARRANT THAT SAYS IT. WE ALSO HAVE TO LOOK 266 00:25:22.440 --> 00:25:29.442 BACK AGAIN TO WHAT IS THE PURPOSE OF MIRANDA'S RULE AND WHEN HAS TH COURT DECIDED TO EXTEND 267 00:25:29.442 --> 00:25:35.735 IT. AND IT'S EXTENDED IT IN A WAY THAT OUR FEDERAL SYSTEM DOESN'T, RIGHT? 268 00:25:35.735 --> 00:25:43.786 JUSTICE ALBIN: FOR WAHHAT REASONS, REED, AD G0G, VINCENTY. THE DEFTEENDANT NEEDS CRITICAL 269 00:25:43.786 --> 00:25:51.207 INFORMATION IN ORDER TO DECIDE WHETHER OR NOT TO SPEAK. AND WE SAID IN A D G AND RE-PEATPED 270 00:25:51.207 --> 00:25:59.833 IN VINCENTY, THAT CRITICAL INFORMATION IS, LIKE, WHY HAVE I BEEN ARRESTED? BEFORE THE 271 00:25:59.833 --> 00:26:07.511 QUESTIONING. AND I'M TRYING TO UNDERSTAND, IF IT'S CRITICAL INFORMATION FOR THE 272 00:26:07.511 --> 00:26:14.500 DEFTENDANT,ENDANT,E WHAT'S THE DIFFERENCE IFIT WAS -- IF THE ARREST IS BASED UPON THE 273 00:26:14.500 --> 00:26:20.504 COMPLAINT OR BASED UPON THE PROBABLE CAUSE THAT THE OFFICER HAD FOR ARRESTING HIM? THE 274 00:26:20.504 --> 00:26:25.617 CRITICAL INFORMATION IS WHAT THE DEFTEENDANT NEEDS IN ORDER TO EXERCISE HIS FFTH AMENDMENT 275 00:26:25.617 --> 00:26:29.578 PRIVILEGE. MONICA DO OUTEIRO: AND WHEN THIS COURT DECIDED TO EXTEND -- TO GO 276 00:26:29.578 --> 00:26:34.061 BEYOND THE PROTECTIONS OF MIRANDA, WHICH ARE -- YOU KNOW, PROVIDE THE INFORMATION IN THE 277 00:26:34.061 --> 00:26:40.202 MIRANDA WARNING IN A G AND IN VINCENTY, IT ALWAYS TIED IT TO A BRIGHT LINE RULE THAT WAS 278 00:26:40.202 --> 00:26:45.176 EASY TO EXECUTE AND IT WAS TIED TOWARD COMPLAINT WARRANTS OR SUMMONSES THAT HAVE BEEN 279 00:26:45.176 --> 00:26:50.331 APPROVED BY A JUDGE. BECAUSE IT'S CLEAR THAT IT'S HAPPENED. I THINK ALSO -- AND I KNOW 280 00:26:50.331 --> 00:26:54.796 YOUR HONOR DID NOT PARTICULARLY LIKE WHAT I WAS TRYING TO DISTINGUISH THIS FROM NYHAMMER, 281 00:26:54.796 --> 00:27:00.989 BUT I DO WANT TO TALK ABOUT IT. BECAUSE I THINK IN NYHAMMER THAT PERSON OR THAT DEFENDANT 282 00:27:00.989 --> 00:27:05.844 DIDN'T EVEN KNOW THAT THEY WERE A SUSSPPPECT. THE POLICE WERE ABLE TO ESSENTIALLY WITHHOLD 283 00:27:05.844 --> 00:27:10.829 THAT INFORMATION AND THIS COURT APPROVED P HE WENT IN TLHHHERE AS A WITNESS. THAT'S HOW 284 00:27:10.829 --> 00:27:16.246 THE STATE GOT THAT DEFENDANT IN THE IN-TTERROGATION ROOM. OUR DEFENDANT HERE I 285 00:27:16.246 --> 00:27:20.351 WOULD SAY HAD MORE INFORMATION THAN THE DEFTEEENDANT IN NYHAMMER BECAUSE HE KNEW -- 286 00:27:20.351 --> 00:27:24.639 HE DIDN'T THINK HE WAS JUST A WITNESS COMEIIING NIN TO TAIN TO TAL ABOUT SOMEONE ELSE'S 287 00:27:24.639 --> 00:27:30.097 ABUSE OF HIS RELATIVE. OUR DEFENDANT KNEW THAT HE WAS -- THAT HE WAS AN ARRESTEE. THAT 288 00:27:30.097 --> 00:27:35.574 THE FOCUS OF THE STATE'S INVESTIGATION -- OF A STATE INVESTIGATION WAS ON HIM. COUPLED 289 00:27:35.574 --> 00:27:40.242 WITH AS THIS COURT SAID IN NYHAMMER, THE MIRANDA WARNINGS THAT SCREAMED OUT TO HIM THAT 290 00:27:40.242 --> 00:27:46.902 SOMETHING WAS AVFOO. AND I WOULD SUBMIT FURTHER WHEN YOU'RE TALKING ABOUT WHY WOULD IT 291 00:27:46.902 --> 00:27:51.405 BE HARD OR COULD IT BE DONE AND OBVIOULY THE STATE'S POSITION IS IT COULDN'T, WE NEED 292 00:27:51.405 --> 00:27:56.970 TO LOOK AT WHAT PROTECTIONS EXIST IN MIRANDA. THIS COURT AND OUR FEDERAL SYSTEM HAS SAID 293 00:27:56.970 --> 00:28:02.646 WE DON'T NEED TO PROVIDE ALL THE INFORMATION TO ALLOW SOMEONE TO BEST CALIBRATE THEIR 294 00:28:02.646 --> 00:28:06.740 BEST INTERESTS. BUT THE WARNING, OR THE PART OF THE WARNING THAT ADVISES SOMEONE THAT 295 00:28:06.740 --> 00:28:11.820 AT ANY TIME DURING THIS IN-TTTERROGATION AS THINGS CHANGE DURING THE INTERROGATION, YOU 296 00:28:11.820 --> 00:28:15.825 CAN GO BACK AND IN-VVVOKE THOSE RIGHTS, THAT'S THE PROTECTIONS THAT THEY NEED TO KNOW AND 297 00:28:15.825 --> 00:28:20.408 THAT'S THE PROTECTIONS THAT I THINK JUSTIFY OR PROTECT THE CHANGEINGI STATUS OF A PERSON 298 00:28:20.408 --> 00:28:26.233 AS THIS PERNSSSON REALIZES NOW HE'S NOT JUST --AGAIN, MORE THAN A SUSSPECTP. HE KNOWS 299 00:28:26.233 --> 00:28:31.504 HE'S AN ARRESTEE. JUSTICE ALBIN: AN ARREST IS A BRIGHT LINE. WHAT I DON'T 300 00:28:31.504 --> 00:28:35.365 SEE AS WORKABLE, AND YOU CAN ADDRESS THIS. THE TOTALITY OF THE CIRCUMSTANCES, THAT'S 301 00:28:35.365 --> 00:28:40.934 WHAT A COURT DOES. THAT DOES NOT HELP THE POLICE OFFICER EXERCISE HIS DUTY AT THE SCENE. 302 00:28:40.934 --> 00:28:48.264 IF HE IS TOLD WHEN YOU'RE ARRESTING SOMEONE AND THE PERNSSSON ASKED WHY HAVE I BEEN ARRESTED 303 00:28:48.264 --> 00:28:52.788 BEFORE THE PERNSSSON IS QUESTIONED, THAT'S A VERY EASY THING FOR THE POLICE OFFICER TO 304 00:28:52.788 --> 00:28:57.041 UNDERSTAND. I'VE ARRESTED THE PERNSON. SON. S I'VE ARRESTED HIM FOR A PARTICULAR REASON 305 00:28:57.041 --> 00:29:02.943 AND HE'S NOW ASKING ME WHY HAVE I BEEN ARRESTED. WHAT'S SO DIFFICULT? MONICA DO 306 00:29:02.943 --> 00:29:05.902 OUTEIRO: I DON'T THINK THE DIFFICULTY IS IN THE OFFICER PROVIDEIIING AN ANSWE. I THINK 307 00:29:05.902 --> 00:29:11.007 THE DIFFICULTY IS IN THE OFFICER PROVIDEIING A CORRECT ANSWE. OR AN ANSWER THAT A COURT 308 00:29:11.007 --> 00:29:16.394 LATER IS GOING TO DETERMINE IS CORRECT. AGAIN, I MEAN, I THINK YOU'RE DEPENDING ON THINGS 309 00:29:16.394 --> 00:29:21.520 LIKE THE CAUTIOUSNESS OF THE OFFICER OR THE ASSISTANT POSECUTOR IN TELLING THEM OF WHAT 310 00:29:21.520 --> 00:29:27.218 CHARGES THEIR SUSSPPECTING. AGAIN, THIS CASE PRESENTS ITSELF, THE DIFFERENCE BETWEEN 311 00:29:27.218 --> 00:29:31.717 SAYING IT'S AN ASSAULT VERSUS AN ATTEMPT ED MURDE. I'M GOGING TOBI BE CANDID, I DON'T 312 00:29:31.717 --> 00:29:36.808 KNOW WHICH IS BETTER OR WORSE, TO BE UNDER SOLD WHAT THE CHARGES ARE OR OVERSOLD WHAT THE 313 00:29:36.808 --> 00:29:41.982 CHARGES ARE. BUT I THINK EITHER PRESENTS TO THE COURT -- PRESENTS TO A COURT, A REVIEWING 314 00:29:41.982 --> 00:29:48.683 COURT LATER THE POSSIBILITY OF I WONUUULDN'T HAVE WAIVED HAD I KNOWN THAT THE CHARGE WASN'T 315 00:29:48.683 --> 00:29:52.961 REALLY GOING TOB BE AN ASSAULT IT WAS ESSENTIALLY LATER GOING TOB BE AN ATTEMPTED 316 00:29:52.961 --> 00:29:56.625 MURDER. CHIEF JUSTICE RABNER: WE ACCEPT YOUR POSITION. WHAT SHOULD HAPPEN 317 00:29:56.625 --> 00:30:02.124 IN A CASE, NOT THIS CASE, WHERE AN OFFICER DELAYS FILING CHARGES IN ORDER TO GET AROUND 318 00:30:02.124 --> 00:30:09.176 A G D? MONICA DO OUTEIRO: I DON'T THINK THERE'S ANY INFORMATION IN THIS RECORD. 319 00:30:09.176 --> 00:30:11.594 CHIEF JUSTICE RABNER: NOT THIS CASE. MONICA DO OUTEIRO: YEAH. 320 00:30:11.594 --> 00:30:16.828 I MAN, I THINK IT WOULD BE A TOTALITY OF THE CIRCUMSTANCES ANALYSIS. BUT ALWAYS -- 321 00:30:16.828 --> 00:30:20.754 CHIEF JUSTICE RABNER: NOT A BRIGHT LINE RULE? IF AN OFFICER IN BAD FAITH ATTEMPTS 322 00:30:20.754 --> 00:30:26.478 TO EEVVVADE THE BRIGHT LINE RULE FOOF A G , SHOULD THAT APPLY? MONICA DO 323 00:30:26.478 --> 00:30:30.617 OUTEIRO: I MEAN, I THINK THE REASON I'M HAVING DIFFICULTY WITH ANSWERING THE QUESTION 324 00:30:30.617 --> 00:30:36.554 IS BECAUSE ESSENTIALLY THIS COURT APPROVED OF AN OFFICER -- OF OFFICERS WITHHOLDING SUSSPPPECT 325 00:30:36.554 --> 00:30:42.726 STATUS IN NYHAMMER. THOSE OFFICERS IN NYHAMMER HAD PROBABLE CAUSE BASED ON THE VICTIM 326 00:30:42.726 --> 00:30:46.931 STATEMENT. THEY COULD HAVE ARRESTED THAT DEFENDANT IN A PUBLIC PLACE WITHOUT A 327 00:30:46.931 --> 00:30:53.369 WARRANT. THEY COULD HAVE GONT AN ARREST WARRANT IN THAT CASE. AND THIS COURT FOUND NO 328 00:30:53.369 --> 00:30:58.790 PROBLEM WITH THAT. OBVIOUS LY I HERE WAS SOME KND OF WILLFUL MISSFFEASANCE AND EVIDENCE 329 00:30:58.790 --> 00:31:02.890 FOOF THAT,O I THINK AS I SAID MIIN THE EXAMPLE I GAVE BEFORE, PARTICULARLY WHERE YOU HAVE 330 00:31:02.890 --> 00:31:08.295 FACT SPECIFIC STATEMENTS BY THE DEFTEEENDANT THAT THIS WAUSS -- THAT THIS INFORMATION 331 00:31:08.295 --> 00:31:14.757 WAS NECESSARY, CRUCIAL, TO THEIR WAIVER. AGAIN, I THINK YOU WOULD NEED THAT MISREPRESENTATION 332 00:31:14.757 --> 00:31:18.405 TO HAPPEN AT PTTHAT POINT. JUSTICE LA VECCHIA: COUNSEL, ISN'T COULD HAVE ARRESTED 333 00:31:18.405 --> 00:31:25.594 DIFFERENT THAN ARRESTED? BASED ON PROBABLE CAUSE. I MAN, TO ME, I'M PRESSING YOU 334 00:31:25.594 --> 00:31:32.432 BECAUSE I SEE A PRETTY SERIOUS DIFFERENCE BETWEEN NYHAMMER, WHICH YOU'RE ARGUEIINGI FORCEFULLY 335 00:31:32.432 --> 00:31:40.540 FOR US TO FIND CLOSER TO THIS CASE, THAN THE FACTS WHERE THERE WAS AN ARREST AND HE WAS 336 00:31:40.540 --> 00:31:45.270 TAKEN AWAY IN HANDCUFFS. MONICA DO OUTEIRO: I THINK THE REASON I FIND IT 337 00:31:45.270 --> 00:31:50.291 SIGNIFICANT IS IN RESPONSE TO THIS QUESTION OF AN OFFICER WILLFULLY TRYING TO GET AROUND 338 00:31:50.291 --> 00:31:57.003 A D. BECAUSE THEN WHAT I NYHAMMER? THEN WHAT WAUSSS BEFORE THIS COURT IN NYHAMMER WHEN 339 00:31:57.003 --> 00:32:02.310 YOU HAD OFFICERS THAT COULD HAVE TAKEN DIFFERENT STEPS BUT CHOSE NOT TO. JUSTICE 340 00:32:02.310 --> 00:32:06.120 PATTERSON: I THINK THE CHIEF's QUESTION RE-LATED TO BAD FAITH, USE OF DELAYING BEFORE 341 00:32:06.120 --> 00:32:13.549 THE CHARGES ARE ESTABLISHED, IN ORDER TO EEVVVADE THE A G D REQUIREMENT THAT ONCE PTTHAT 342 00:32:13.549 --> 00:32:18.494 COMPLAINT WARRANT IS IN THE HANDS OF THE OFFICER OR EXISTS, THERE HAS TO BE A DISCLOSURE. 343 00:32:18.494 --> 00:32:22.059 SO WE'R TUCKING ABOUT BAD FAITH. D MONICA DO MONICA DO OUTEIRO: 344 00:32:22.059 --> 00:32:27.472 I GUESS IS WHAT THE COURT'S THINKING ABOUT I GUESS A SITUATION LIKE WHERE THEY STARTED 345 00:32:27.472 --> 00:32:32.548 TYPING UP THE COMPLAINT AND THEN THEY STOPPED AND SAID, NO, WE DON'T WANT TO HAVE TO TELL 346 00:32:32.548 --> 00:32:38.118 THEM A D? AGAIN I THINK THAT WOULD GO INTO THETOTALITY OF THE CIRCUMSTANCES ANALYSIS 347 00:32:38.118 --> 00:32:42.921 AND OBVIOULY THAT WOULD BE SOMETHING THAT THE COURT COULD AND SHOULD CONSIDER. 348 00:32:42.921 --> 00:32:47.204 CHIEF JUSTICE RABNER: WOULD YOU LIKE TO ADDRESS THE 804B ISSUE? MONICA DO 349 00:32:47.204 --> 00:32:52.746 OUTEIRO: I DID IN MY OPENING STATEMENT. I'M HAPPY TO ADDRESS ANY QUESTIONS THE COURT 350 00:32:52.746 --> 00:34:08.911 MAY HAVE. CHIEF JUSTICE RABNER: QUESTIONS ON EITHER POINLT SPEAKER 2: 351 00:34:08.911 --> 00:34:19.131 OF COURSE THE ATTORNEY GENERAL WANTS CLEAR GUIDANCE SPEAKER 2: IS IT THE 352 00:34:19.131 --> 00:34:24.092 GUY WHO PUTS THE HANDS CUFFS ON, IS IT THE MOST EXPERIENCED ONE, OKAY, THEN HE'S 353 00:34:24.092 --> 00:34:28.933 PASSED OFF TO AN INTERROGATOR, THE INTERROGATOR MIGHT KNOW MORE THAN THE 354 00:34:28.933 --> 00:34:34.674 ARRESTING OFFICERS, WHAT DID YOU KNOW WHEN DID YOU KNOW IT, WHAT IF THERE'S TWO 355 00:34:34.674 --> 00:34:39.894 INVESTIGATING OFFICERS, WHAT IF THERE'S A SUPERVISOR VFLGD IN APPROVING THESE 356 00:34:39.894 --> 00:34:42.803 THINGS, WHAT IF AN ASSISTANT PROSECUTOR, DEPUTY ATTORNEY GENERAL COMES IN 357 00:34:42.803 --> 00:34:49.714 AND STARTS ADVISING THE OFFICERS AS TO WHAT PROBABLE CAUSE THEY HAVE TO CHARGE. 