Will Reality Winner Walk Because of FBI “Mistake”?

A recent article shared to JQP Facebook from affiliate site Popular Military asserted that the FBI made a “mistake” in the process of arresting Reality Winner, an Air Force veteran and former government contractor charged with unlawful disclosure of classified information.

The comment section lit up with legal analysis, some from laywers and some from laypersons. Interesting questions were posed. I thought it worth the effort to go a bit deeper on some of those questions and comments since they touch on issues of Constitutional criminal law and procedure that are commonly misunderstood by Americans … yet core to the relationship between citizen and government.

At issue is media reporting of a suppression motion by Winner’s legal team. They seek to omit statements Winner made to FBI agents as they served a search warrant on her home in June, prior to her arrest. Her lawyers say any statements she made in this interview should be suppressed because she had not been read her Miranda rights. The initial criminal complaint against Winner alleges that she admitted to leaking classified documents during this pre-arrest interview.

Such suppression motions are not only common but nearly universal in trials like this one. A defense counsel must get any potential suppression opportunities on record to fulfill the charge of zealously defending a client.

While many such motions are frivolous, not all fail in court. Indeed, they’re often granted in whole or in part, changing the trial landscape and sometimes exonerating defendants. Constitutional protections are, after all, more important than any particular conviction, no matter the severity of the charged conduct.

In Winner’s case, the particular facts surrounding the interview will determine whether the motion succeeds.

Contrary to popular belief, being placed under arrest is not the test for whether a statement is admissible absent the provision of Miranda warnings. The requirement to read a person his or her rights is to dispel the inherent compulsion of a custodial interview, whether it happens before, after, or completely independent of formal arrest. While all arrests and detentions are custodial, not all custodial situations are arrests or detentions.

The foundation of Miranda is that being in custody — which is to say deprived of freedom of action in any meaningful way — is about being in an inherently coercive situation wherein defendants are susceptible to compelled self-incrimination. Miranda arms individuals with the right to request counsel as a means to protect themselves against the coercion inherent in any custodial situation. This is a procedural safeguard to help citizens realize their Fifth Amendment right.

The test under Miranda, then, is not arrest … but custody. Whether Winner’s admission is suppressed will hinge on whether the court finds she was in a custodial situation. While routine traffic stops are not custodial, in-home interviews can be. The court inquiry will be something like this: (1) what were the circumstances surrounding the interview in Winner’s home, and (2) under those circumstances, would a reasonable person have felt free to leave?

If Winner felt she was in custody and agents indeed failed to Mirandize her, the statements she made may well be suppressed. Important to note here that the intentions of the officers doing the interviewing are irrelevant. The fact they theoretically would have allowed her to leave the interview if she desired doesn’t matter. What matters is whether she felt free to leave under the circumstances or thought she was detained (or more precisely, how a reasonable person not unduly sensitive would feel in her situation).

Even if the key statements are suppressed, this doesn’t mean Winner will walk. While it is commonly believed (and portrayed in popular media) that evidence recovered via improper police procedure is excluded as “fruit of the poisonous tree,” this is not always or even commonly the case.

Under the rule of US v. Patane (2004), physical evidence recovered via a violation of Miranda is not automatically excluded. If police fail to Mirandize someone and the statements they manage to elicit lead to physical evidence that has probative value at trial, such evidence will be admissible unless the defendant made the statements under actual compulsion to self-incriminate.

In other words, even if the police fail to read someone’s rights when they should have, the evidence they recover as a result is still likely to make it into court unless they directly coerced the defendant.

Given the contents of various media accounts of Winner’s alleged activities, it’s likely there is plenty of evidence even if her admission of guilt is excluded. She may well be tried even if the court suppresses the statement, even if some physical evidence is also excluded as a result.

One commenter posited that Winner’s statements would be admissible in court regardless of Miranda because of something called the “Excited Utterance” exception to hearsay, a Federal Rule of Evidence applicable to statements made under duress. This is a misapprehension in a few different ways — one worth explaining here.

The exception could only apply if Winner’s statement were classified as hearsay. This won’t be the case. While it is indeed an out of court statement that would be offered in court to prove the truth of the matter asserted (the general definition of hearsay), it is also a statement made against Winner’s own interests. Hearsay rules assume that individuals are telling the truth when they make statements contrary to their own interests, and such statements are therefore excepted from the hearsay definition.

An admission of guilt of the matter at hand will always be admissible. In this case, it will be allowed into evidence whether or not Winner chooses to take the stand to confirm or deny the statement.

Will Reality Winner be spared trial on a technicality? It’s not likely, because agents are bound to develop a case without her statements, assuming they are excluded.

But if she is spared trial, it will be in service of protections upon which we all rely … a nontrivial technicality far more important to the cause of justice than the moral satisfaction sought by the seething masses.

We’ll have to wait and see whether a federal judge believes she was in custody.

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