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Arrested Developments: when talking to police should pause

I. No Facts

For whatever reason, many people who are suspected of a crime simply don’t know when to start, let alone stop, talking. The first talking that should most often happen is to consult with a qualified criminal defense attorney. This seems to be the only safe way to guarantee that police investigative processes follow not only constitutional requirements, but common sense as well.

Police often comment – though usually not to people accused of crimes how surprising is that people volunteer all kinds of damaging information. Of course, criminal defense attorneys give police credit for knowing how to ‘push’ the right buttons. In one fascinating case from Sampson County, the Supreme Court was left to finally decide whether or not someone accused and tried and convicted of a crime…had actually been arrested at the same time he began to incriminate himself.

Based on the confession in this case, the facts of the murder take on a special significance. In terms of the “confession” itself, we will have a look at the odd facts of the crime only in the conclusion to this article. For now, the discussion will concentrate solely on the issue of what made up an arrest, in a particular murder case. Though it’s not always necessary to understand whether or not the police had a “good case” or not, it can be relevant to how they treat a suspect. With that in mind, let’s look at common police procedures, and how a court may or may not think that these procedures constitute an actual arrest.

II. A Circumstantial Killing

It was one of those crimes that should never have happened. Later evidence presented by the criminal defense attorney showed it began with a loan, and ended with racial epithets and a heated argument. The court record, presented by an excellent criminal defense attorney, indicated the murder apparently ‘only’ involved a robbery. But behind the actual crime and sentencing, were issues of crack cocaine, mitigating circumstances and a jury’s recommendation of death.

Two men shared a late-night shift at a machine shop in Clinton, North Carolina. Following payday at the shop, the accused man, Barden, tried to get a little bit of cash to pay for some crack cocaine. A victim’s body was discovered immediately the following morning when the shop reopens. It was a brutal slaying. An autopsy showed 14 blows to the head, caused by a variety of then unknown tools. Blunt force trauma was listed as the cause of death. After a week of investigation, Barden was first interviewed at the shop, and disclosed at that time about borrowing money from the victim. Rather than continuing their investigation there, the detective asked Barden to go “down to the police station.” The detective at that time said to Barden (apparently in answer to a question) that Barden “was not under arrest and did not have to come,” but also that he would merely “appreciate” Barden’s help.

As the criminal defense attorney pointed out, at no time had Barden yet received any type of Miranda warning. The defense also conceded that Barden had driven himself to the police station. This is where it became even more interesting: at the station, the detective noticed blood on Barden’s shoe. Without an objection, and not having asked to talk with a lawyer, Barden handed over his shoes. Convinced that the shoes needed to be investigated, the detective legally seized the shoes and gave Barden slippers to wear home.

Another two weeks pass.

III.   Bathroom breaks, slippers, and you’re free to go…sort of.

Towards the middle of April, the suspected murder weapon was found in a small, abandoned building on the shop property. In the bag found in that building, there was bloody clothing and a billfold, both later identified as being the property of the murder victim. Also later found in the same building was a sledgehammer involved in the blunt trauma. Once again, police investigators – this time from the North Carolina State Bureau of Investigation, along with the town police – went back to the plant to again question Barden. All of these facts were later raised by the criminal defense attorney as involving serious questions about when or whether Barden had been arrested.

At the second interview, Barden, weeping, began to tell the story of the assault. This interview helps demonstrate the difference in perspective, between police conduct and what a criminal defense attorney recognizes as behaviors that may be tantamount to an arrest. For example, Barden was interviewed in a room with the door closed. From the police perspective, they later told the court, it was merely to keep noise out in the hallway from interrupting them. Once again, the criminal defense attorney would point out, no Miranda rights were given to Barden. But instead of treating this as a material deprivation of his constitutional rights, the police were to argue it meant Barden was not under arrest.

Courts will look to the general context of an interview to test whether or not an arrest has been made. For whatever reason, some particular fact suggested a casual interview, and not an arrest, to the court. Thus, facts such as providing Barden with a soft drink and cigarettes, as Barden had been promised, were taken as indicators of an interview – not an arrest.


Criminal defense attorneys routinely encounter cases where they try to repair damage to a person’s constitutional rights. As mentioned earlier, this discussion today focused on the actual arrest in this case, and when (or if) it occurred. It’s worth closing with a look at the confession itself, as well. The police rarely admit it, but there are routinely major problems with confessions in thousands of cases. Studies have been done relating to one aspect of confession problems: police-induced confessions. A particular type of defendant is especially prone to false confessions, or police-induced confessions. Criminal defense attorneys help provide a vanguard against this common problem: and DNA evidence has helped show that police-induced confessions are only the tip of the iceberg. One particularly interesting study suggests that false confessions and false admissions make up 15 to 20% of all the DNA-based exonerations. When you stop to think that false confessions, disproved before trial, don’t enter into that 15-20%, you can see false confessions are a major problem in terms of fair and equitable constitutional protections. If you, a family member or a loved one have questions about any arrest, or involving related claims or your legal rights or hearings, including confessions or police-related issues, please contact us.  You will speak with an experienced criminal defense attorney who can best answer your questions about how your rights can best be protected.  There is never a fee for this initial consultation.

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