358 00:34:49.714 --> 00:34:55.375 THE INFORMATION THAT A OVRGS GIVES AT THE TIME OF ARREST CAN OFTEN BE COMPLETELY 359 00:34:55.375 --> 00:35:00.886 USELESS, CAN BE COUNTER PRODUCTIVE AND IT COULD BE HELPFUL, WHICH IS WHY THE ATTORNEY 360 00:35:00.886 --> 00:35:04.782 GENERAL IS URGING A ROW BUT THE APPLICATION OF THE TOTALITY OF CIRCUMSTANCES 361 00:35:04.782 --> 00:35:08.498 TEST. THAT'S NOT A DIRTY WORD. THE TOTALITY OF CIRCUMSTANCES IN THE HANDS OF 362 00:35:08.498 --> 00:35:13.369 A TRIAL JUDGE CAN BE TRUSTED TO PROVIDE JUSTICE IN EACH INDIVIDUAL CASE 363 00:35:13.369 --> 00:35:16.923 JUSTICE ALBIN: BUT THE OFFICER NEEDS TO KNOW WHAT TO DO AT 364 00:35:16.923 --> 00:35:21.208 THE SCENE. I KNOW YOU USED THE TERM SUBJECTIVE, BUT A POLICE OFFICER WHEN HE OR 365 00:35:21.208 --> 00:35:26.762 SHE MAKES AN ARREST, DOES SO ON AN OBJECTIVELY REASONABLE BASIS, NOT ON A 366 00:35:26.762 --> 00:35:31.426 SUBJECTIVELY REASONABLE BASIS. DO YOU AGREE? SPEAKER 2: IN THEIR 367 00:35:31.426 --> 00:35:38.284 MIND THEY MAY BE DOING IT ON AN OBJECTIVE BASIS, BUT IT'S THE TRUCH THAT 368 00:35:38.284 --> 00:35:41.470 DETERMINES WHETHER IT WAS OBJECTIVELY REASONABLE OR NOT. JUSTICE ALBIN: 369 00:35:41.470 --> 00:35:45.299 THEN EVERYTHING IS GOING TO BE SUPPRESSED BECAUSE IF HE DOESN'T HAVE A BASIS TO 370 00:35:45.299 --> 00:35:50.059 ARREST THE PERSON, THEN THE ENTIRE -- SPEAKER 2: THEY NEED 371 00:35:50.059 --> 00:35:58.380 TO PROVE ON A MOTION TO SUPPRESS THAT THE POLICE HAD SUBJECTIVE FACTS AVAILABLE 372 00:35:58.380 --> 00:36:01.850 TO THEM. JUSTICE PATTERSON: AND THE CHARGES COULD BE 373 00:36:01.850 --> 00:36:05.713 SOMETHING THAT THEY DIDN'T START OUT AS. SPEAKER 2: IT COULD BE SOMETHING 374 00:36:05.713 --> 00:36:09.719 COMPLETELY DIFFERENT AND IT CAN CUT IN BOTH DIRECTIONS, WHAT IF THE OFFICER 375 00:36:09.719 --> 00:36:14.348 IS ARRESTED FOR SOMETHING MORE SERIOUS, THEN THE DEFENSE ATTORNEY IS GOING TO SAY 376 00:36:14.348 --> 00:36:19.149 HE TLND HIM WITH MORE SERIOUS CHARGES, OF COURSE YOU'RE FORCING HIM TO TALK. 377 00:36:19.149 --> 00:36:24.461 JUSTICE ALBIN: THE SAME WAS TRUE UNDER AGD, A POLICE OFFICER GOES TO A 378 00:36:24.461 --> 00:36:28.836 JUDGE AND GETS A COMPLAINT WARNTD ON ONE ISSUE AND THEN THE THEORY -- THERE ARE 379 00:36:28.836 --> 00:36:39.959 9 CHARGES COMING FORTH FROM THE GRAND JURY. SPEAKER 2: AGD 380 00:36:39.959 --> 00:36:45.875 SAYS IT WAS MAKING A BLACK LETTER RULE THAT WAS VERY NARROW CLEARLY DEFINED AND 381 00:36:45.875 --> 00:36:51.800 OBJECTIVE AND WAS NOT CHANGING THE LAW ON ARREST OR MIRANDA, SO THE VERY 382 00:36:51.800 --> 00:36:59.141 LANGUAGE ON THE AGD COURT MADE IT CLEAR WE'RE NOT LOOKING TO BLOSSOM INTO SOME 383 00:36:59.141 --> 00:37:03.209 MAJOR OBJECTIVE THAT CAN CHANGE AND GO BACK AND FORTH, THE ISSUE IS WOULD 384 00:37:03.209 --> 00:37:10.659 THIS INFORMATION EVEN BE HELPFUL, WAS THE OFFICERS TRYING TO SUBVERT THE LAW, I 385 00:37:10.659 --> 00:37:15.983 MEAN AGD WAS CLEAR, EASY TO APPLY AND IT'S GOING FORWARD IT DOESN'T POSE 386 00:37:15.983 --> 00:37:27.590 A MAJOR OBSTACLE TO, WHETHER IT HELPS THE DEFENDANT OR NOT, THAT'S A RULING THAT 387 00:37:27.590 --> 00:37:31.636 THIS COURT MADE. JUSTICE PATTERSON: FOLLOWING UP ON JUSTICE 388 00:37:31.636 --> 00:37:37.691 PEE AIR'S QUESTIONS, THE APPELLATE DIVISION'S RULES IS ACTUAL AND SPOEFK CHARGES 389 00:37:37.691 --> 00:37:42.278 I THINK I HAVE THE LANGUAGE RIGHT, MUST BE DISCLOSED, WHAT ABOUT AN OBLIGATION TO 390 00:37:42.278 --> 00:37:46.174 SAY YOU'RE BEING ARRESTED IN CONNECTION WITH A SHOOTING THAT HAPPENED AT 391 00:37:46.174 --> 00:37:50.004 SUCH AND SUCH A PLACE THAT HAPPENED EARLIER TONIGHT. SPEAKER 392 00:37:50.004 --> 00:37:56.617 2: FIRST OF ALL THEY WILL KNOW THAT IN ALMOST THE FIRST QUESTION THAT IS ASKED. 393 00:37:56.617 --> 00:37:59.341 JUSTICE PATTERSON: BUT WE'RE TALKING ABOUT POTENTIALLY BEFORE 394 00:37:59.341 --> 00:38:02.615 THE WAIVER. SPEAKER 2: THEY'RE TOLD THAT THEY CAN INC. VOEK 395 00:38:02.615 --> 00:38:07.947 THE WAIVER AT ANY TIME SO THAT'S NOT A RUBICON THAT YOU CAN CROSS AND NEVER RETURN 396 00:38:07.947 --> 00:38:15.220 FROM, SUPPOSE YOU TELL SOMEONE OOUR ARRESTED FOR NARCOTIC ACTIVITY, THAT COULD 397 00:38:15.220 --> 00:38:25.553 BE FOURTH DEGREE INTENT TO DISTRIBUTE, THAT CAN BE FENTANYL OR MAR MARIJUANA, 398 00:38:25.553 --> 00:38:31.003 JUST TELLING SOMEBODY, THAT LITTLE BIT OF INFORMATION IS NOT WORTH THE BRIGHT LINE 399 00:38:31.003 --> 00:38:36.962 RULE AND ALL THE DAMAGES THAT IT'S GOING TO CAUSE, YOU'RE BEING ARRESTED 400 00:38:36.962 --> 00:38:41.165 IN CONNECTION WITH A SHOOTING, WHAT WAS YOUR ROLE IN THE SHOOTING, WAS IT YOUR 401 00:38:41.165 --> 00:38:48.125 GUN, A LOOK OUT, YOU COULD HAVE BEEN A WITNESS DOING ANOTHER CRIME AT THE 402 00:38:48.125 --> 00:38:51.976 TIME AND YOU HAPPENED TO SEE IT. JUSTICE LAVECCHIA: HOW IS IT MORE 403 00:38:51.976 --> 00:38:56.367 HELPFUL FOR THE DEFENDANT TO BE TOLD NOTHING ABOUT WHAT HE'S BEING ARRESTED 404 00:38:56.367 --> 00:38:59.271 FOR, THAT'S THE ALTERNATIVE THAT WE HAVE HERE. SPEAKER 2: 405 00:38:59.271 --> 00:39:04.503 WELL BEING TOLD NOTHING COULD BE BETTER THAN SAYING OH YOU'RE ONLY SUSPECTED OF 406 00:39:04.503 --> 00:39:12.253 TRESPASSING OR ONLY SUSPECTED OF DRUG POSSESSION WHEN IN REALITY THE 407 00:39:12.253 --> 00:39:17.275 PROBABLE CAUSE SUPPORTS MUCH MORE THAN THAT, AND I CAN GUARANTEE THAT THE DEFENSE 408 00:39:17.275 --> 00:39:21.921 ATTORNEY WILL COME INTO COURT AND SAY YOU ONLY TOLD HIM ABOUT A THIRD DEGREE 409 00:39:21.921 --> 00:39:26.318 CHARGE AND NOW YOU'RE CHARGING WITH A FIRST DEGREE, NOW YOU NEED TO ASK TEBDZ IT 410 00:39:26.318 --> 00:39:29.706 TO CHARGES THAT WERE ULTIMATELY SUPPORTED BY PROBABLE CAUSE. 411 00:39:29.706 --> 00:39:33.918 JUSTICE LAVECCHIA: ONE STEP AT A TIME. WE HAVE FACTS HERE WHERE SOMEONE WAS ARRESTED 412 00:39:33.918 --> 00:39:38.168 AND WAS ASKING WHAT AM I BEING ARRESTED FOR AND DID NOT GET A RESPONSE FROM 413 00:39:38.168 --> 00:39:45.165 OFFICERS. SO THAT'S THE QUESTION THAT WE HAVE IN FRONT OF US NOW, NOT THE PARADE 414 00:39:45.165 --> 00:39:50.883 OF HORRIBLES DOURN THE ROAD THAT YOU'RE WORRYING ABOUT THE NEXT ARGUMENT 415 00:39:50.883 --> 00:39:55.223 THAT A DEFENSE COUNSEL WOULD MAKE. SPEAKER 2: WELL THE ATTORNEY GENERAL 416 00:39:55.223 --> 00:39:58.196 WOULD DISAGREE THE QUESTION BEFORE THIS COURT IS WHETHER THERE SHOULD BE 417 00:39:58.196 --> 00:40:05.203 A BRIGHT LINE RULE THAT AREA TEASE SHOULD BE TOLD OF THE CHARGES FOR WHICH THEY'RE 418 00:40:05.203 --> 00:40:09.060 ARRESTED, NOW YOUR HONOR IS GOING INTO THERE FACTS OF THIS CASE -- 419 00:40:09.060 --> 00:40:11.618 JUSTICE PATTERSON: YOU'RE MAKING THAT ARGUMENT TO SHOW THAT THE IN PRACTICE, 420 00:40:11.618 --> 00:40:15.952 THE BRIGHT LINE RULE, MIGHT RESULT IN INFORMATION THAT'S ACTUALLY 421 00:40:15.952 --> 00:40:18.730 MISLEADING. SPEAKER 2: RIGHT. I MEAN A BRIGHT LINE RULE WILL 422 00:40:18.730 --> 00:40:23.623 APPLY WHERE A DEFENDANT DOESN'T ASK WHY IS HE BEING ARRESTED, THE BRIGHT LINE RULE 423 00:40:23.623 --> 00:40:29.349 MIGHT APPLY WHEN AN ARRESTING OFFICER DOESN'T FULLY KNOW ALL THE CHARGES. 424 00:40:29.349 --> 00:40:33.856 JUSTICE ALBIN: JUST TAKE THIS AWAY FOR A MOMENT EVEN FROM MIRANDA, THAT 425 00:40:33.856 --> 00:40:42.308 IN 2021 A PERSON WHO IS ARRESTED DOESN'T HAVE A RIGHT TO KNOW WHY HE OR SHE IS 426 00:40:42.308 --> 00:40:48.690 ARRESTED? THAT SOUNDS SO STRANGE TO ME, A PERSON IS PUT IN HANDCUFFS, THROWN 427 00:40:48.690 --> 00:40:54.032 IN A POLICE CAR, TAKEN DOWN TO THE POLICE STATION AND ASKED WHY WAS I ARRESTED, 428 00:40:54.032 --> 00:41:00.541 SILENCE. THAT SOUNDS SOMETHING MORE LIKE IN THE RUSSIAN REPUBLIC WOULD BE 429 00:41:00.541 --> 00:41:03.739 OCCURRING, RATHER THAN IN THE AMERICAN JUDICIAL SYSTEM. SPEAKER 2: 430 00:41:03.739 --> 00:41:09.839 WELL IT'S INTERESTING THAT YOUR HONOR INVOKES THE AMERICAN TRADITION AND NO COURT 431 00:41:09.839 --> 00:41:13.677 THROUGHOUT THE ENTIRE COUNTRY, THE FEDERAL SYSTEM OR THE STATE SYSTEM HAS 432 00:41:13.677 --> 00:41:17.783 EVER BELIEVED THAT THIS IS PART OF THE AMERICAN SYSTEM, AND THERE'S A GOOD REASON 433 00:41:17.783 --> 00:41:21.774 FOR THAT, BECAUSE THIS IS A VERY UNCERTAIN DIFFICULT TO APPLY RULE THAT COULD 434 00:41:21.774 --> 00:41:26.878 LEAD TO DISPARITY RESULTS DPENT GO ON THE FACTS OF THE CASE AND WHICH IS WHY IT IS 435 00:41:26.878 --> 00:41:30.084 TAILOR MADE FOR THE TOTALITY OF CIRCUMSTANCES TREATMENT. IF THIS IS 436 00:41:30.084 --> 00:41:37.753 LIKE SO HOLE YER THAN THOUSAND IT'S AMAZING HOW HUNDREDS OF COURTS ACROSS THE COUNTRY 437 00:41:37.753 --> 00:41:42.397 HAVE NOT FELT THE NEED TO PROVIDE THIS INFORMATION, BUT IT'S THE SUBJECTIVE -- 438 00:41:42.397 --> 00:41:46.646 THE OFFICERS ARE ACTING SUBJECTIVELY AT THAT POINT AS WELL AS ALONG THE 439 00:41:46.646 --> 00:41:52.392 WAY. THAT'S SUBJECTIVE KNOWLEDGE ON THE PART OF THE POLICE IS FIRST OF ALL DIFFICULT 440 00:41:52.392 --> 00:41:55.935 TO ASCERTAIN BY THE OFFICERS THEMSELVES AT THE SCENE, THERE COULD BE DIFFERENT 441 00:41:55.935 --> 00:42:01.231 OFRNSS WITH DIFFERENT OPINIONS, DO ALL OF THEM GET TO TESTIFY AT THE MOTION TO 442 00:42:01.231 --> 00:42:05.996 SUPPRESS, AND THE JUDGE HAS TO ASK WHEN DID YOU KNOW IT AND WHEN AND WHAT 443 00:42:05.996 --> 00:42:12.047 DID YOU TELL THE OTHER, IT BECOMES IMPOSSIBLE FOR A MOTION JUDGE TO PROVIDE AN 444 00:42:12.047 --> 00:42:18.078 ACCURATE DEPENDABLE RULING THNGSD BE PRECEDENT IN OTHER CASES. 