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Library: Policy

OKDHS:2-7-7. Miranda rights and consular notification

Revised 3-24-14

(a) Policy.  It is the Oklahoma Department of Human Services (DHS) Office of Inspector General (OIG) policy to ensure that agents conduct interviews and interrogations in a manner that protects the constitutional rights of the person being questioned, avoids coerced or involuntary statements, does not interfere with timely arraignment of any person, and minimizes prejudicial pre-trial publicity.

(b) Definitions.  The following words and terms, when used in this Section, shall have the following meanings, unless the text clearly indicates otherwise:

  • (1) "Custodial interrogation" means an interrogation of a subject that occurs while the subject is in custody.

  • (2) "Custody" means a subject is under arrest or a subject's freedom of movement or action is significantly restricted.

  • (3) "Foreign national" means a citizen of a foreign country who is in the United States either legally or illegally.

  • (4) "Interrogation" means a direct questioning of a person about a crime or suspected crime.  This also includes any words, statements, questions, or actions taken by an agent that the agent knows are reasonably likely to elicit an incriminating response from a subject.

  • (5) "Interview" means a general questioning of a person to gather information.

  • (6) "Miranda warning" means an explanation of rights given by peace officers to criminal subjects before a custodial interrogation.

(c) Issuance of the Miranda warning.

  • (1) When a subject is not in custody, the subject is free to leave an interview or interrogation at any time.  A Miranda warning is not required when a subject is not in custody or otherwise significantly deprived of freedom of movement.

  • (2) Before an agent conducts a custodial interrogation of a subject, the agent must advise the subject of his or her Miranda rights.

  • (3) After informing a subject of his or her rights, the agent may not interrogate the subject unless the subject voluntarily waives his or her rights.  When the subject refuses to acknowledge an understanding of those rights, the agent must not interrogate the subject.

  • (4) When possible, the agent obtains a signed waiver of Miranda rights from the subject.  When the subject does waive his or her rights but a signed waiver was not obtained, the agent documents the language or conduct through which the waiver occurred in the investigative report.

  • (5) When a subject is temporarily impaired by intoxication, shock, or other similar condition, the agent waits until the condition has diminished before advising the subject of his or her rights and soliciting a waiver.

(d) Coerced or involuntary statements and confessions.  When conducting both interviews and interrogations, the agent must not:

  • (1) coerce a subject or offer any inducement to a subject to participate in the interview or interrogation;

  • (2) make any assurances to the subject regarding what will transpire during the handling of the subject's case; and

  • (3) take any action or use any force to induce a subject to make a statement or confession.

(e) Invoking the right to counsel.

  • (1) At any time during a custodial interrogation, when the subject asks to speak with an attorney, the interrogation stops immediately.  If the agent is uncertain if the subject has invoked his or her right to counsel, the agent may ask clarifying questions.

  • (2) After a subject has requested an attorney, the agent does not attempt to solicit a waiver or conduct an interrogation unless the subject initiates communication with the agent or has an attorney present.

  • (3) The agent does not initiate conversation with the subject about a separate crime after this right has been invoked.

  • (4) When the subject initiates further communication with the agent after invoking the right to counsel, the agent repeats the Miranda warning and obtains a valid waiver of rights before an interrogation begins.  The agent indicates on the waiver form that the subject had previously invoked the right to counsel but has now initiated communication and wants to be questioned.

(f) Invoking the right to remain silent.

  • (1) After a subject has invoked the right to remain silent during a custodial interrogation, the agent does not attempt to solicit a waiver of rights, including a search waiver, and conduct an interrogation unless:

(A) the subject initiates communication with the agent;

(B) the second interrogation concerns a separate and unrelated offense; and

(C) a substantial amount of time has elapsed since the initial assertion of rights.

  • (2) Before beginning the subsequent interrogation, the agent repeats the Miranda warning and secures a waiver.

  • (3) When appropriate, the agent indicates on the waiver form that the subject had previously invoked the right to remain silent but has now initiated communication with the agent or has agreed to a waiver of rights.

(g) Arraignment of the subject.

  • (1) An agent takes no action that interferes with a subject's timely appearance before a judicial officer.

  • (2) After a subject is arraigned, an agent does not initiate an interrogation without the subject's counsel present regarding the offense for which the subject was arraigned.

    • (A) After the subject is no longer in custody on the original charge, an agent may interview or interrogate a subject about a separate and different crime.

    • (B) Before an agent conducts a custodial interrogation of a subject about a separate and different crime, the agent gives a separate reading of the Miranda warning to the subject.  When the subject invokes his or her rights following that warning, the agent observes and complies with those rights.

(h) Consular notification on behalf of foreign nationals.

  • (1) When an agent arrests or detains a foreign national for any reason, the agent must inform the subject of the right to contact his or her foreign consulate for assistance or advice as soon as is practicable.

    • (A) If the agent has reason to believe that an arrested or detained subject may be a foreign national, the agent asks the subject about his or her citizenship and informs the subject that the requested information is used to ensure the subject's right to consular notification and assistance.

    • (B) When the subject wishes to contact the consulate, the agent provides the subject with the means and opportunity to contact the consulate by phone.  When necessary, the agent also assists in obtaining a phone number for the consulate.

  • (2) When an agent arrests or detains a foreign national who is a citizen of a country with which the United States has a treaty, the agent notifies the subject's foreign consulate regardless of the subject's desire.  The United States Department of State maintains a list of countries that require mandatory notification.

(i) Pre-trial publicity.  OIG employees do not act in any manner that may cause pre-trial publicity tending to prejudice a defendant's right to a fair trial.

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