This is a followup to my recent posting on Miranda rights.     Yesterday there was a report in the Portland Press Herald that, earlier this month, the York County D.A.’s office reported that police conducting the Kennebunk prostitution investigation still sought to interview 80 suspects.   While the police can hardly be faulted for the attempt, the outcome should break down as follows:  Attempts made, 80/Successful attempts 0.   People, especially those who have never been in trouble with the law before, have a remarkable capacity to believe that if they just explain themselves to an investigating police officer it will somehow help them.   Especially in the Kennebunk prostitution case, it just plain, flat out won’t.   But even when Miranda warnings are read, some people still won’t be deterred even though the giving of Miranda warnings is a clear attempt to guarantee that everything the suspect says will be admissible against him later on, and every utterance that can possibly be construed against the suspect will be so construed.    Police perfectly well understand the suspect’s desire to explain, which is why they issue issue the siren song:  Unburden yourself,  it’s your chance to tell your side of the story,  you’ll feel better.   But from the police perspective, the goal is not to allow the suspect to become one with himself,  it’s to irrevocably seal the perp’s fate by the time his name appears in the next group of the summonsed to be turned over to a breathlessly awaiting media.

People who haven’t been in much trouble before tend to perceive or at least hope that the criminal justice system will be far gentler toward them than it is likely to be.    Some people get confused by the idea that a criminal defendant is to be presumed innocent until proven guilty.  Defendants have even been known to complain when the police and the D.A. act as if they instead presume the defendant guilty–really.   How can they do that? they ask.  Aren’t I supposed to be presumed innocent?  Well, sort of, but like much else about the law, it’s complicated.  The presumption of innocence is something a criminal defendant enjoys at the trial stage of criminal proceedings.   The court and the finder of fact are bound by it during trial, but once the police and the D.A. decide you should be charged they presume you guilty.   And everything the police do once they decide you should be charged they do to add more evidence to the pile.

Police aren’t priests or pastors.   Priests and pastors typically don’t wear sidearms, or carry handcuffs and pepper spray on their belts.   Those who do wear those items don’t illuminate the path to redemption.  As the items worn on their belts suggest, they are guardians of the path to punishment.   They are even allowed by law to use a degree of deception in their  questioning of suspects, as long as the deceptive tactics aren’t enough to render the suspect’s statements involuntary.   And so they might lead a suspect to believe they think he could be innocent while they are trying to get his statement,  but oh how quickly the switch will be thrown as soon as the statement’s in the bag.   Still again, especially for those who haven’t otherwise been in trouble with the law, the desire to talk, to tell the story, to unburden is very powerful.   This is why, in the criminal justice system, very often the lambs go to the slaughter while the savvy skate on by.  And so it would be interesting to learn what the ratio of successful/attempted interviews ultimately turns out to be.

The above information and observations do not constitute legal advice and the reader does not have an attorney-client relationship with me by virtue of having read them.  The reader should not construe them in any way as legal advice.


Ed Folsom, Biddeford, Saco, Portland, Maine Criminal Defense, OUI, DUI Attorney.  York County, Cumberland County.