445 00:42:18.078 --> 00:42:22.459 JUSTICE LAVECCHIA: HOW WOULD YOUR TOTALITY TEST BE APPLIED, UNDER WHAT CIRCUMSTANCES 446 00:42:22.459 --> 00:42:25.459 WOULD THERE BE AN OBLIGATION TO INFORM OF CHARGES. SPEAKER 2: 447 00:42:25.459 --> 00:42:29.558 WELL, BECAUSE I DON'T BELIEVE IN THE BRIGHT LINE RULE I DON'T THINK THAT I COULD 448 00:42:29.558 --> 00:42:33.364 SIT HERE AND SAY WHEN IS THAT PRECISE TIME BECAUSE THERE COULD BE OTHER 449 00:42:33.364 --> 00:42:37.281 FACTORS INVOLVED, WHAT DID THE DEFENDANT KNOW ON HIS OWN PART, THE DEFENDANT MIGHT 450 00:42:37.281 --> 00:42:43.493 KNOW THINGS THAT HE ALREADY KNOWS IN ADVANCE WHAT THE OFFICERS MIGHT KNOW, 451 00:42:43.493 --> 00:42:47.162 THERE COULD BE CIRCUMSTANCES WHERE LIKE I SAID THERE'S DIFFERENT OFFICERS, WE DON'T 452 00:42:47.162 --> 00:42:50.703 KNOW WHAT EACH OFFICER THOUGHT ALONG THE WAY. JUSTICE PATTERSON: 453 00:42:50.703 --> 00:42:55.170 THERE COULD BE MULTIPLE OFFENSES INVOLVED OVER THE PAST WEEK AND IF THE OFFICERS 454 00:42:55.170 --> 00:43:01.947 SAY FOR THE ONE OFFENSE IT COULD TURN OUT TO BE A LIMITING, UNNECESSARILY 455 00:43:01.947 --> 00:43:05.445 LIMITING WHAT WAS GOING ON. SPEAKER 2: RIGHT, IT COULD GO IN EITHER 456 00:43:05.445 --> 00:43:08.345 DIRECTION AND IT COULD GO -- JUSTICE LAVECCHIA: BUT MY QUESTION 457 00:43:08.345 --> 00:43:14.775 IS JUST GIVE ME A FACTOR OR A FACT WHERE IN YOUR VIEW THERE WOULD BE AN 458 00:43:14.775 --> 00:43:19.546 OBLIGATION TO INFORM OF CHARGES? I UNDERSTAND YOU STARTED TO ANSWER ME WITH 459 00:43:19.546 --> 00:43:24.222 REASONS WHY THERE MIGHT NOT BE, I'M LOOKING FOR THE FLIP SIDE. 460 00:43:24.222 --> 00:43:29.365 SPEAKER 2: THE ATTORNEY GENERAL BELIEVES THERE COULD BE NO CASE WHERE THERE'S A 461 00:43:29.365 --> 00:43:35.103 N OBLIGATION TO INFORM OF A WARRANTLESS CHARGES, THERE COULD BE CIRCUMSTANCES 462 00:43:35.103 --> 00:43:40.511 WHERE IT COULD BE BENEFICIAL TO ALL CONCERNED, IF IT'S SOMETIMES PERFECT 463 00:43:40.511 --> 00:43:46.007 KNOWLEDGE IS UNKNOWABLE AT THAT POINT, POLICE OFFICERS ARE NOT LAWYERS, THIS 464 00:43:46.007 --> 00:43:50.210 COURT HAS RECOGNIZED THAT IN SEVERAL CONTEXT, EVEN LAWYERS DISAGREE AS TO WHAT 465 00:43:50.210 --> 00:43:53.594 THE CHARGES SUPPORT. JUSTICE LAVECCHIA: THIS ISN'T A TRICK 466 00:43:53.594 --> 00:43:57.549 QUESTION, I'M TRYING TO UNDERSTAND YOUR TOTALITY OF THE CIRCUMSTANCES 467 00:43:57.549 --> 00:44:01.610 APPLICATION IN PRACTICE. SPEAKER 2: WELL, THAT'S A DIFFICULT QUESTION 468 00:44:01.610 --> 00:44:06.817 BECAUSE THAT IMPLICATES A LOT OF DIFFERENT TOTALITY, THE LEVEL OF EXPERIENCE 469 00:44:06.817 --> 00:44:14.396 THE DEFENDANT HAS WITH THE SYSTEM, WHAT HAS BEEN TOLD TO HIM, HE'S GIVEN MIRANDA 470 00:44:14.396 --> 00:44:19.103 WARNINGS, THAT'S THE GOLD STANDARD OF INTERROGATIONS IN THIS COUNTRY, THAT'S 471 00:44:19.103 --> 00:44:23.942 THE GOLD STANDARD OF PROTECTING SOMEONE'S RIGHTS AGAINST AN INVOLUNTARY STATEMENT, 472 00:44:23.942 --> 00:44:29.469 IF HE GETS THAT, THAT GOES A LONG WAY TO PROTECTING HIS RIGHTS. 473 00:44:29.469 --> 00:44:33.763 JUSTICE ALBIN: WHEN DOES A PERSON GET TO KNOW WHY HE'S ARRESTED, SO ASSUME 474 00:44:33.763 --> 00:44:39.309 HANDCUFFED, THROWN IN A CAR, THROWN IN THE POLICE STATION CELL, NOT UNTIL WHAT, 475 00:44:39.309 --> 00:44:43.781 48 HOURS LATER WHEN THERE'S A COMPLAINT WARRANT IS ISSUED? 476 00:44:43.781 --> 00:44:50.714 SPEAKER 2: WELL, FIRST OF ALL IN THIS CASE HE WAS TOLD HE WAS UNDER ARREST. 477 00:44:50.714 --> 00:44:54.403 JUSTICE ALBIN: I'M TRYING TO FIND OUT BASED UPON WHAT YOU'RE TELLING US 478 00:44:54.403 --> 00:44:59.499 WHEN DOES A DEFENDANT HAVE A RIGHT TO BE TOLD WHY HE'S ARRESTED AND BEING HELD. 479 00:44:59.499 --> 00:45:02.387 SPEAKER 2: CERTAINLY WHEN A REASONABLE PERSON WOULD FEEL THEY'RE 480 00:45:02.387 --> 00:45:10.184 NOT FREE TO LEAVE ON A SUBSTANTIAL BASIS THEY'RE ENTITLED TO MIRANDA WARNINGS. 481 00:45:10.184 --> 00:45:13.226 JUSTICE ALBIN: WHEN DO THEY HAVE THE RIGHT TO BE TOLD WHY 482 00:45:13.226 --> 00:45:17.305 THEY'VE BEEN ARRESTED. SPEAKER 2: IN TERMS OF THE CONTEXT OF AN 483 00:45:17.305 --> 00:45:23.387 INTERROGATION, THEY DON'T HAVE A DEDUCEABLE MINIMUM CONSTITUTIONAL RIGHT 484 00:45:23.387 --> 00:45:27.476 -- JUSTICE ALBIN: FORGET ABOUT THE INTERROGATION, A PERSON 485 00:45:27.476 --> 00:45:33.621 IS ARRESTED AND THROWN IN A JAIL CELL, WHEN DOES THE RIGHT TO BE TOLD WHY YOU'RE 486 00:45:33.621 --> 00:45:39.806 IN A JAIL CELL KICK IN. SPEAKER 2: THAT'S NOT AL SIMPLE QUESTION 487 00:45:39.806 --> 00:45:45.913 TO ASK, CERTAINLY BEFORE ADVERSARIAL PROCEEDINGS TAKE PLACE HE SHOULD BE 488 00:45:45.913 --> 00:45:50.083 MADE AWARE OF IT, IT COULD BE RELEVANT BEFORE QUESTIONING, WE'RE NOT SAYING IT 489 00:45:50.083 --> 00:45:57.067 SLUNT EVER BE TOLD, IT'S NEVER RELEVANT, WE'RE NOT SAYING THAT, THE TOTALITY 490 00:45:57.067 --> 00:46:03.987 OF CIRCUMSTANCES CASE IS WELL EQUIPPED, WELL DEVELOPED, IN THE HANDS OF A JUDGE 491 00:46:03.987 --> 00:46:09.806 THAT CAN MAKE A RULING IN A COMMON SENSE WAY WITHOUT THROWING A MONKEY WRENCH 492 00:46:09.806 --> 00:46:16.252 INTO THIS AREA OF LAW. JUSTICE PATTERSON: INDEED OUR WHOLE STMG 493 00:46:16.252 --> 00:46:20.394 IS BASED ON THAT JUDICIAL DETERMINATION ON THAT COMPLAINT WARRANT. 494 00:46:20.394 --> 00:46:23.784 SPEAKER 2: THAT'S MORE IMPORTANT THAN THE ARRESTING OFFICER AT THE SCENE. 495 00:46:23.784 --> 00:46:28.121 JUSTICE PATTERSON: AND JUST TO STATE THE OBVIOUS, THE JUDGE 496 00:46:28.121 --> 00:46:34.479 CAN TELL THE ARRESTING OFFICER YOU'RE OUT OF LUCK, THERE'S NO PROBABLE CAUSE HERE 497 00:46:34.479 --> 00:46:39.161 SNIECHLTD IT'S DONE ALL THE TIME, AND SOMETIMES THE OPPOSITE HAPPENS, WELL 498 00:46:39.161 --> 00:46:45.669 YOU KNEW FACTS THAT COULD HAVE SUPPORTED A HIGHER CHARGE, BUT -- 499 00:46:45.669 --> 00:46:49.527 JUSTICE SOLOMON: I GLEAN FROM WHAT YOU'RE SAYING S-CORRECT ME IF I'M WRONG, THAT 500 00:46:49.527 --> 00:46:54.504 YOU BASICALLY HAVE TWO DECISIONS, ONE IS BEING TOLD NOTHING IS BETTER THAN 501 00:46:54.504 --> 00:46:57.423 BEING MISLED FROM THE DEFENDANT'S STANDPOINT. SPEAKER 2: THAT'S CORRECT. 502 00:46:57.423 --> 00:47:01.554 JUSTICE SOLOMON: AND SECOND THE DIFFERENCE BETWEEN AGD WHICH/SEEMS 503 00:47:01.554 --> 00:47:08.596 TO BE TALKING INCLUDING YOURSELF, AND OUR CASE, IS THAT THERE WAS AN INTERVENING 504 00:47:08.596 --> 00:47:12.664 EVENT MEANING A JUDGE MADE A LEGAL CONCLUSION TO CHARGE THAT DEFENDANT. 505 00:47:12.664 --> 00:47:21.416 IT WAS BEFORE A JUDGE, IT WASN'T BEFORE THE CAPTAIN BACK AT THE PRECINCT. 506 00:47:21.416 --> 00:47:24.475 SPEAKER 2: THAT'S PRECISELY CORRECT, YOUR HONOR, AND BETTER THAN THAT IT'S 507 00:47:24.475 --> 00:47:27.958 OBJECTIVE, IT'S SOMETHING EVERY OFFICER IS AWARE OF. JUSTICE 508 00:47:27.958 --> 00:47:34.782 SOLOMON: BUT ISN'T IT -- MY FIRST POINT IS THAT WHATEVER AN OFFICER MAY SAY, THAT IS 509 00:47:34.782 --> 00:47:40.132 INCONSISTENT WITH WHATEVER THE CHARGING DOCUMENT SAYS, WILL BE THE SUBJECT 510 00:47:40.132 --> 00:47:44.988 OF A MOTION. SPEAKER 2: ABSOLUTELY. IT WILL. 511 00:47:44.988 --> 00:47:49.934 JUSTICE SOLOMON: IN EVERY SINGLE CASE, IN EVERY SINGLE INSTANCE, THIS AND EVERY 512 00:47:49.934 --> 00:47:55.856 OTHER ONE THAT COMES THEREAFTER, IF WOEF A BRIGHT LINE RULE SOME TRIAL COURT 513 00:47:55.856 --> 00:48:00.553 WILL BE HEARING THAT MOTION TO SUPPRESS MIRANDA BECAUSE WHATEVER THE OFFICER SAYS 514 00:48:00.553 --> 00:48:04.544 IS DIFFERENT THAN WHATEVER IS IN THE CHARGING DOCUMENT. 515 00:48:04.544 --> 00:48:09.016 SPEAKER 2: RIGHT, THEY'LL ACCUSE THE OFFICER OF HAVING MISLED THE SUSPECT. 516 00:48:09.016 --> 00:48:12.402 JUSTICE SOLOMON: WELL, WHATEVER IT IS, EVERY CRIMINAL TRUCH IN EVERY SINGLE 517 00:48:12.402 --> 00:48:16.888 CASE WILL BE GETTING THAT MOTION BASED ON THAT SET OF FACTS. 518 00:48:16.888 --> 00:48:21.252 SPEAKER 2: THEY'LL NOT ONLY BE GETTING THAT MOTION BUT THEY WON'T BE SURE HOW TO 519 00:48:21.252 --> 00:48:26.737 RULE AND HOW TO APPLY IT, WHICH OVRS DO YOU SUPPLY IT TO, IS IT THE OFFICER 520 00:48:26.737 --> 00:48:30.720 THAT SECURES THE WAIVER, WHY IS IT NOT THAT OFFICER, WHY ISN'T THE SUPERVISOR, 521 00:48:30.720 --> 00:48:36.185 THE A P WHO MAYBE GIVES ADVICE. WE'RE GOING TO HAVE TO KNOW WHAT DID 522 00:48:36.185 --> 00:48:40.315 EVERYBODY KNOW, WHEN DID THEY KNOW AND WHO DID SHE SHARE WHAT THEY KNEW WITH, IT'S 523 00:48:40.315 --> 00:48:50.237 JUST UNA 10ABLE, IT CAN CAUSE MORE PROBLEMS THAN IT'S WORTH, IF THIS CASE SHOWS 524 00:48:50.237 --> 00:48:55.445 A CASE WHERE THEY MIGHT ASSESS BLAME AND PREJUDICE, THE TOTALITY OF 525 00:48:55.445 --> 00:48:58.811 CIRCUMSTANCES IS FULLY EQUIPPED TO HANDLE THAT. IF YOU'RE TALKING ABOUT GIVING 526 00:48:58.811 --> 00:49:04.853 GUIDANCE TO THE OFFICER AT THE SCENE THIS BRIGHT LINE RULE IS ACTUALLY NOT 527 00:49:04.853 --> 00:49:09.271 BRIGHT, THEY'RE NOT ALWAYS SURE WHEN. AND THEN IT'S APPELLATE DIVISION THROWS 528 00:49:09.271 --> 00:49:14.619 IN AN EXTRA LAYER ONLY IF IT'S DURING AN INVESTIGATION, WHAT'S THE DEFINITION OF 529 00:49:14.619 --> 00:49:17.519 AN INVESTIGATION, AN INVESTIGATION CAN START MINUTES BEFORE AN ACTUAL ARREST 530 00:49:17.519 --> 00:49:22.525 IS MADE, IT CAN LAST DAYS, WE DON'T HAVE ANY GUIDANCE AS WHO HOW LONG THE 531 00:49:22.525 --> 00:49:29.227 INVESTIGATION HAS TO BE. WHAT IF YOU'RE INVESTIGATING A DRUG CRIME AND 532 00:49:29.227 --> 00:49:36.350 UNSUSPECTEDLY IT APPEARS THAT HE'S INVOLVED IN A MURD, WHAT DO YOU HAVE TO WARN 533 00:49:36.350 --> 00:49:40.981 HIM ABOUT, THE APPELLATE DIVISION WOULD SAY YOU DON'T HAVE TO TELL HIM ABOUT THE 534 00:49:40.981 --> 00:49:43.890 MURDER BECAUSE YOUR INVESTIGATION ONLY INVOLVED THE LESSER OFFENSE, IT'S 535 00:49:43.890 --> 00:49:50.495 UNWORKABLE. I KNOW SOME PEOPLE MIGHT SEE SOME SALUTORY EFFECTS TO IT, BUT THE 536 00:49:50.495 --> 00:49:55.650 NEGATIVITY OF THE BRIGHT LINE AND THE LITIGATION THAT WOULD ENSUE, YOU KNOW, 537 00:49:55.650 --> 00:50:00.150 OVERRIDE WHATEVER LITTLE BENEFITS MAY COME. CHIEF JUSTICE 538 00:50:00.150 --> 00:50:07.709 RABNER: WOULD YOU LIKE TO ADDRESS THE 804 B AND THE CONFRONTATION CLAUSE SNIECHLTD 539 00:50:07.709 --> 00:50:11.338 I WOULD. THE APPELLATE DIVISION'S RULING IS CONCERNING BECAUSE IT MADE 540 00:50:11.338 --> 00:50:14.394 A BLANKET RULE THAT THE CROSS-EXAMINATION IS DIFFERENT AT THE PRETRIAL HEARING 541 00:50:14.394 --> 00:50:18.499 THEN IT WOULD BE AT TRIAL, AND THAT MIGHT BE TRUE IN SOME CASES BUT WE HAVE 542 00:50:18.499 --> 00:50:22.048 TO LOOK AT THIS CASE AND IN THIS CASE THE ONLY REASON THAT THIS STATEMENT WAS PUT 543 00:50:22.048 --> 00:50:26.013 IN WAS FOR IDENTIFICATION PURPSZ. SO THE ONLY ISSUE IS IDENTIFICATION, 544 00:50:26.013 --> 00:50:31.666 IT'S NOT ALL THESE SIDE ISSUES THAT USUALLY IT CAN BE DELVED INTO AT TRIAL, IT'S 545 00:50:31.666 --> 00:50:34.878 ONLY ABOUT THE IDENTIFICATION, THE CROSS-EXAMINATION THAT IDENTIFICATION 546 00:50:34.878 --> 00:50:38.898 WOULD HAVE BEEN THE SAME AT TRIAL, WOULD HAVE BEEN THE SAME AT THE PRETRIAL HEARING. 547 00:50:38.898 --> 00:50:41.893 JUSTICE ALBIN: SO DEFENDANT IS CLAIMING OTHERWISE, SO I WRANT 548 00:50:41.893 --> 00:50:46.155 YOU TO ADDRESS IT, DEFENDANT IS CLAIMING AT TRIAL THE MOTIVE WOULD HAVE BEEN TO 549 00:50:46.155 --> 00:50:51.828 DOES CREDIT THE VICTIM BY EXPOSING ITS PERSONAL BIAS AGAINST MR. SIMS, WHAT 550 00:50:51.828 --> 00:50:57.034 DO YOU HAVE TO SAY ABOUT THAT. SPEAKER 2: THAT COULD HAVE BEEN DONG 551 00:50:57.034 --> 00:51:03.783 AT THE PRETRIAL HEARING, IT'S JUST AS IMPORTANT AT THE PRETRIAL HEARING 552 00:51:03.783 --> 00:51:09.088 AS THE TRIAL, GENERAL BELIEVABILITY AND CREDIBILITY IS JUST AS IMPORTANT AT TRIAL 553 00:51:09.088 --> 00:51:13.836 AS IT WOULD BE AT THE HEARING. THE FACTS OF THIS CASE SUGGEST THAT THE 554 00:51:13.836 --> 00:51:17.549 CROSS-EXAMINATION WOULD HAVE BEEN BOTH. NOW, IF THE DEFENDANT WANTS TO SAY STRA 555 00:51:17.549 --> 00:51:22.923 TEGICALLY I WOULD HAVE RATHER WAITED TO TRIAL, THAT'S NOT GOOD ENOUGH, THE QUESTION 556 00:51:22.923 --> 00:51:26.059 IS THE OPPORTUNITIES AND SIMILAR MOTIVE, IT DOESN'T HAVE TO BE PRECISELY 557 00:51:26.059 --> 00:51:29.989 THE SAME, AND IT DOESN'T HAVE TO BE THE CROSS-EXAMINATION THAT EITHER YOU DID OR 558 00:51:29.989 --> 00:51:35.276 THE CROSS-EXAMINATION THAT YOU WISH YOU DID, IT'S THE OPPORTUNITY YOU HAD 559 00:51:35.276 --> 00:51:40.006 AT SIMILAR CROSS-EXAMINATION AND HERE THERE'S NO QUESTION ABOUT UNAVAILABILITY 560 00:51:40.006 --> 00:51:46.118 AND CRAWFORD HAS MADE CLEAR THAT IT'S JUST THE AVAILABILITY, THE UNAVAILABILITY, 561 00:51:46.118 --> 00:51:49.945 I'M SORRY, AND THE OPPORTUNITY TO CROSS. HE HAD THAT OPPORTUNITY TO CROSS AND 562 00:51:49.945 --> 00:51:54.162 HE ACTUALLY DID DELVE INTO SOME OF THESE ISSUES. HE COULD HAVE DONE MORE. 563 00:51:54.162 --> 00:51:59.518 SO THE OBJECTIVE ISSUES ARE PRESENT IN BOTH HEARINGS. JUSTICE 564 00:51:59.518 --> 00:52:05.283 ALBIN: OUR EVIDENCE RULE SEEMS TO BE MORE DEMANDING THAN THE CONFRONTATION CLAUSE 565 00:52:05.283 --> 00:52:08.674 IN THIS SITUATION BECAUSE IT'S OPPORTUNITY AND OUR EVIDENCE RULE REQUIRES 566 00:52:08.674 --> 00:52:17.952 SIMILAR MOTIVE, AND THE SIMILAR MOTIVE IS THEY'RE ALLEGING BIAS AND THE KEY ISSUE 567 00:52:17.952 --> 00:52:25.013 AT THE WADE HENDERSON HEARING IS WHETHER OR NOT THERE WAS A SUGGESTIVE 568 00:52:25.013 --> 00:52:29.881 IDENTIFICATION AND WHETHER OR NOT ULTIMATELY IT'S RELIABLE, THEY'RE CLAIMING THAT 569 00:52:29.881 --> 00:52:37.578 THIS BIAS PIECE IS NOT AN INHERENT PART OF THAT DETERMINATION. 