Should private investigators read suspects their rights before conducting an interviewing?
Introduction
How does the reading of a person his rights apply to private investigators? Must they read it to the person before an interview or interrogation? What are the rights of the employer in all of this?
Investigators must know how to play the game, and where the boundaries of lawfulness are.
TRULY SPEAKING is a series of blogs that provides practical application to insightful information related to fraud and private investigations.
This article delves into this very interesting aspect in the investigation of crime.
Did You Know?
An employer should consider investigating all matters that may lead to the dismissal of an employee. Schedule 8 of Labour Relations Act (The Code of Good Practice for dismissal), states:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. …… The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance…”
But making mistakes during the investigation may be costly to the employer. Therefore they often employ private investigators to conduct interviews and investigations on their behalf. These experts know how how to gather and prepare evidence.
The courts on South Africa excludes evidence obtained in a manner that violated the rights of another person. Section 35(5) of the Constitution forms the basis for this. It determines:
“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
The Concept of Reading Suspects Their Rights
We all have saw videos of a law enforcement agent arresting a suspect. During the arrest, the arresting officer says something like this:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning.”
By informing the person of these rights, the investigator has “read the person his/her rights”.
Law enforcement agencies must relay these warnings prior to any custodial interrogation. An interrogation is custodial when the law enforcement agent considers the person to be a suspect, him into custody or deprived deprived him/her from their freedom to leave in any way.
England: The Judges’ Rules
In 1912, the judges of the Kings Bench in England, laid down as set of guidelines for the police when questioning a suspect. This is where the concept of reading a suspects their rights have all started. South Africa have adopted these rules in part.
In the English court case of R v Voisin [1918], the court convicted Voison of the murder of a woman. Investigators found part of her body in a parcel. In the parcel was a piece of paper with the words “Bladie Belgiam”. The police asked the accused if he had an objection to writing down the words “bloody Belgian” and he said: “Not at all” and had written down “Bladie Belgiam”. The accused appealed on the ground that the police did not cautioned him before asking him to write the words down. The Judge stated:
“In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice.” The court found that it is important that they should do so, for other courts may reject as evidence the statements by suspects if they deposed to it contrary to the spirit of these rules.
The Judges Rules of England:
a) allow the police to question any person with a view to finding out whether, or by whom, an offense had been committed
b) requires the police to give a caution when they had reasonable grounds to suspect that a person had committed an offense
c) requires a further caution when a person was charged and prohibited questioning afterwards charging save in exceptional circumstances
d) requires a record of questioning to be kept; and
e) provides guidance on the best way to record a formal written statement.
America: The Miranda Rights
The Miranda warnings are part of a preventive criminal procedure rule. Law enforcement agencies in America must administer it to protect anyone who is subject to direct questioning.
It stems from a ruling In the case of “Miranda v. Arizona” (Miranda v. Arizona, 384 U.S. 436, 1966). Here the the USA Supreme Court ruled that statements a suspect in custody made in response to a police interrogation will be admissible during a trial, only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them.
If the case above of the accused who wrote “Bladie Belgian” was heard in America after 1966, his appeal would have been successful.
In 1994, the enactment of South Africa’s Interim Constitution created an equivalent to the U.S. Bill of Rights. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as Miranda warnings.
In South Africa
Involuntary statements to law enforcement agencies are inadmissible in South African courts. In South Africa, law enforcement agencies must also read suspects their rights before interviews and interrogations. It is a safeguard against abuse.
Thus, their failure to deliver the Miranda warnings or something similar, may also result in the inadmissibility of evidence in a court of law. All law enforcement agencies know that they should read suspects their rights before interviewing them.
The Problem
The discussion above is relevant to law enforcement agencies. Private investigators work for private entities.
It is rare, but not unheard of, that private investigators would read suspects their Miranda rights. So if they don’t, will it nullify the use of the information obtained?
In South Africa, when an employer or its agent (private investigators, security officer, human resource representative, supervisor or manager, etc.) conducts an investigative interview there is no requirement to advise the employee of his or her rights under Miranda. The employers (rightfully so) consider these employee-employer conversations. Employers often appoint forensic investigators, also called fraud investigators, to conduct these interviews on their behalf.
During 1967, the Supreme Court in America had to decide whether the information a private employer obtained from a suspect, could be used in a criminal court. In Garrity v. New Jersey (1967) the court ruled that employers can require statements from employees but only use them for employment purposes. If they did not read the employees/suspects their rights, law enforcement agencies cannot use the information obtained in criminal prosecutions.
In terms of the Garrity rule, an employee has the right to be silent if any statements he is compelled to provide to his employer could be used against him in a subsequent criminal proceeding.
South Africa do not have a court ruling like the Garrity matter.
During an internal investigation, a private investigator can never know where the information gained during the interview will lead. At the time they conduct the interview, they cannot know whether it could end up as being part of a criminal investigation.
The Proposed Solution
When security officers or private investigators detains and questions a suspect at the direction of a law enforcement officer, they must advise suspects of their Miranda rights.
However, private investigators conduct most of their investigations without the direction of law enforcement agencies.
Therefore, during an interview as part of an internal investigation, it is advisable (not compulsory) for a private investigator to read suspects their Miranda rights if there is a possibility that the interview may assist a criminal prosecution.
It probably should become good practice. Private investigators should use their discretion on the matter. Some are already doing this as a standard practice.
There is one piece of legislation that took an interesting step in this direction. Regulation 28(7) issued in terms of the Construction Industry Development Board Act 38 of 2000 is an exception. This regulation places a statutory obligation on private investigators to read the Miranda rights to a person implicated by a complaint or suspicion.Similar legislation may provide greater clarity on the matter.
Conclusion
Quality investigations require quality investigative interviews. One of the most prominent features of both ‘generalist’ and major inquiry investigative work is its heavy reliance on interview evidence.
Therefore, the work of private investigators is important. They should keep their eye on the ball on this matter of reading suspects their rights.
Only time will tell how our South African law will develop in this regard.