I just talked with one of our local officers who recently attended a confession school. The instructor recommended using the term "protections" rather than "rights" or "warnings" when discussing the 38.22 warnings/rights in general and during the waiver stage of an interview. Although the specific use of the term "right" within each specific "warning" would need to be adhered to, anyone see a problem in substituting "protections" during the waiver stage and while discussing the warnings in general. For instance, "The above legal protections were read to me. I understand each of these protections and agree to waive these protections and make a statement." What do y'all think?
I'm not sure why they want to play with the language that everyone knows is acceptable. There is caselaw upholding substantial compliance with the statute, however, Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996) says: "The clearly preferable practice is for the defendant to sign a written statement that says, "I knowingly, voluntarily and intelligently waived the rights described above before and during the making of this statement." Why play word games with what we know is preferable?
As Tim has observed, why mess with what is tried and accepted--especially without a compelling reason to do so. The present formula has been adopted by law enforcement across the nation, TV shows regularly reinforce the language, and the courts have approved the wording. If the impetus for the change is that suspects don't always understand the usual formula, great care should be employed in describing the rights (so as not to expand or limit them). Alternative words might be used to explain the rights then but don't change the written warnings. Even then how does using the word "protections" instead of "rights" really help? Do we really need to create a whole new area of litigation?
I think the points made in the previous posts are good ones and I'm going to ask our officers to leave all written forms with "rights" or "warnings" therein. Appreciate the input!
Why would you want to reword it anyway. Based on the many, many cases I've seen, the defendants aren't smart enough to shut up anyway, and end up giving a confession. Better to leave it as is!
Look, I understand why a police officer might think that it "sounds" better to use the word protection rather than right. But that reason is precisely why it should not be changed. They think that some guy who is about to give them a statement may be prompted to stop and think about the rights he is giving up and refuse to go through with the waiver. But that's precisely why the suspect is required to be given these warnings in the first place. Anything that lessens the impact or importance of them I do not think would be looked upon favorably by an appellate court and, as John said, why litigate a new area of law when the issue is clear now.
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