I have a case where a defendant is contending that he did not voluntarily give his statement to police and that he was in custody when he was interrogated (no Miranda warnings were given). Trial court has found against him on both issues but I anticipate that he will try to submit these matters to a jury. Jury selection begins Monday. I've looked through TDCAA's Confessions by Stride/Rolator and I've found a standard voluntariness charge but I'm concerned about whether to resist and/or how to submit the custody issue... Does anyone have jury charge language re whether someone was in custody when they were interrogated? I'm looking for a good definition of "custody" so the jury won't be just floundering around with no definition. Any ideas on how to proceed and any jury charge language would sure be appreciated. My email is NOSPAMdistattorney@co.liberty.tx.us if you prefer to respond in that manner.Thanks.

That's Rolater with an "er" by the way.

Is it a fact issue about custody, i.e. "they told me I was under arrest" vs "no I didn't" or is it a voluntariness issue, i.e. "I was so scared and tired I confessed"?

I'm a little unclear. Plus, there is that great new 38.23 case by Judge Cochran.

The book needs to be tweaked a little bit on the differences between voluntariness charges and 38.23 fact issue charges.

Stansbury says in determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest. No jury is ever going to understand that concept. Whether a Miranda warning was required is a question of law, even though the Supreme Court says there might be a factual dispute in saying "what were the circumstances surrounding the interrogation." But, the second part of the inquiry, i.e., "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave" should never be left to a jury to decide. See footnote 13 in Thompson v. Keohane, which states: Judges alone make "in custody" assessments for Miranda purposes, and they do so with a view to identifying recurrent patterns, and advancing uniform outcomes. If they cannot supply "a definite rule," they nonetheless can reduce the area of uncertainty." 516 U.S. at 113.

My hunch is the juury won't care about the technical argument if they think the dude is guilty.

John, sorry about the name misspelling... In trying to give your excellent book a plug I goofed up your name... I've sent you an email giving you some more details. Martin, thanks for the info. Alex, I tend to agree with you but I want to make sure that I don't have any problems on appeal re the jury charge. Thanks, folks!

That's ok, it happens all the time.