570 00:52:37.578 --> 00:52:44.393 SPEAKER 2: WELL BIAS IS PART OF ANY TIME A WITNESS TAKES THE STAND AND GIVES TESTIMONY, 571 00:52:44.393 --> 00:52:49.441 BIAS IS IMENT MRIFTLY RELEVANT TO THAT HEARING, THE ABILITY TO PERCEIVE, 572 00:52:49.441 --> 00:52:55.833 THE ABILITY TO RECALL, THE GENERAL CREDIBILITY AND RELIABILITY, THOSE THINGS ARE 573 00:52:55.833 --> 00:52:59.713 HE THINK DID HE MEAN MILK TO ANY TIME SOMEONE TAKES THE STAND. 574 00:52:59.713 --> 00:53:03.613 JUSTICE ALBIN: BUT THE REALITY IS A WADE HEARING, TYPICALLY THE DEFENSE ATTORNEY 575 00:53:03.613 --> 00:53:08.595 THINKS THIS IS JUST GOING TO BE AN IDENTIFICATION PROCEEDING, THAT I 576 00:53:08.595 --> 00:53:14.414 WON'T HAVE TO THROW OUT THE KITCHEN SINK WHICH CAN WAIT FOR TRIAL, LIKE THE PERSON 577 00:53:14.414 --> 00:53:18.392 AT THE -- THE DEFENDANT AT THE WADE HEARING TYPICALLY ISN'T THINKING I'M NOT 578 00:53:18.392 --> 00:53:23.337 GOING TO HAVE AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESS AT TRIAL, 579 00:53:23.337 --> 00:53:27.291 AND THEREFORE MAY NOT LAYOUT THE ENTIRE ARSENAL. SPEAKER 2: IT'S THE 580 00:53:27.291 --> 00:53:32.573 SIMILAR OPPORTUNITY, NOT THE SIMILAR MOTIVE. JUST BECAUSE YOU HAVE STRATEGIC 581 00:53:32.573 --> 00:53:37.436 DECISIONS THAT YOU THINK YOU'D BENEFIT BY WAIT, THE MOTIVE IS NOT THE KEY, 582 00:53:37.436 --> 00:53:42.563 IT'S THE OPPORTUNITY AND SIMILAR MOTIVE, AND THAT MOTIVE DOESN'T HAVE TO BE PRECISELY 583 00:53:42.563 --> 00:53:47.848 IDENTICAL, IT COULD BE SIMILAR ENOUGH AND THE 4 THINGS I LAID OUT ARE GENERAL 584 00:53:47.848 --> 00:53:52.244 ENOUGH, OBJECTIVE ENOUGH, THAT YOU WOULD HAVE A MOTIVE GOING INTO THAT AT THE WADE 585 00:53:52.244 --> 00:53:56.902 HEARING, AS WELL AS AT TRIAL, ON THIS LIMITED ISSUE OF IDENTIFICATION WHICH 586 00:53:56.902 --> 00:54:02.744 IS ALL THAT WE'RE TALKING ABOUT IN THIS CASE. SO HE WAS GIVEN THE ABILITY TO 587 00:54:02.744 --> 00:54:07.530 CROSS-EXAMINE, HE HAD THE OPPORTUNITY, AND HE EVEN DID DELVE INTO SOME OF THESE 588 00:54:07.530 --> 00:54:13.741 THINGS, MAYBE NOT AS DEEPLY AS HE WANTED TO, MAYBE IN RETROSPECT HE WISHES HE ASKED 589 00:54:13.741 --> 00:54:17.660 MORE, BUT THAT'S NOT THE STANDARD, THE STANDARD IS YOU HAD THE OPPORTUNITIES 590 00:54:17.660 --> 00:54:24.815 AND A SIMILAR MOTIVE AND YOU DECIDED TO MAKE A STRATEGIC DECISION, STRA TEACH NICK 591 00:54:24.815 --> 00:54:34.682 DECISION DOES IS NOT SFIFT MOTIVE TO OVERRIDE THE RULE OR THE CRAWFORD 592 00:54:34.682 --> 00:54:39.282 DECISION, SO THE APPELLATE DIVISION MISAPPLIED THE OPPORTUNITY FOR 593 00:54:39.282 --> 00:54:42.715 CROSS-EXAMINATION PRONG CERTAINLY OF CRAWFORD AND ALSO OF THE RULES OF EVIDENCE 594 00:54:42.715 --> 00:54:47.013 AND WE WOULD ASK THE COURT TO FIND THAT IN THIS CASE THE OPPORTUNITY TO 595 00:54:47.013 --> 00:54:54.081 CROSS-EXAMINE WAS SIMILAR ENOUGH -- THE OPPORTUNITY WAS FULL OPPORTUNITY WITH A 596 00:54:54.081 --> 00:54:58.394 SIMILAR ENOUGH MOTIVE TO PURSUE THOSE OBJECTIVE THINGS THAT I POINTED OUT. 597 00:54:58.394 --> 00:55:02.203 CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE? THANK YOU 598 00:55:02.203 --> 00:55:15.023 MR. MUSH ROSS KEY. MR. MAC IN A MARA. SPEAKER 3: MAY IT 599 00:55:15.023 --> 00:55:18.692 PLEASE THE COURT, I WANT TO THANK THE COURT FOR GIVING THE COUNTY PROSECUTOR'S 600 00:55:18.692 --> 00:55:22.125 ASSOCIATION OF NEW JERSEY AN OPPORTUNITIES TO ADDRESS THIS CRITICAL ISSUE 601 00:55:22.125 --> 00:55:29.154 TO THE LAW ENFORCEMENT COMMUNITY, AND I DON'T THINK IT CAN BE OVERSTATED OF WHAT 602 00:55:29.154 --> 00:55:38.425 A SUBSTANTIAL AND SIGNIFICANT SEA CHANGE THAT SIMS HAS ROUTE OR WOULD ROUTE 603 00:55:38.425 --> 00:55:44.941 IF THIS COURT WOULD ALLOW IT TO STAND, AND I HAVE BEEN ACCUSED OF HAVING A FOOTNOTE 604 00:55:44.941 --> 00:55:50.579 FET ISSUE, BUT I DO NOT BELIEVE THAT THE FOOTNOTES 6 OR 7 WILL CABIN THE 605 00:55:50.579 --> 00:55:55.784 DANGER AND THE MISCHIEF THAT THIS CASE MAY LEAD TO BECAUSE IT CAN'T BE DIVORCED 606 00:55:55.784 --> 00:56:02.367 FROM THE RATIONALE PUT FORTH BY THE SIMS CASE THAT SOMEHOW IT WAS DRIVEN 607 00:56:02.367 --> 00:56:08.490 BY TRUE STATUS, THAT IT TOOK LANGUAGE FROM AGD AND CREATED THIS CONCEPT OF THIS 608 00:56:08.490 --> 00:56:16.033 OVER ARCHING PRINCIPLE THAT SOMEHOW A SUSPECT IS ENTITLED TO TRUE STATUS OR 609 00:56:16.033 --> 00:56:28.275 ADVISEMENT AS TO TRUE STATUS. AND THIS COURT HAS APTLY SAID IN THE PAST THAT IT'S 610 00:56:28.275 --> 00:56:35.043 THE BUSINESS OF THE COURTS TO DRAW A LINE AND IT'S AN ENIGMA OF LAW WHERE TO DRAW 611 00:56:35.043 --> 00:56:38.903 A LINE AS PRETTY MUCH EVERYTHING OF VALUE REQUIRES A LAW, AND I THINK THE 612 00:56:38.903 --> 00:56:44.811 WAY FOR THIS COURT TO ALLEVIATE ITS CONCERNS ABOUT THE FACTUAL FABRIC OF CASE 613 00:56:44.811 --> 00:56:53.074 CASE AND AS WELL AS TO ALLEVIATE THE CONCERNS OF THE KOUJ PROSECUTOR'S 614 00:56:53.074 --> 00:56:56.276 ASSOCIATION OF NEW JERSEY AFTERNOON I ALSO SUBMIT TO THE TRIAL COURTS IS TO MAINTAIN 615 00:56:56.276 --> 00:56:59.435 THE STATUS QUO BECAUSE THERE ARE MORE THAN SUFFICIENT PROTECTIONS WITHIN 616 00:56:59.435 --> 00:57:08.352 THE SYSTEM, ESPECIALLY IN NEW JERSEY, IN LIGHT OF AGD BEING A UNIQUE OUTLIER, IT IS 617 00:57:08.352 --> 00:57:31.196 HARD TO BELIEVE THAT ANY SISTER STATE SITES A.G.D.. JUSTICE 618 00:57:31.196 --> 00:57:31.198 PATTERSON: WHAT DO YOU TO THE QUESTION ASKED OF YOUR COLLEAGUE ABOUT BAD FAITH, 619 00:57:31.198 --> 00:57:37.267 EVASION OF A.G.D. BY DELAY, SOMEONE STRATEGICALLY DOING THAT KNOWING AN 620 00:57:37.267 --> 00:57:43.856 INTERROGATION IS GOING TO HAPPEN. MR. MCNAMARA: I DO TAKE THE RESPECTFUL 621 00:57:43.856 --> 00:57:49.113 POSITION THAT AVOIDING A.G.D. IS NOT NECESSARILY EQUIVALENT WITH BATTER 622 00:57:49.113 --> 00:57:53.774 FAITH, IN THIS SENSE. THE TRUE STATUS OF ANY PERSON WHO IS BEING ENTER VURD, THE 623 00:57:53.774 --> 00:57:58.480 TRUE TRUE STATUS IS WHETHER OR NOT THEY KNOW THEY DID IT OR NOT, THE POLICE 624 00:57:58.480 --> 00:58:03.149 HAVE AN OBLIGATION AND LAW ENFORCEMENT HAS AN OBLIGATION TO FERRET OUT THOSE WHO HAVE 625 00:58:03.149 --> 00:58:10.553 COMMITTED OFFENSES, BUT MUST DO SO WITHIN THE RULES OF ENGAGEMENT. AS FOR 626 00:58:10.553 --> 00:58:15.033 WHETHER OR NOT SOMEONE NEEDS TO BE INFORMED OF WHETHER OR NOT THEY'VE BEEN ARRESTED, 627 00:58:15.033 --> 00:58:22.215 IF THEY ARE TOLD THEY ARE NOT FREE TO GO, THEN UNDER OUR MIRANDA JURIS PRUDENCE 628 00:58:22.215 --> 00:58:27.312 THE OBLIGATION FOR THE STATE TO INFORM SOMEONE OF THEIR MIRANDA RIGHTS COMES TO 629 00:58:27.312 --> 00:58:33.378 FRUITION, AND THAT IS AN OBJECTIVE TEST. SO THE IDEA OF SOMEONE NOT BEING TOLD 630 00:58:33.378 --> 00:58:38.829 WHY THEY ARE BEING ARRESTED, THERE'S STILL AMPLE PROTECTIONS BECAUSE THE MIRANDA 631 00:58:38.829 --> 00:58:45.037 REGIME EXISTS. CHIEF JUSTICE RABNER: LET'S REFRAME THE QUESTION 632 00:58:45.037 --> 00:58:49.639 AND TAKE THE WORDS BAD FAITH OUT BECAUSE THAT HAS A NEGATIVE CONNOTATION. SUPPOSE 633 00:58:49.639 --> 00:58:53.447 YOU HAVE A SITUATION WHERE TWO OFFICERS ARRESTS AN INDIVIDUAL, ONE SAYS 634 00:58:53.447 --> 00:58:57.780 WHY DON'T WE FILE THE CHARGES BEFORE THE INTERVIEW AND THE SECOND ONE SAYS HOLD 635 00:58:57.780 --> 00:59:02.868 OFF, IF WE DO THAT, WE THEN HAVE DO ALERT AS TO WHAT THE CHARGES ARE, AND WE'D 636 00:59:02.868 --> 00:59:06.695 PREFER NOT TO DO THAT. WHAT THEN? MR. MCNAMARA: I THINK 637 00:59:06.695 --> 00:59:15.577 THAT'S AN APPROPRIATE TACTICAL DECISION THAT MAY BE MADE THAT WILL NOT 638 00:59:15.577 --> 00:59:23.624 NECESSARILY READ DOWN TO THE VIOLATION OF A PERSON'S MIRANDA RIGHTS BECAUSE AT A 639 00:59:23.624 --> 00:59:28.590 MINIMUM THEY WILL STILL HAVE TO BE TOLD FROM AN OBJECTIVE STANDARD, THERE'S A 640 00:59:28.590 --> 00:59:32.836 PROTECTION THERE, BECAUSE IF IT'S A PERSON OBJECTIVELY BELIEVES THEY'RE KNOTS 641 00:59:32.836 --> 00:59:37.325 FREE TO GO, THE MIRANDA OBLIGATION KICKS IN. CHIEF JUSTICE 642 00:59:37.325 --> 00:59:41.932 RABNER: NO BRIGHT LINE RULE, BUT COULD A JUDGE CONSIDER THAT, THAT MOTIVE ON THE 643 00:59:41.932 --> 00:59:45.844 PART OF THE OFFICER, AS PART OF THE TOTALITY OF THE CIRCUMSTANCES. 644 00:59:45.844 --> 00:59:48.681 MR. MCNAMARA: YES, AND I THINK WHEN WE'RE TALKING ABOUT THE SPECTRUM 645 00:59:48.681 --> 00:59:54.367 OF CASES, OBVIOUSLY SIMS PUTS FORTH A PER SE RULE WHICH IS OBVIOUSLY THE GREATEST 646 00:59:54.367 --> 00:59:59.221 CONCERN TO THE COUNTY PROSECUTORS, THAT IT MAY BE CLEARER IN THIS CASE WHERE 647 00:59:59.221 --> 01:00:05.549 IT IS A STRAIGHT LINE FROM A TO B, I'M ARRESTING YOU FOR ATTEMPTED MURDER, IN MY 648 01:00:05.549 --> 01:00:09.677 HEAD THAT'S WHAT I'M DOING AND THAT'S WHY I PLACED YOU IN CUSTODY, BUT OBVIOUSLY 649 01:00:09.677 --> 01:00:16.100 THERE ARE A MYRIAD OF FACTS AND CASES WHERE SOMEONE COULD BE SEIZED TO SATISFY 650 01:00:16.100 --> 01:00:21.055 THE FOURTH AMENDMENT AND THEN THE ANALYSIS TURNS INTO WHETHER THE 5TH AMENDMENT 651 01:00:21.055 --> 01:00:25.947 HAS BEEN VIOLATED, BUT FOLLOWING UP ON YOUR QUESTION, THIS COURT HAS LONG 652 01:00:25.947 --> 01:00:32.028 RECOGNIZED THAT THE WAIVER OF MIRANDA PROTECTIONS AND OUR COMMON LAW PROTECTIONS, 653 01:00:32.028 --> 01:00:39.676 IT'S NOT SELF EXECUTING, THAT A SUSPECT HAS TO BE GIVEN SUFFICIENT INFORM 654 01:00:39.676 --> 01:00:44.537 ESTIMATION TO DISSIPATE THE INHERENT PRESSURES THAT HAVE BEEN RECOGNIZED IN CUSTODIAL 655 01:00:44.537 --> 01:00:49.213 INTERROGATION, SO WHEN YOU'RE TALKING ABOUT TOTALITY OF CIRCUMSTANCES, I THINK 656 01:00:49.213 --> 01:00:55.078 IF SOMEONE IS LINKING THEIR WAIVER TO THE IDEA OF I'M NOT GOING TO WAIVE 657 01:00:55.078 --> 01:00:59.428 UNLESS YOU TELL ME WHAT I'M ARRESTED FOR, THAT THEY CONTROL THAT NATURE OF THE 658 01:00:59.428 --> 01:01:03.582 COLLOQUY, THAT'S THE TYPE OF CIRCUMSTANCE THAT WOULD THEN BE PUTS INTO THE 659 01:01:03.582 --> 01:01:10.621 TOTALITY OF CIRCUMSTANCES BUCKET AND AS MR. MUR ROSS KEY POINTED OUTER, IT WOULDN'T 660 01:01:10.621 --> 01:01:15.823 NECESSARILY BE DISPOSITIVE BUT IT WOULD BE A FACTOR TO BE CONSIDERED IF IT'S 661 01:01:15.823 --> 01:01:22.066 TIED TO THE CONTROL OF THE WAIVER ITSELF. THIS COURT LOOKS AT RTS 662 01:01:22.066 --> 01:01:27.950 CASE IN STATE VS. DIAZ-BRIDGES, OBVIOUSLY WORDS MATTER, WHAT A DEFENDANT SAYS 663 01:01:27.950 --> 01:01:32.275 MATTERS AS TO WHETHER OR NOT A WAIVER IS INVOLVED OR WHETHER IT HAS BEEN -- AFRMENT 664 01:01:32.275 --> 01:01:40.465 IF WE ACCEPTED THAT LOGIC, WE MIGHT AS WELL JUST REVERSE READ, A.G.D. AND 665 01:01:40.465 --> 01:01:44.721 VINCENTY, BECAUSE THE DEFENDANT IN READ, THE DEFENDANT WASN'T TOLD THAT HIS 666 01:01:44.721 --> 01:01:49.769 ATTORNEY WAS OUTSIDE THE DOOR, OBVIOUSLY HAD THE POWER TO INVOKE HIS 5TH AMENDMENT 667 01:01:49.769 --> 01:01:55.593 RIGHT, HE WAS GIVEN HIS MISH RIGHTS. MR. MCNAMARA: AND THIS 668 01:01:55.593 --> 01:01:59.533 COURT CONCLUDED THAT THAT VERY SPECIFIC INFORMATION AND YOU DID IN READ POINT 669 01:01:59.533 --> 01:02:03.664 TO THE ELEVATED NATURE OF THE AN ATTORNEY BEING PRESENT AND THE ELEVATED 670 01:02:03.664 --> 01:02:06.756 IMPORTANCE OF THAT PARTICULAR FACT. JUSTICE ALBIN: BUT THE THREAD 671 01:02:06.756 --> 01:02:13.824 RUNNING THROUGH READ AND I THINK A.G.D. AND VINCENTY IS THE ABSENCE OF 672 01:02:13.824 --> 01:02:18.775 CRITICAL INFORMATION BEING PROVIDED TO THE DEFENDANT. RIGHT? THAT'S WHAT WE SAID? 673 01:02:18.775 --> 01:02:27.866 MR. MCNAMARA: THAT IS THE ULTIMATE THAT'S THE ULTIMATELY 674 01:02:27.866 --> 01:02:33.338 KNOT THAT YOU TIED TO LINK THE CASES TO OUR COMMON LAW TRADITION, BUT IF YOU LOOK 675 01:02:33.338 --> 01:02:38.765 AT NYHAMMER, AND YOU SPECIFICALLY AT THE FACTS IN NYHAMMER, IN NYHAMMER 676 01:02:38.765 --> 01:02:43.628 MR. NYHAMMER WAS ASKED TO COME DOWN TO THE POLICE DEPARTMENT, HE GAVE A TAPED STATEMENT 677 01:02:43.628 --> 01:02:48.594 WHICH ENDED AT -- EXCUSE ME, IF YOU LOOK AT YOUR OPINION IN NYHAMMER, HE 678 01:02:48.594 --> 01:02:55.189 GAVE A TAPED INTERVIEW WHICH ENDED AT 1127 A.M., AFTER THE TAPED INTERVIEW WAS 679 01:02:55.189 --> 01:03:04.073 COMPLETED HE BEGAN TO CRY AND THEN HE ADMITTED THAT HE HAD SEXUALLY 680 01:03:04.073 --> 01:03:08.501 ASSAULTED HIS NIECE, HIS TRUE STATUS AT THAT POINT IF YOU TAKE SIMS TO ITS NATURAL 681 01:03:08.501 --> 01:03:12.569 CONDITION THAT THE OVRS NOW WOULD HAVE THE KNOWLEDGE OR I'M SURE THE SUBJECTIVE 682 01:03:12.569 --> 01:03:19.592 BELIEF YOU ARE NOW GOING TO BE ARRESTED FOR SEXUALLY ASSAULTING YOUR NIECE, 683 01:03:19.592 --> 01:03:24.646 YOU DIDN'T BELIEVE THAT'S WHAT WAS GOING TO HAPPEN BEFORE YOU CAME HERE BUT NOW 684 01:03:24.646 --> 01:03:29.682 I THINK THAT'S WHAT'S GOING TO HAPPEN TO YOU, BUT IN NYHAMMER YOU INDICATED 685 01:03:29.682 --> 01:03:34.829 THAT THE MIRANDA EXCEPTIONS WERE SUFFICIENT AND WHEN HE GAVE THE SECOND TAPED 686 01:03:34.829 --> 01:03:39.706 INTERVIEW AFTER MAKING THE ADMISSION BETWEEN THE TWO TAPED INTERVIEWS YOU 687 01:03:39.706 --> 01:03:45.412 INDICATED THERE WAS NO NEED IN NYHAMMER TO GIVE THAT ADDITIONAL INFORMATION. THE 688 01:03:45.412 --> 01:03:49.235 UNITED STATES SUPREME COURT HAS INDICATED IN COLORADO VERSUS SPRING THAT 689 01:03:49.235 --> 01:03:52.704 THE POLICE KNOWLEDGE IS NOT NECESSARY TO BE GIVEN TO THE DEFENDANT IN ORDER FOR 690 01:03:52.704 --> 01:03:56.699 THE DEFENDANT TO MAKE A KNOWING WAIVER. NOT A SINGLE COURT IN THE UNITED STATES 691 01:03:56.699 --> 01:04:06.505 HAS DEVIATED FROM THAT UNDERSTANDING AND UNDERLING GO PREMISE OF YOU'RE 692 01:04:06.505 --> 01:04:13.197 ENTITLED TO CERTAIN INFORMATION TO MAKE THE STATION HOUSE INTERROGATION FEAR, THAT'S 693 01:04:13.197 --> 01:04:16.193 WHAT MIRANDA SATISFIES. JUSTICE ALBIN: THERE'S A DIFFERENCE 694 01:04:16.193 --> 01:04:19.722 BETWEEN A POLICE OFFICER DISCLOSING WHAT HE KNOWS ABOUT THE CRIME SO THAT 695 01:04:19.722 --> 01:04:26.997 THE DEFENDANT CAN ADJUST HIS ANSWERS TO IT, FROM A DISCRETE FACT THAT A PERSON 696 01:04:26.997 --> 01:04:31.194 HAS BEEN ARRESTED AND WHETHER IT'S CRITICAL INFORMATION THAT HE SHOULD 697 01:04:31.194 --> 01:04:35.242 KNOW WHY HE'S ARRESTED. NO? MR. MCNAMARA: AND I GUESS THE ANSWER 698 01:04:35.242 --> 01:04:40.537 WOULD BE HOW DOES THAT PARTICULAR CATEGORY OR SPECIES OF INFORMATION NECESSARILY 699 01:04:40.537 --> 01:04:44.473 MOVE FORWARD OF THE -- JUSTICE PATTERSON: THAT HAS A QUALITY TO 700 01:04:44.473 --> 01:04:50.994 IT THAT'S ANTICIPATORY, IT'S MORE THAN AN OBJECTIVE FACT AS TO OBVIOUSLY 701 01:04:50.994 --> 01:04:56.440 YOU'VE BEEN ARRESTED IS AN OBJECTIVE FACT, WHY YOU'VE BEEN ARRESTED REQUIRES THE 702 01:04:56.440 --> 01:05:03.012 OFFICER MAYBE IN SOME INSTANCES TO START THINKING AHEAD AS TO WHEN WE FINALLY 703 01:05:03.012 --> 01:05:08.395 DWOEP THIS, ULTIMATELY WHAT IS HE HAVE GOING TO BE CHARGED WITH. WOULD YOU AGREE 704 01:05:08.395 --> 01:05:12.808 WITH THAT? MR. MCNAMARA: YES, AND I ALSO THINK WHAT YOU WERE 705 01:05:12.808 --> 01:05:17.771 TALKING ABOUT IN THAT MIRANDA CIRCUMSTANCE THE IDEA IS FOR THE DEFENDANT TO BE 706 01:05:17.771 --> 01:05:24.585 ABLE TO MAKE DECISIONS REGARDING HOW THE SYSTEM WORK, IF YOU CAN'T AFFORD ON A 707 01:05:24.585 --> 01:05:29.474 FOREIGN, ONE WILL BE PROVIDED TO YOU, OBVIOUSLY AS ATTORNEYS WE MIGHT 708 01:05:29.474 --> 01:05:34.795 CLEERLG ADVISE OUR CLIENT NOT TO SPEAK TO THE POLICE BUT THAT'S NOT WHAT THE LAW 709 01:05:34.795 --> 01:05:40.164 REQUIRES AND THERE'S NOTHING I KNOW PERNTS R HERNTSLY WRONG OR EVIL ABOUT 710 01:05:40.164 --> 01:05:46.431 THE POLICE TRYING TO OBTAIN ADMISSIONS. JUSTICE LAVECCHIA: IF THE 711 01:05:46.431 --> 01:05:52.466 DEFENDANT HAD REPRESENTATION AND COUNSEL ASKED THE POLICE WHAT ARE THE CHARGES, 712 01:05:52.466 --> 01:05:55.951 WOULD YOUR POSITION BE DIFFERENT. MR. MCNAMARA: MY POSITION WOULD BE 713 01:05:55.951 --> 01:06:00.711 CHARGES HAVE NOT BEEN FILED YET, WE'RE TRYING TO DETERMINE WHAT THE FINAL 714 01:06:00.711 --> 01:06:03.505 CHARGES WOULD BE. JUSTICE LAVECCHIA: WOULD IT BE DIFFERENT IF 715 01:06:03.505 --> 01:06:07.632 HE ASKED WHAT IS HE BEING ARRESTED FOR. MR. MCNAMARA: FROM A PRACTICAL 716 01:06:07.632 --> 01:06:12.088 STANDPOINT AND A CONSTITUTIONAL STANDPOINT THE UNITED STATES SPRORTS IF 717 01:06:12.088 --> 01:06:16.455 NOT THE COMMON TERM HAS INDICATED THAT A DEFENDANT HAS NO RIGHT UNDER THE FOURTH 718 01:06:16.455 --> 01:06:22.994 AMENDMENT TO BE ADVISED OF WHAT THEY'RE BEING TAKEN INTO CUSTODY FOR, AND 719 01:06:22.994 --> 01:06:26.861 I THINK THAT'S IMPORTANT, AND I WILL CERTAINLY ANSWER YOUR QUESTION I JUST THINK 720 01:06:26.861 --> 01:06:31.852 I NEED TO PREMISE MY ANSWER WHAT I THINK IS THE APPROPRIATE LEVEL OF ANALYSIS 721 01:06:31.852 --> 01:06:35.692 AND THE PATH TO THE ANALYSIS. JUSTICE LAVECCHIA: YOU UNDERSTAND 722 01:06:35.692 --> 01:06:41.160 WHERE MY QUESTION IS GOING. MR. MCNAMARA: EXACTLY, EXACTLY, 723 01:06:41.160 --> 01:06:49.010 THAT PERSON IS TOLD ANYTHING YOU SAY CAN BE USED AGAINST YOU, IF YOU NEED 724 01:06:49.010 --> 01:06:53.612 AN ATTORNEY ONE WILL BE PROVIDED FOR YOU. JUSTICE LAVECCHIA: UNDERSTOOD. 725 01:06:53.612 --> 01:06:56.432 MR. MCNAMARA: AND THOSE 5 FOLD PROTECTIONS LEVEL THE FIELD, 726 01:06:56.432 --> 01:07:01.354 THIS COURT, THE UNITED STATES SUPREME COURT, THE WISDOM OF WHAT AN ATTORNEY MIGHT 727 01:07:01.354 --> 01:07:05.041 SAY -- JUSTICE LAVECCHIA: MY QUESTION IS DOES COUNSEL'S QUESTION 728 01:07:05.041 --> 01:07:10.159 CAN ANSWERED BY LAW ENFORCEMENT, AND THE DEFENDANT DOES NOT? MR. 729 01:07:10.159 --> 01:07:14.231 MCNAMARA: NO, I DON'T THINK COUNSEL'S QUESTION GETS ANSWERED, I THINK IF CHARGES 730 01:07:14.231 --> 01:07:18.547 ARE FILED I THINK THERE'S A PROFESSIONAL ATTORNEY OBLIGATION NOT TO BE 731 01:07:18.547 --> 01:07:22.814 DECEPTIVE TO A MEMBER OF THE BAR BUT I CERTAINLY DO NOT THINK IT'S ACTING IN BAD 732 01:07:22.814 --> 01:07:27.384 FAITH IF A PROSECUTOR, IF AN ATTORNEY CALLS AND SAYS WHY IS MY CLIENT IN CUSTODY 733 01:07:27.384 --> 01:07:35.151 AND IF THE INVESTIGATION IS ON GOING TOSSES COUNSEL WE'LL LET YOU KNOW AT 734 01:07:35.151 --> 01:07:38.461 THE APPROPRIATE TIME. JUSTICE PATTERSON: IS THERE ANY DAYLIGHT 735 01:07:38.461 --> 01:07:50.731 BETWEEN WHAT YOU JUST CITED AND I UNDERSTAND WITH AIGD A.G.D. AND YOU'RE NOT A FAN, 736 01:07:50.731 --> 01:07:55.092 I UNDERSTAND, IS THERE ANY DAY LINE BETWEEN A.G.D., CHARGES HAVE BEEN FILED, YOU 737 01:07:55.092 --> 01:07:59.436 GET TO HEAR ABOUT THEM, COUNSEL ASKS, YOU'RE SAYING AS A MATTER OF 738 01:07:59.436 --> 01:08:05.513 PROFESSIONAL CURT TEA COUNSEL ASKS THE ASSISTANT PROSECUTOR OR THE OFFICER WHAT 739 01:08:05.513 --> 01:08:10.860 CHARGES HAVE BEEN FILED? MR. MCNAMARA: AND NOT TO BE DEALING 740 01:08:10.860 --> 01:08:18.470 IN SEMANTICS IT MAY BE IN THE INTEREST OF LAW ENFORCEMENT TO TELL COUNSEL 741 01:08:18.470 --> 01:08:23.380 THAT HE'S BEEN CHARGED BECAUSE THERE MAY BE A LEGITIMATE OBJECTIVE TO HAVE THE 742 01:08:23.380 --> 01:08:26.643 ATTORNEY CONVINCE HIS CLIENT TO COOPERATE. JUSTICE PATTERSON: 743 01:08:26.643 --> 01:08:30.014 I UNDERSTAND THAT, I UNDERSTAND THAT, IS THE OBLIGATION -- MR. 744 01:08:30.014 --> 01:08:34.485 MCNAMARA: THE OBLIGATION TO SPEAK TO AN ATTORNEY THAT A DEFENDANT HASN'T BEEN CHARGED 745 01:08:34.485 --> 01:08:41.822 I DO NOT THINK IS IN ANY WAY CONNECTED IN IN WAY TO THE DEFENDANT'S OPPORTUNITY 746 01:08:41.822 --> 01:08:46.347 TO EXECUTE A WAIVER, BECAUSE FOLLOWING IT NOW AS I GIVE IT A LITTLE BIT MORE THOUGHT, 747 01:08:46.347 --> 01:08:51.270 IF A CLIENT SAYS I WANT TO TALK TO THE POLICE DESPITE YOUR ADVICE FOR ME 748 01:08:51.270 --> 01:08:56.066 NOT DOING IT, HE STILL CONTROLS THAT LEISURE, THAT'S WHY WHEN WE'RE TALKING ABOUT 749 01:08:56.066 --> 01:09:01.616 THE TOTALITY OF CIRCUMSTANCES, I THINK IF YOU LINK IT BACK TO THE IDEA THAT 750 01:09:01.616 --> 01:09:12.281 A SUBJECT, ONCE THEY'RE INFORMED INFORMATION TO SDIN HERNT XULG, TSDZ VERY 751 01:09:12.281 --> 01:09:21.703 HARD FOR OBVIOUSLY INCREDIBLY EDUCATED AND EXPERIENCED ATTORNEYS LIKE YOURSELF 752 01:09:21.703 --> 01:09:28.994 OR JUDGES TO TAKE THAT STEP BACK THAT THE WISDOM OF SEEK SMEEK GO TO POLICE IS 753 01:09:28.994 --> 01:09:33.369 DIVORCED FROM THIS COURT'S COMMON LAW APPLICATION OF WHAT THE PROTECTION 754 01:09:33.369 --> 01:09:38.267 SHOULD BE AND WHEN WE TALK ABOUT WHETHER IT COULD BE BETTER AND WHAT'S THE HARM 755 01:09:38.267 --> 01:09:43.728 AND WHAT'S THE BIG DEAL, I THINK THAT CROSSES THE LINE INTO THE ADVOCACY OF WISDOM 756 01:09:43.728 --> 01:09:48.663 AS OH FOEFD TO A SYSTEMIC NEED TO ADDRESS A PARTICULAR ISSUE, AND TO ANSWER 757 01:09:48.663 --> 01:09:53.563 YOUR QUESTION, JUSTICE ALBIN, REGARDING WHEN DO THE POLICE HAVE AN OBLIGATION TO 758 01:09:53.563 --> 01:09:58.670 TELL DEFENDANTS INFORMATION, THE COURT RULE REQUIRES THAT UNLESS THERE ARE 759 01:09:58.670 --> 01:10:04.673 OTHER CIRCUMSTANCES THAT A PERSON ARRESTED UNDER A WARRANTLESS ARREST WITHIN 12 760 01:10:04.673 --> 01:10:09.013 HOURS HAS TO BE PRESENTED TO A COURT. THE FOURTH AMENDMENT PRESUMES THAT 761 01:10:09.013 --> 01:10:14.844 A SEIZURE, A WARRANTLESS ARREST SEIZURE IS PRESUMPTIVELY RELIABLE FOR 48 HOURS. 762 01:10:14.844 --> 01:10:20.197 THIS COURT'S JURISPRUDENCE AND THE LENGTH OF INTERROGATION CASES OBVIOUSLY 763 01:10:20.197 --> 01:10:24.175 RECOGNIZES, AND THERE'S CASES THAT SPECIFICALLY SAY IT'S NOT NORT JUDICIARY TO 764 01:10:24.175 --> 01:10:28.062 SAY TO THE EXECUTIVE BRANCH ALL RIGHT YOU HAD ENOUGH INFORMATION, YOU CAN 765 01:10:28.062 --> 01:10:33.011 GO FORWARD, THERE ARE PROTECTIONS, THERE ARE END POINTS, AND AGAIN WHEN WE TALK 766 01:10:33.011 --> 01:10:36.986 ABOUT LINES, IF YOU VIOLATE THE FOURTH AMENDMENT OR A STATE CONSTITUTIONAL 767 01:10:36.986 --> 01:10:40.802 PROVISION AGAINST UNREASONABLE SEARCHES AND SEIZURES, THE STATEMENT IS SUPPRESSED 768 01:10:40.802 --> 01:10:46.632 ON THAT BASIS, THAT HAS NOTHING TO DO WITH VOLUNTARYNESS OR AGREEING WITH -- OR 769 01:10:46.632 --> 01:10:51.010 COMPLYING WITH THE 5TH AMENDMENT OR OUR COMMON LAW PRIVILEGES. IF YOU LOOK 770 01:10:51.010 --> 01:11:00.268 AT SOME OF YOUR MOST FAMOUS CASES IN THIS AREA, NIGHT, TEMD KWAS, DEFENDANTS WERE 771 01:11:00.268 --> 01:11:04.878 ARRESTED IN THIS COURT'S JURISPRUDENCE, THEY'RE ARRESTED AND THEN THE 772 01:11:04.878 --> 01:11:09.040 INTERVIEW GOES ON FOR HOURS, THERE'S NO OBLIGATION THAT THEY IMMEDIATELY BEGIN TO DO 773 01:11:09.040 --> 01:11:12.059 A COMPLAINTS, THERE'S NO OBLIGATION THAT THE STATE REDUCE THE CHARGES TO 774 01:11:12.059 --> 01:11:14.990 WRITING. JUSTICE PATTERSON: DID THOSE CASES INVOLVE A QUESTION 775 01:11:14.990 --> 01:11:17.650 BY A DEFENDANT? MR. MCNAMARA: I'M SORRY? 776 01:11:17.650 --> 01:11:19.478 JUSTICE PATTERSON: I JUST DON'T REMEMBER. MR. MCNAMARA: OFF THE 777 01:11:19.478 --> 01:11:22.110 TOP OF MY HEAD, I DON'T RECALL. JUSTICE PATTERSON: I DON'T THINK 778 01:11:22.110 --> 01:11:24.250 SO. MR. MCNAMARA: WHAT I CAN SAY AND I THINK HOOERZ ONE OF THE 779 01:11:24.250 --> 01:11:32.432 THINGS TO ALSO #K50E7 IN MINDS, IT'S HARD TO BELIEVE THAT MY CAREER HAS GONE ON 780 01:11:32.432 --> 01:11:40.461 SO LONG THAT NOW I'VE DONE APPELLATE WORK LONG GARY THAN I'VE DONE HOMICIDES, 781 01:11:40.461 --> 01:11:46.396 AND I'VE DONE HOMICIDES 15 OR 16 YEARS, I CANNOT THINK OF A CASE WHERE THE DEFENDANT 782 01:11:46.396 --> 01:11:52.783 HAS ASKED, AM I FREE TO GO, WHAT DID I DO, AM I BEING ARRESTED AND THERE'S 783 01:11:52.783 --> 01:11:57.574 NO OBLIGATION TO TELL THENL OTHER THAN HERE'S YOUR MIRANDA WARNINGS. 784 01:11:57.574 --> 01:12:00.682 JUSTICE PATTERSON: WHAT IS THE LAW TO DATE, OBVIOUSLY WE KNOW THIS IS A NEW ISSUE 785 01:12:00.682 --> 01:12:05.602 IN THE MIRANDA CONTEXT, BUT WHAT IS THE LAW TO DATE ON THE SPECIFIC QUESTION 786 01:12:05.602 --> 01:12:09.673 BEING ASKED HERE WHICH IS WHY AM I BEING ARRESTED. THE COURT: 787 01:12:09.673 --> 01:12:19.959 I THINK THAT'S A FOURTH AMENDMENT QUESTION THAT'S BEEN ANSWERED UNDER CASE NAME, 788 01:12:19.959 --> 01:12:29.445 THAT WHEN YOU SEE A DEFENDANT, YOU CAN SEE SOMEBODY ON A MOTOR VEHICLE OFFENSE 789 01:12:29.445 --> 01:12:36.460 AND THEN INTERVIEW THEM ABOUT BURGLARIES, YOU CAN SEIZE SOMEBODY ON A PAROLE VIOLATION 790 01:12:36.460 --> 01:12:41.294 AND INTERVIEW THEM BL SHOOTINGS, THE FOURTH AMEND. IS AN OBJECTIVE 791 01:12:41.294 --> 01:12:44.293 STANDARD THAT A COURT DETERMINES FROM ALL THE CIRCUMSTANCES AND EVEN THOUGH WE TALK 792 01:12:44.293 --> 01:12:49.990 ABOUT AN A LOSE ZIV CONCEPT, IT'S A BINARY DETERMINATION, IT EITHER EXISTS 793 01:12:49.990 --> 01:13:00.235 OR IT DOESN'T, AND IF IT DOESN'T EXIST AND THE POLICE ACT AT THEIR OWN PEARL, PERIL, 794 01:13:00.235 --> 01:13:04.662 THEN THE STATEMENT IS 62 CLUEDED. JUSTICE PATTERSON: WHEN YOU SAY 795 01:13:04.662 --> 01:13:08.667 IT SKIFLTHS. MR. MCNAMARA: PROBABLE CAUSE. THEN YOU 796 01:13:08.667 --> 01:13:12.724 HAVE THE 5TH AMENDMENT JURISPRUDENCE WHERE YOU HAVE NO OBLIGATION TO TELL A SUSPECT 797 01:13:12.724 --> 01:13:16.860 ANYTHING, OUR COURT AND OUR STATE FOR THE LAST 20 YEARS OR SO HAS ADDED WHAT YOU 798 01:13:16.860 --> 01:13:21.255 DESCRIBED AS A BAIFK FACT REQUIREMENT, BUT YOU ALSO INDICATED WHEN YOU IMPOSE 799 01:13:21.255 --> 01:13:27.374 THE REQUIREMENT IN A.G.D. YOU DID NOT INTEND TO ALTER EXISTING CASE LAW IN THE 800 01:13:27.374 --> 01:13:32.029 MANNER IN WHICH THE POLICE CONDUCT INTERROGATIONS. AND AS JUSTICE 801 01:13:32.029 --> 01:13:37.375 LAVECCHIA WROTE IN BRETS KEY, WHEN YOU WERE TALKING ABOUT EXTENDING THE PROTECTIONS 802 01:13:37.375 --> 01:13:45.237 OF MIRANDA AND OUR COMMON LAW TRADITIONS, YOU STATED MIRANDA IS NOT EXTENDED 803 01:13:45.237 --> 01:13:53.705 COMBROND WHAT IS NEEDED ORB JUSTIFIED BY LTHS NECESSITY FOR THE PROTECTION AGAINST THE 804 01:13:53.705 --> 01:13:58.309 ACTUAL RIGHT AGAINST COMPELLED INTERROGATION. JUSTICE 805 01:13:58.309 --> 01:14:02.554 LAVECCHIA: WAS BRETS SKI THE EMERGENCY? MR. MCNAMARA: YES. 806 01:14:02.554 --> 01:14:06.990 BUT I THINK WHAT'S CRITICAL FROM THE ANALYSIS OF THAT CASE SEPARATING IT 807 01:14:06.990 --> 01:14:10.740 FROM THE FACTS, AS AGAIN WE'RE TALKING ABOUT A PER SE RULE IN SIMS, YOU INDICATED 808 01:14:10.740 --> 01:14:17.298 THAT THE EXTENSION VT SUPPRESSION REMEDY TIED TO MIRANDA IS NOT TO MOLD POLICE 809 01:14:17.298 --> 01:14:22.635 CONDUCT FOR ITS OWN SAKE BUT TO DISSIPATE THE COMPULSION INHERENT IN CUSTODIAL 810 01:14:22.635 --> 01:14:26.134 INTERROGATION. AND HERE THE SIMS RULE -- CHIEF JUSTICE RABNER: 811 01:14:26.134 --> 01:14:29.668 AND I ASK YOU TO BRING YOUR ARGUMENT TO A CLOSE. MR. MCNAMARA: 812 01:14:29.668 --> 01:14:32.638 ABSOLUTELY. CHIEF JUSTICE RABNER: GO AHEAD. MR. 813 01:14:32.638 --> 01:14:35.988 MCNAMARA: THE PROSECUTOR'S ASSOCIATION IS CONCERNED WHEN WE'RE TALKING ABOUT A 814 01:14:35.988 --> 01:14:42.249 WORKABLE RULE TO TRAIN, TO TEACH, TOE MOLD POLICE CONDUCT, THAT THE SIMS 815 01:14:42.249 --> 01:14:49.572 RATIONALE AS IS SORT OF TIED TO THIS CONCEPT OF TRUE STATUS IS GOING TO POLL 98 816 01:14:49.572 --> 01:14:55.409 5TH AMENDMENT COMMON LAW JURISPRUDENCE WITH FOURTH AMENDMENT PRINCIPLES, THE 817 01:14:55.409 --> 01:15:00.334 FELLOW OFFICER DOCTRINE, HOW FAR WOULD THAT EXTEND, A SITUATION THIS COURT IS 818 01:15:00.334 --> 01:15:06.029 AWARE OF OBVIOUSLY FROM YOUR OTHER CASES, THE NCIC SYSTEM, SOMEONE CAN STOP AND HOLD 819 01:15:06.029 --> 01:15:12.122 AND ARREST SOMEONE AND HAVE NO IDEA THAT THERE'S A TELETYPE INDICATING WHY 820 01:15:12.122 --> 01:15:16.707 SOMEONE NEEDS TO BE ARRESTED BUT WHEN THEY'RE TOLD THEY'RE UNDER ARREST THAT PERSON 821 01:15:16.707 --> 01:15:20.416 KNOWS THEY'RE NOT FREE TO GO AND THEREFORE THE MIRANDA OBLIGATION KICKS 822 01:15:20.416 --> 01:15:27.156 IN. HERE SIMS DOES NOT ADD TO MIRANDA IN ANY COGNIZABLE WAY OTHER THAN PERHAPS 823 01:15:27.156 --> 01:15:33.267 INDICATING IT'S A DOLLAR LOP OF INFORMATION THAT MIGHT BE BETTER TO BE 824 01:15:33.267 --> 01:15:39.847 HAD BUT IN A.G.D. ITSELF YOU INDICATED THE BASIC REQUIREMENT YOU INDICATED YOU BELIEVED 825 01:15:39.847 --> 01:15:43.517 IT WOULD NOT UNDULY BURDEN LAW ENFORCEMENT AND I THINK FROM THE FACT OF THE 826 01:15:43.517 --> 01:15:49.761 GENERAL'S POSITION 96 AND THE UNANIMOUS POSITION OF THE COUNTY PRURTD'S ASSOCIATION 827 01:15:49.761 --> 01:15:55.077 THAT SIMS WILL NOT SOENL BURDEN LAW ENFORCEMENT, BUT TO FOLLOW ONE OF ITS 828 01:15:55.077 --> 01:16:00.294 CORE FUNCTIONS, TO TRY TO GET ADMISSIONS FROM THOSE WHO KNOW THEY DID IT. 829 01:16:00.294 --> 01:16:15.716 CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. MICHELE C. BUCKLEY: 830 01:16:15.716 --> 01:16:20.546 A.G.D. . ROCHELLE WATSON: . #2K3W569D. MAY IT PLEASE THE COURT. I WOULD LIKE 831 01:16:20.546 --> 01:16:24.862 TO START MY PRESENTATION ON THE CONFRONTATION ISSUE IN THIS CASE. IF THAT'S OKAY WITH 832 01:16:24.862 --> 01:16:30.265 THE COURT. PAR FAR THE SINGLE MOST IMPORTANT PIECE OF EVIDENCE IN THIS CASE IS A STATEMENT 833 01:16:30.265 --> 01:16:35.730 FROM THE VICTIM's HOSPITAL BED WHERE HE IDENTIFIES DEFENDANT AS THE SHOOTER. THIS 834 01:16:35.730 --> 01:16:42.332 STATEMENT WAS NEVER TESTED IN THE CRUCIBLE OF CROSS-EXAMINATION BECAUSE THE VICTIM 835 01:16:42.332 --> 01:16:47.528 DISCLAIMED MEMORY OF STATEMENT AT THE WADE HEARING AND THE VICTIM WAS UNAVAILABLE AT TRIAL. 836 01:16:47.528 --> 01:16:53.734 THE CONFRONTATION CLAUSE ANALYSIS IS ACTUALLY PRETTY STRAIGHTFORWARD BUT I THINK IT'S 837 01:16:53.734 --> 01:16:58.438 GONT MUDDLED THROUGH THE LITIGATION. THE THRESHOLD QUESTION WAS WHETHER THE PRIOR 838 01:16:58.438 --> 01:17:03.452 PROCEEDING, THE WADE HEARING TESTIMONY WAS ADMISSIBLE AS A PRIOR PROCEEDING. AT TRIAL. 839 01:17:03.452 --> 01:17:09.912 THERE ARE THREE ELEMENTS TO ADMISSIBILITY. IT'S THE MOTIVE AND OPPORTUNITY FOR 840 01:17:09.912 --> 01:17:14.506 CROSS-EXAMINATION; THAT THE WITNESS IS UNAVAILABLE; AND THAT THERE WAS A PROCEEDING 841 01:17:14.506 --> 01:17:19.538 WHERE THE PERSON GAVE TESTIMONY UNDER OATH. HERE IT'S PRETTY STRAIGHTFORWARD 842 01:17:19.538 --> 01:17:25.317 THAT THE MOTIVE FOR CROSS-EXAMINATION AT THE WADE HEARING WAS VERY DISTINCT FROM THE MOTIVE 843 01:17:25.317 --> 01:17:32.826 FOR CROSS-EXAMINATION AT TRIAL. THIS WASN'T A TRADITIONAL WADE HEARING T VICTIM HAD KNOWN 844 01:17:32.826 --> 01:17:37.759 DEFENDANT FOR YEARS, AND WHILE THE HEARING WOULD HAVE TESTED THE VICTIM's ABILITY TO OBSERVE, 845 01:17:37.759 --> 01:17:42.065 THE MORE. MICHELE C. BUCKLEY: ISSUE WAS THE VORACITY OF THE VICTIM's 846 01:17:42.065 --> 01:17:47.411 IDENTIFICATION. BECAUSE THE LARGER DEFENSE AT TRIAL WAS SIMPLY THAT THE VICTIM HAD PINNED 847 01:17:47.411 --> 01:17:52.958 THIS ON MR. SIMS. IT WASN'T THAT THERE WAS -- HE DIDN'T ACTUALLY HAVE THE OPPORTUNITY 848 01:17:52.958 --> 01:17:59.566 TO OBSERVE OR THAT THE POLICE PROCEDURES WERE SUGGESTIVE. THE PROSECUTOR AND THE JUDGE 849 01:17:59.566 --> 01:18:04.498 RECOGNIZED THIS AT THE WADE HEARING. SO WHILE DEFENSE COUNSEL MAY HAVE PROBED QUESTIONS 850 01:18:04.498 --> 01:18:09.414 THAT RELATED TO VORACITY, THAT WASN'T THE CENTRAL FOCUS HERE. AND I THINK THE PROSECUTOR 851 01:18:09.414 --> 01:18:14.941 MADE A STATEMENT AT THE WADE HEARING SPECIFICALLY TO DEFEAT THE JUDGE'S FINDING OF 852 01:18:14.941 --> 01:18:19.319 INADMISSIBLE. THE PROSECUTOR SAYS, THE REAL ARGUMENT IS NOT GOING TO BE THAT HE DIDN'T 853 01:18:19.319 --> 01:18:23.445 KNOW ANTHONY SIMS. THEY'RE NOT GOING TO ARGUE THAT TO THE JURY. THEY'RE GOING TO SAY 854 01:18:23.445 --> 01:18:29.606 THAT HE PINNED IT ON ANTHONY SIMS, BUT I THINK FAST FORWARD IF THIS CASE GOES TO TRIAL, 855 01:18:29.606 --> 01:18:34.388 YOU'RE GOING TO HAVE SOMETHING DIFFERENT IN-CONSISTENT WITH THE ARGUMENTS BEING MADE 856 01:18:34.388 --> 01:18:41.769 HERE. SO I THINK THE QUESTION WHETHER DEFENSE COUNSEL HAD THE MOTIVE IS PRETTY 857 01:18:41.769 --> 01:18:46.820 STRAIGHTFORWARD AND THE TRIAL JUDGE ALSO RECOGNIZED P HE SAID, DID HE IN BAD FAITH 858 01:18:46.820 --> 01:18:52.548 SHORTLY AFTER HE WAS SHOT PRETTY MUCH IMMEDIATELY AFTER HE WAS SHOT IDENTIFY HIM WITH SOME 859 01:18:52.548 --> 01:18:57.981 ULTERIOR MOTIVE, MISIDENTIFY HIM? BUT I DON'T THINK THAT'S A REASON AT THIS POINT TO 860 01:18:57.981 --> 01:19:01.422 EXCLUDE THE STATEMENT. BECAUSE THAT WAS AN ISSUE THAT WAS JUST ABOUT THE VICTIM's CREDIBILITY. 861 01:19:01.422 --> 01:19:08.300 SO THE WADE HEARING TESTIMONY SHOULD NOT HAVE BEEN ADMISSIBLE AT ALL AT THE TRIAL. 862 01:19:08.300 --> 01:19:12.624 THE SECONDARY ISSUE WHICH IS ACTUALLY THE CRUX OF THE WADE HEARING TESTIMONY 863 01:19:12.624 --> 01:19:17.651 WAS THE HOSPITAL STATEMENT. THE HOSPITAL STATEMENT WAS INTRODUCED AT THE WADE HEARING 864 01:19:17.651 --> 01:19:23.932 AS A PRIOR IN-CONSISTENT STATEMENT. IT WASN'T ADMISSIBLE AT TRIAL WHEN THE VICTIM BECAME 865 01:19:23.932 --> 01:19:29.868 UNAVAILABLE. AND THE STATE MAKES A CONCESSION THAT DISPOSES OF THIS ISSUE ALL TOGETHER. 866 01:19:29.868 --> 01:19:34.098 THE STATE SAYS THAT THE HOSPITAL STATEMENT COULD NOT HAVE BEEN ADMITTED AT TRIAL AS A 867 01:19:34.098 --> 01:19:38.990 PRIOR IN-CONSISTENT STATEMENT. BECAUSE THE WITNESS DID NOT TESTIFY, EVEN IF THE WADE 868 01:19:38.990 --> 01:19:44.506 HEARING TESTIMONY WERE ADMISSIBLE, THAT HOSPITAL STATEMENT HAD TO HAVE BEEN REDACTED. 869 01:19:44.506 --> 01:19:50.957 AND THE COMMITTEE NOTES ON THE EVIDENCE RULE MAKES IT VERY CLEAR THAT STATEMENTS OF 870 01:19:50.957 --> 01:19:56.656 UNAVAILABLE WITNESSES OTHERWISE ADMISSIBLE UNDER THE PRIOR PROCEEDING RULE MAY BE EXCLUDED 871 01:19:56.656 --> 01:20:01.593 UNDER ANOTHER RULE OF EVIDENCE. BECAUSE AS YOU CAN IMAGINE AT A PRETRIAL HEARING, THE 872 01:20:01.593 --> 01:20:06.336 RULES OF EVIDENCE ARE RELAXED. THERE'S ALL THIS INFORMATION THAT COMES IN, ESPECIALLY 873 01:20:06.336 --> 01:20:10.294 WHEN POLICE OFFICERS ARE TESTIFYING. THERE'S HEARSAY UPON HEARSAY. BUT WHEN YOU GET 874 01:20:10.294 --> 01:20:15.223 TO THE TRIAL, THAT INFORMATION HAS TO BE INDEPENDENTLY ADMISSIBLE. AND WHEN A WITNESS 875 01:20:15.223 --> 01:20:20.871 DOES NOT SHOW UP AT A TRIAL, WE DON'T ADMIT A PRIOR IN-CONSISTENT STATEMENT. AND THIS 876 01:20:20.871 --> 01:20:28.290 COURT HAS RE-AVENUE AFFIRMED THAT IN CABBELL, IN SLAUGHTER, AND IN BROWN. THAT THE JURY 877 01:20:28.290 --> 01:20:32.143 HAS TO HAVE THE OPPORTUNITY TO VIEW THAT WITNESS AND TO MAKE AN ASSESSMENT ABOUT WHICH 878 01:20:32.143 --> 01:20:37.065 VERSION OF EVENTS THEY BELIEVE. AND THAT'S BECAUSE THE PRIOR IN-CONSISTENT STATEMENT 879 01:20:37.065 --> 01:20:42.759 RULE DOESN'T HAVE THE INDICIA OF RELIABILITY OTHER FORMS OF HEARSAY HAVE. THE WITNESS HAS 880 01:20:42.759 --> 01:20:48.448 NOW GIVEN TWO VERSIONS OF AN EVENT AND THE ONLY WAY FOR THE JURY TO DETERMINE WHICH VERSION 881 01:20:48.448 --> 01:20:52.217 TO ACCEPT WOULD BE TO SEE THIS WITNESS TESTIFY. SO I THINK THAT THE CONFRONTATION 882 01:20:52.217 --> 01:20:57.876 CLAUSE ISSUE ON WHICH ALL OF THE JUDGES AGREE IS ACTUALLY A PRETTY STRAIGHTFORWARD ANALYSIS 883 01:20:57.876 --> 01:21:06.375 OF 804A 13 AND THEN A PRETTY STRAIGHTFORWARD ANALYSIS IF THE HEARSAY WITHIN HEARSAY RULE. 884 01:21:06.375 --> 01:21:11.113 SO UNLESS THE COURT HAS ANY QUESTIONS ON THAT ISSUE, I WOULD TURN TO THE MIRANDA 885 01:21:11.113 --> 01:21:14.976 -- JUSTICE ALBIN: I JUST HAVE ONE QUESTION ON THAT. ASSUME THERE WAS A 886 01:21:14.976 --> 01:21:26.282 DEPOSITION. IT WASN'T A WADE HEARING. AND THE WITNESS DID NOT FEIGN OR TRULY HAVE A 887 01:21:26.282 --> 01:21:30.092 LACK OF RECOLLECTION, BUT ACTUALLY ASKED -- ANSWERED ALL THE QUESTIONS. AND THE PRIOR 888 01:21:30.092 --> 01:21:35.704 IN-CONSISTENT STATEMENT CAME IN. AND THERE WAS FULL CROSS-EXAMINATION. AND THEN THE 889 01:21:35.704 --> 01:21:43.702 WITNESS BEFORE THE JURY INVOKES THE 5TH AMENDMENT. IS YOUR ARGUMENT THE SAME THAT 890 01:21:43.702 --> 01:21:50.256 DEPOSITION TESTIMONY, WHERE THERE WAS, LET'S SAY, THE OPPORTUNITY AND A SIMILAR MOTIVE 891 01:21:50.256 --> 01:21:56.131 TO CROSS-EXAMINE, IT DOESN'T COME IN BECAUSE THE PERSON TOOK THE 5TH? I'M TRYING TO SEE 892 01:21:56.131 --> 01:22:01.592 HOW FAR YOUR ARGUMENT GOES. ROCHELLE WATSON: SO UNDER THOSE CIRCUMSTANCES, 893 01:22:01.592 --> 01:22:06.400 THE DEPOSITION TESTIMONY WOULD COME IN AT TRIAL UNDER THE PRIOR PROCEEDING RULE, BUT THE 894 01:22:06.400 --> 01:22:09.791 HEARSAY -- JUSTICE ALBIN: BUT THEY DIDN'T KNOW THAT THE WITNESS WAS NOT GOING 895 01:22:09.791 --> 01:22:15.061 TO BE AVAILABLE. THAT HE WAS GOING TO TAKE THE 5TH. ROCHELLE WATSON: I DO 896 01:22:15.061 --> 01:22:19.884 BELIEVE THAT THE HEARSAY RULE SUGGEST THAT'S THAT PRIOR IN-CONSISTENT STATEMENT WOULD HAVE 897 01:22:19.884 --> 01:22:26.182 HAD TO HAVE BEEN REDACTED. I THINK IN MY BRIEF I CITE -- I CAN'T REMEMBER -- A PENNSYLVANIA 898 01:22:26.182 --> 01:22:30.128 CASE WHERE THEY HAD THE EXACT SAME SITUATION. MERELY BECAUSE SOMETHING WAS ADMISSIBLE 899 01:22:30.128 --> 01:22:35.823 IN THE FIRST PROCEEDING DOESN'T MEAN IT BECOMES ADMISSIBLE AT TRIAL. IT STILL HAS TO BE 900 01:22:35.823 --> 01:22:39.863 INDEPENDENTLY ADMISSIBLE. AND THERE IS AN APPELLATE DIVISION CASE THAT SORT OF EXPLAINS 901 01:22:39.863 --> 01:22:45.075 THIS WHERE THE -- THERE IS A DEFENDANT WHO TESTIFIES AT TRIAL AND THE STATE IMPEACHES 902 01:22:45.075 --> 01:22:53.864 HIM WITH HIS PRIOR CONVICTIONS, WHICH WAS PERMISSIBLE. THAT DEFENDANT'S CONVICTION WAS 903 01:22:53.864 --> 01:22:59.060 OVERTURNED. THEN AT THE RE-TRIAL, HE DECIDED NOT TO TESTIFY, AND THE STATE WANTED TO 904 01:22:59.060 --> 01:23:03.519 INTRODUCE THAT PRIOR TESTIMONY, WHICH THERE WAS NO PROBLEM WITH INTRODUCING THE PRIOR 905 01:23:03.519 --> 01:23:08.015 TESTIMONY, BUT THE APPELLATE DIVISION SAID, WELL, YOU CAN'T INTRODUCE THE PRIOR CONVICTIONS 906 01:23:08.015 --> 01:23:17.567 BECAUSE THE PRIOR CONVICTION RULES REQUIRE THAT THE PERSON IS A WITNESS AT TRIAL. 907 01:23:17.567 --> 01:23:20.182 JUSTICE PATTERSON: IS THAT REALLY THE SAME SITUATION? ROCHELLE WATSON: IT'S 908 01:23:20.182 --> 01:23:25.714 NOT THE SAME SITUATION, BUT I THINK IT EXPLAINS THE SORT OF -- THE DIFFERENT ANALYSIS 909 01:23:25.714 --> 01:23:32.935 THAT ONE MUST DO WHEN YOU HAVE A PRIOR PROCEEDING. YOU HAVE TO ANALYSIS THE 910 01:23:32.935 --> 01:23:36.528 INDEPENDENT PARTS OF THAT PROCEEDING, THE TESTIMONY THAT WAS ADMITTED AT THE FIRST 911 01:23:36.528 --> 01:23:41.002 PROCEEDING, AND THEN MAKE AN ASSESSMENT ABOUT WHETHER IT WOULD BE -- IT'S ALL ADMISSIBLE 912 01:23:41.002 --> 01:23:44.401 AT THE SECOND PROCEEDING. JUSTICE PATTERSON: BECAUSE YOU ALWAYS LOOK AT -- 913 01:23:44.401 --> 01:23:49.958 IF SOMETHING IS ADMISSIBLE UNDER THE HEARSAY EXCEPTION, YOU ALWAYS THEN LOOK FOR OTHER 914 01:23:49.958 --> 01:23:53.097 LAYERS OF HEARSAY, RIGHT? ROCHELLE WATSON: YES. JUSTICE PATTERSON: 915 01:23:53.097 --> 01:23:58.595 THAT'S REALLY BOTH SORT OF DIFFERENT EXERCISES OF THAT PRINCIPLE. BUT I'M NOT SURE THAT 916 01:23:58.595 --> 01:24:02.362 CASE IS QUITE ON POINT, BUT NEVER MIND. ROCHELLE WATSON: I THINK THAT CASE 917 01:24:02.362 --> 01:24:07.023 JUST SIMPLY SUGGESTS THAT ADMISSIBILITY AT THE FIRST HEARING DOES NOT -- AND THIS WAS 918 01:24:07.023 --> 01:24:12.763 A TRIAL IN A TRIAL. DOES NOT AUTOMATICALLY GUARANTY ADMISSIBLE AT A SUBSEQUENT HEARING. 919 01:24:12.763 --> 01:24:16.880 AND THAT WAS BECAUSE THE EVIDENCE RULE -- THERE WASN'T AN INDEPENDENT BASIS TO INTRODUCE 920 01:24:16.880 --> 01:24:21.531 THE PRIOR CONVICTIONS AT THE SUBSEQUENT HEARING. JUSTICE SOLOMON: YOU'RE 921 01:24:21.531 --> 01:24:27.805 NOT SAYING THAT THE WADE HEARING TRANSCRIPT IS INADMISSIBLE AT THE SUBSEQUENT TRYING TRIAL. 922 01:24:27.805 --> 01:24:32.729 YOU'RE ARGUING THAT THE STATEMENT READ INTO THE RECORD AT THE WADE HEARING IS INADMISSIBLE 923 01:24:32.729 --> 01:24:37.127 AT THE SUBSEQUENT TRIAL. ROCHELLE WATSON: IN THIS PARTICULAR CASE? 924 01:24:37.127 --> 01:24:41.582 JUSTICE SOLOMON: YES. ROCHELLE WATSON: I'M ARGUING THAT THE WADE HEARING 925 01:24:41.582 --> 01:24:47.063 WAS NOT ADMISSIBLE WHOLESALE. HOWEVER, THE SUBSTANCE OF THE WADE HEARING WAS THE PRIOR 926 01:24:47.063 --> 01:24:51.066 IN-CONSISTENT STATEMENT. SO THAT'S THE HEART OF THIS CASE, THE PRIOR INSISTENT STATEMENT. 927 01:24:51.066 --> 01:24:55.809 AND I'M ARGUING THAT WAS ALSO NOT ADMISSIBLE. JUSTICE SOLOMON: BECAUSE THAT'S 928 01:24:55.809 --> 01:25:03.593 THE HEARSAY WITHIN HEARSAY? ROCHELLE WATSON: YES. SO, YOUR HONORS, I'D 929 01:25:03.593 --> 01:25:11.126 LIKE TO RETURN TO THE MIRANDA ISSUE HERE. AND IT'S BLACK LETTER LAW IN NEW JERSEY THAT 930 01:25:11.126 --> 01:25:16.434 DEFENDANTS CHARGED IN A CRIMINAL COMPLAINT MUST BE TOLD OF THE CHARGES. THAT'S NOT BEING 931 01:25:16.434 --> 01:25:24.446 DISPUTED. MR. SIMS IS VERY SIMILARLY SITUATED TO A.G.D. AND VINCENTY. THIS IS NOT A 932 01:25:24.446 --> 01:25:28.490 NYHAMMER CASE. THE POLICE HAD PROBABLE CAUSE TO ARREST MR. SIMS FOR CERTAIN SPECIFIC 933 01:25:28.490 --> 01:25:33.933 CRIMES. PROBABLE CAUSE FOR ARREST AND PROBABLE CAUSE TO CHARGE GO HAND IN HAND. THEY'RE 934 01:25:33.933 --> 01:25:38.251 NOT INDEPENDENT ASSESSMENTS, BECAUSE IF YOU'RE ARRESTING SOMEONE, YOU HAVE TO BE ABLE 935 01:25:38.251 --> 01:25:47.063 TO IDENTIFY THE BASIS OF YOUR SUSPICION TIED TO A CRIMINAL OFFENSES. IS NOT JUST ANY 936 01:25:47.063 --> 01:25:52.704 BAD ACT THAT YOU SEE IS SOMEHOW A BASIS TO ARREST SOMEONE. AND MR. SIMS WAS NOT A SUSPECT 937 01:25:52.704 --> 01:25:57.072 LIKE THE DEFENDANT IN NYHAMMER. HE WAS UNDER ARREST AND REGARDLESS OF WHAT THAT 938 01:25:57.072 --> 01:26:01.125 INTERROGATION PRODUCED, HE WAS GOING TO BE CHARGED AND HE WAS GOING TO BE DETAINED. THE 939 01:26:01.125 --> 01:26:08.204 FORCES OF THE STATE HAD BEEN ARRAIGNED AGAINST HIM VERY SIMILARLY TO THE DEFENDANTS IN 940 01:26:08.204 --> 01:26:15.212 A.G.D. AND VINCENTY. IN TERMS OF THE BURDENS THAT THIS RULE IMPOSES ON LAW 941 01:26:15.212 --> 01:26:20.287 ENFORCEMENT, IT HAS TO BE EMPHASIZED THAT THE CLASSES OF CASES THAT WE'RE TALKING ABOUT 942 01:26:20.287 --> 01:26:24.573 HERE, WE'RE TALKING ABOUT CASES WHERE THE POLICE OFFICERS HAVE DEVELOPED PROBABLE CAUSE 943 01:26:24.573 --> 01:26:29.620 AND THEY HAVE MADE AN ASSESSMENT TO NOT GET A COMPLAINT WARRANT FOR WHATEVER REASON AND 944 01:26:29.620 --> 01:26:34.827 I'M NOT SUGGESTING IT'S BAD FAITH BUT THEY'VE MADE AN ASSESSMENT TO NOT GET A COMPLAINT 945 01:26:34.827 --> 01:26:38.800 WARRANT TO ARREST THAT DEFENDANT. SO THE PERCEIVED DIFFICULTY OF TELLING THE PERSON 946 01:26:38.800 --> 01:26:43.549 WHAT THE CHARGES ARE IS A DIFFICULTY THAT THE POLICE OFFICERS CREATED THEMSELVES. IF THEY 947 01:26:43.549 --> 01:26:48.206 HAD SIMPLY GONT A WARRANT, THEY WOULD HAVE BEEN ABLE TO READ OFF OF THE WARRANT WHAT THE 948 01:26:48.206 --> 01:26:53.524 CHARGES ARE. IN ANY EVENT, THE COURT RULE REQUIRES -- THE COURT RULES REQUIRE 949 01:26:53.524 --> 01:26:58.895 THAT WHEN SOMEONE IS PLACED UNDER ARREST, THE COMPLAINT HAS TO BE PREPARED ALMOST 950 01:26:58.895 --> 01:27:04.695 IMMEDIATELY. SO THE IDEA IS THAT ONCE YOU'VE ARRESTED SOMEONE, YOU HAVE A PRETTY GOOD 951 01:27:04.695 --> 01:27:09.522 SENSE OF WHAT THE CHARGES ARE ALMOST IMMEDIATELY. THESE CONCERNS ABOUT LIKE MAYBE YOU 952 01:27:09.522 --> 01:27:16.208 WON'T KNOW THE DEGREE OF THE SORT OF INJURY THAT'S AT ISSUE OR THE WEIGHT OF THE DRUGS, 953 01:27:16.208 --> 01:27:23.134 THERE'S NOT THAT MUCH TIME TEMPORALLY TO BE DELIBERATING ABOUT WHAT THE CHARGES ARE. 954 01:27:23.134 --> 01:27:27.291 AND POLICE OFFICERS MAKE THESE ASSESSMENTS AND THEY FILE A COMPLAINT. AND IF EVIDENCE 955 01:27:27.291 --> 01:27:32.699 COMES TO LIGHT AFTER, THE COMPLAINT CAN BE AMENDED. THIS IS NOT THAT ONEROUS OF A RULE 956 01:27:32.699 --> 01:27:36.471 TO ASK POLICE OFFICERS TO TELL SOMEONE WHAT THE CHARGES ARE AT THE TIME OF THE ARREST. 957 01:27:36.471 --> 01:27:42.953 CHIEF JUSTICE RABNER: COULD YOU HELP US UNDERSTAND HOW THIS RULE PLAYS OUT 958 01:27:42.953 --> 01:27:48.868 IN PRACTICE? SUPPOSE YOU HAVE A SITUATION WHERE AN OFFICER BELIEVES THERE'S SUFFICIENT 959 01:27:48.868 --> 01:27:54.267 PROBABLE CAUSE FOR A KIDNAPPING CHARGE AND TELLS THAT TO THE SUSPECT BEFORE THE INTERVIEW. 960 01:27:54.267 --> 01:27:59.991 AND IS ON THE FENCE AS TO WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT A PROBABLE 961 01:27:59.991 --> 01:28:04.988 CAUSE DETERMINATION FOR A MURDER. SO IT DOESN'T SAY ANYTHING ABOUT THAT. SUSPECT WAIVES. 962 01:28:04.988 --> 01:28:12.186 AND THEN DURING THE INTERROGATION ADMITS TO BOTH THE KIDNAPPING AND TO A MURDER. WAS 963 01:28:12.186 --> 01:28:18.106 THAT WAIVER VALID? ROCHELLE WATSON: WELL, IF THE -- IF THAT DEFENDANT IS 964 01:28:18.106 --> 01:28:23.543 UNDER ARREST FOR THE KIDNAPPING AND THE POLICE OFFICERS CONVEY THE ESSENCE OF THE CHARGES 965 01:28:23.543 --> 01:28:27.436 TO THAT DEFENDANT AND IT BECOMES PRETTY CLEAR THAT THE POLICE DIDN'T HAVE PROBABLE CAUSE 966 01:28:27.436 --> 01:28:32.355 FOR THE MURDER AND THAT'S SOMETHING THAT'S -- THAT BECOMES CLEAR DURING THE INTERROGATION, 967 01:28:32.355 --> 01:28:37.596 THEN IT WOULDN'T HAVE BEEN REASONABLE FOR THE POLICE OFFICERS TO TELL THAT DEFENDANT THAT 968 01:28:37.596 --> 01:28:41.660 HE HAD PROBABLE CAUSE FOR MURDER. CHIEF JUSTICE RABNER: ONE COULD IMAGINE 969 01:28:41.660 --> 01:28:46.714 THAT A GOOD DEFENSE ATTORNEY WOULD BRING A CHALLENGE AND SAY, JUDGE, IT SEEMS LIKE THERE 970 01:28:46.714 --> 01:28:54.304 SHOULD HAVE BEEN AMPLE NOTICE ABOUT THE MURDER AS WELL. WE WANT HEARING ON THAT. AT 971 01:28:54.304 --> 01:28:59.716 THAT POINT, TELL ME IF YOU THINK THIS IS IN-CORRECT, WOULD THERE HAVE TO BE A HEARING 972 01:28:59.716 --> 01:29:05.989 TO DELVE INTO WHAT THE OFFICER KNEW AND WHEN THE OFFICER KNEW IT WITH RESPECT NOT SIMPLY 973 01:29:05.989 --> 01:29:10.824 TO THE KIDNAPPING BUT TO THE MURDER IN THESE TYPES OF SITUATIONS? ROCHELLE 974 01:29:10.824 --> 01:29:18.624 WATSON: WELL, I THINK IF THE DEFENDANT IS CONTENDING THAT HE DIDN'T KNOWINGLY AND 975 01:29:18.624 --> 01:29:23.543 VOLUNTARILY WAIVE BECAUSE HE DIDN'T HAVE THE NOTICE OF THE KIDNAPPING AND MURDER, THE 976 01:29:23.543 --> 01:29:29.850 SUPPRESSION HEARING WOULD NECESSARILY INVOLVE SOME INFORMATION ABOUT WHAT THE POLICE OFFICER 977 01:29:29.850 --> 01:29:36.398 KNEW ABOUT THE MURDER AND WHETHER THE FAILURE TO TELL WAS MISLEADING OR WHETHER PROBABLE 978 01:29:36.398 --> 01:29:42.216 CAUSE SIMPLY JUST DEVELOPED OR SOLIDIFIED THROUGHOUT THE COURSE OF THE INTERROGATION. 979 01:29:42.216 --> 01:29:46.148 CHIEF JUSTICE RABNER: LET'S ASSUME NO MISLEADING, NO BAD FAITH IN ANY OF THIS. 980 01:29:46.148 --> 01:29:52.515 IT DOESN'T SOUND QUITE SO CLEAR THEN. ARE WE ESSENTIALLY GOING TO BE WALKING IN -- WE 981 01:29:52.515 --> 01:29:59.300 SEE MIRANDA CHALLENGES, LEGITIMATE MIRANDA CHALLENGES. IN MOST CASES WOULDN'T WE THEN 982 01:29:59.300 --> 01:30:04.693 BE SEEING THIS SORT OF CHALLENGE THAT REQUIRE DELVING INTO THE OFFICER'S PRECISE KNOWLEDGE 983 01:30:04.693 --> 01:30:09.544 AND WHATEVER INFORMATION WAS KNOWN IN MANY, MANY A SITUATION? ROCHELLE WATSON: 984 01:30:09.544 --> 01:30:14.603 WELL, I THINK THAT THE LIMITATION THAT THE APPELLATE DIVISION PLACES ON THE RULE IS 985 01:30:14.603 --> 01:30:21.497 PRETTY HELPFUL THAT IT'S INFORMATION THAT THE -- THIS RULE ONLY APPLIES WHEN THE POLICE 986 01:30:21.497 --> 01:30:27.737 HAVE BEEN CONDUCTING AN INVESTIGATION. AND SO THERE ARE A NUMBER OF CHECKS IN THE SYSTEM. 987 01:30:27.737 --> 01:30:38.526 JUSTICE PATTERSON: HOW COULD THAT POSSIBLY BE LIMITING? IF SOMEONE IS UNDER 988 01:30:38.526 --> 01:30:45.070 ARREST AND IS BEING INTERROGATED, BY DEFINITION, THERE'S AN INVESTIGATION GOING ON. CORRECT? 989 01:30:45.070 --> 01:30:49.539 ROCHELLE WATSON: I THINK WHAT THE APPELLATE DIVISION MEANT IS IN THIS CASE 990 01:30:49.539 --> 01:30:54.956 IS THAT THE POLICE HAD BEEN INVESTIGATING THIS CRIME AND HAD BEEN ABLE TO PUT THE EVIDENCE 991 01:30:54.956 --> 01:30:58.771 TOGETHER AND PRESUMABLY THERE IS -- JUSTICE PATTERSON: BUT SOMETHING HAPPENS. 992 01:30:58.771 --> 01:31:04.195 THERE'S A SHOOTING. THERE ARE MULTIPLE VICTIMS INVOLVED. THERE MAY BE MULTIPLE SUSPECTS 993 01:31:04.195 --> 01:31:11.693 INVOLVED. THE INVESTIGATION HAS STARTED BY DEFINITION WHEN THE OFFICER HAS ARRESTED A 994 01:31:11.693 --> 01:31:16.994 SUSPECT AND BROUGHT THAT SUSPECT INTO AN INTERROGATION ROOM AND IS ADMINISTERING 995 01:31:16.994 --> 01:31:23.159 MIRANDA WARNINGS. JUST ALWAYS WOULD BE AN INVESTIGATION. I MEAN, ANOTHER ASPECT TO 996 01:31:23.159 --> 01:31:28.135 THIS THAT MIGHT THEN BE UNDER CONSIDERATION IS EXACTLY WHERE WAS THE INVESTIGATION AT 997 01:31:28.135 --> 01:31:36.314 THAT MOMENT AS EVENTS WERE UN-FOLDING. IN ANOTHER AREA OF GREAT UNCERTAINTY FOR OFFICERS 998 01:31:36.314 --> 01:31:40.359 IT SEEMS TO ME. WHY AM I WRONG ABOUT THAT? ROCHELLE WATSON: THIS POLICE OFFICER 999 01:31:40.359 --> 01:31:45.009 HAS ARRESTED THIS PERSON AND WE'RE ONLY ASKING THAT THEY DELIVER THE INFORMATION FOR WHICH 1000 01:31:45.009 --> 01:31:49.273 THEY HAVE PROBABLE CAUSE TO ARREST. SO THAT'S THE BEGINNING POINT. IF THERE IS SOME 1001 01:31:49.273 --> 01:31:53.734 SUBSEQUENT LITIGATION ABOUT WHETHER THERE IS PROBABLE CAUSE TO ARREST FOR OTHER OFFENSES, 1002 01:31:53.734 --> 01:32:00.377 THAT THE OFFICER DIDN'T SHARE AT THE -- THE MOTION JUDGE WOULD BE ABLE TO MAKE THAT 1003 01:32:00.377 --> 01:32:04.441 ASSESSMENT BECAUSE THEY'RE MAKING ALL OF THESE VERY FACT SENSITIVE ASSESSMENTS ALL THE 1004 01:32:04.441 --> 01:32:11.955 TIME IN THIS MIRANDA KAEKS. JUSTICE ALBIN: I DON'T SEE ANY DIFFERENCE. 1005 01:32:11.955 --> 01:32:19.452 IN THE CHIEF JUSTICE's QUESTION, IN THIS CASE, FROM AN A.G.D. SITUATION. BECAUSE THE POLICE 1006 01:32:19.452 --> 01:32:27.095 OFFICER JUST GOES WITH THE CHARGE TO THE JUDGE. LET'S SAY IN THE CHIEF JUSTICE's EXAMPLE 1007 01:32:27.095 --> 01:32:33.973 IT'S KIDNAPPING. NOW HE'S GOT TO TELL HIM ABOUT KIDNAPPING. NOW, THERE MAY BE THIS 1008 01:32:33.973 --> 01:32:41.012 SUSPICION ABOUT MURDER IN THE AIR. SO THE SAME PROBLEM WOULD ARISE UNDER A.G.D. 1009 01:32:41.012 --> 01:32:44.213 ROCHELLE WATSON: CORRECT. THAT DEFENDANT -- THE POLICE OFFICER MAY HAVE SAID THAT, YOU KNOW, 1010 01:32:44.213 --> 01:32:53.368 IT'S A WHATEVER DEGREE SELLING ASSAULT IN A.G.D. AND THERE MAY BE INFORMATION THAT COMES 1011 01:32:53.368 --> 01:32:57.483 OUT IN THE INTERROGATION THAT PERHAPS EXPANDS THE DATE OF THE OFFENSES. JUSTICE 1012 01:32:57.483 --> 01:33:01.840 ALBIN: WE'RE NOT TALKING SCIENCE OR PERFECTION HERE. JUSTICE PATTERSON: BUT 1013 01:33:01.840 --> 01:33:06.875 IN A.G.D. YOU HAVE A JUDICIAL DETERMINATION OF PROBABLE CAUSE AS TO A SPECIFIC CHARGE 1014 01:33:06.875 --> 01:33:13.181 AND YOU HAVE IT WRITTEN ON A PIECE OF PAPER SO THAT THE OFFICER CAN THEN REPORT ACCURATELY 1015 01:33:13.181 --> 01:33:22.728 WITHOUT ANY CONFUSION OR POTENTIAL AMBIGUITY OR EVOLVING EVENTS, THIS IS THE CHARGE. 1016 01:33:22.728 --> 01:33:30.383 THAT'S IN THE COMPLAINT WARRANT. AND THAT'S AN OBJECTIVE PIECE OF INFORMATION THAT -- 1017 01:33:30.383 --> 01:33:37.266 THE SUBJECTIVE KNOWLEDGE OF THE OFFICER, WHETHER HE OR SHE KNEW SOMETHING OR WHAT WAS 1018 01:33:37.266 --> 01:33:43.045 HAPPENING IN THAT OFFICER'S MIND IS IRRELEVANT. THERE'S OBJECTIVE INFORMATION THAT MUST BE 1019 01:33:43.045 --> 01:33:48.733 PASSED ALONG TO THE SUSPECT. ROCHELLE WATSON: YES CHLTS AND I ADMIT THAT 1020 01:33:48.733 --> 01:33:53.176 WHEN THE POLICE OFFICERS HAVE DECIDED NOT TO GET A COMPLAINT WARRANT THAT PERHAPS THERE 1021 01:33:53.176 --> 01:33:57.270 WILL BE SITUATIONS WHERE THERE WILL BE LITIGATION ABOUT WHETHER -- WHAT THE DEFENDANT 1022 01:33:57.270 --> 01:34:02.911 WAS ACTUALLY TOLD WAS MISLEADING. BUT I THINK THAT TRIAL JUDGES CAN UNDERTAKE THAT 1023 01:34:02.911 --> 01:34:11.137 ANALYSIS. AND SOMETHING THAT I DO WANT TO POINT OUT IN TERMS OF THERE ARE SOME SORT OF 1024 01:34:11.137 --> 01:34:15.491 CHECKS IN THE SYSTEM TO ENSURE THAT THIS INFORMATION IS MOSTLY ACCURATE. I DETAILED 1025 01:34:15.491 --> 01:34:24.511 IT IN MY BRIEF. YOU KNOW, BECAUSE OF CJRA, THERE ARE SOME COUNTIES THAT MANDATE THAT POLICE 1026 01:34:24.511 --> 01:34:29.195 OFFICERS CONSULT WITH THE PROSECUTORS BEFORE THEY ACTUALLY MAKE AN ARREST, A WARRANTLESS 1027 01:34:29.195 --> 01:34:34.523 ARREST. AND THE POINT OF THIS IS THEY WANT TO MAKE SURE THAT ALL THEIR Ts ARE CROSSED 1028 01:34:34.523 --> 01:34:40.265 AND THE Is DOTTED AND THAT THE CHARGES ARE ACTUALLY AN ACCURATE REFLECTION OF WHAT WILL 1029 01:34:40.265 --> 01:34:45.268 BE PUT IN THE PSA FOR A DETERMINATION OF WHETHER THIS PERSON IS GOING TO BE DETAINED. 1030 01:34:45.268 --> 01:34:50.118 IN COUNTIES THAT DON'T MANDATE PRE-ARREST CONSULTATION, POLICE OFFICERS ARE INSTRUCTED 1031 01:34:50.118 --> 01:34:56.451 THAT THEY SHOULD CONTACT THE COUNTY PROSECUTOR AS SOON AS IT IS POSSIBLE, AS SOON AS IT'S 1032 01:34:56.451 --> 01:35:01.365 SAFE AND FEASIBLE TO DO SO UPON THE WARRANTLESS ARREST. CHIEF JUSTICE RABNER: 1033 01:35:01.365 --> 01:35:06.187 WHY DON'T WE TAKE A BREAK. YOU CAN FINISH YOUR ANSWER AND THEN WE'LL TAKE A BREAK. 1034 01:35:06.187 --> 01:35:13.578 ROCHELLE WATSON: AND A FEATURE OF CJRA IS THAT THERE ARE 24/7 PROSECUTE TORL 1035 01:35:13.578 --> 01:35:22.425 ASSISTANCE. IT WORRIES ME THAT A CERTAIN CLASS OF DEFENDANTS WOULD BE DEPRIVED OF 1036 01:35:22.425 --> 01:35:26.467 INFORMATION JUST BECAUSE THE POLICE OFFICERS WOULD DETERMINE NOT TO GET A WARRANT. THE 1037 01:35:26.467 --> 01:35:29.467 POLICE OFFICERS IN THIS CASE ACTED VERY INTENTIONAL intentionally