“Anything you say can and will be used against you in a court of law.” That’s anything you say to anyone ever - your best friend, the guy at the pub, that anonymous post you put on Reddit - anything. Not just to the police. Cops will investigate you, ask friends, family, coworkers, people you’ve encountered, search your social media, looking for confessions, clues, and inconsistencies. You brought up the police recording people so I stated the one-party consent rule for Colorado.
Yes, police can lie to you, it doesn’t fall under coercion. They can tell you they have evidence against you even if they don’t. They can tell you someone else gave up information on you so you might as well confess even if that’s not true. They can approach you pretending to be friendly or a potential business or dating partner when they’re really undercover and want information from you.
The Fifth Amendment means you don’t have to talk if you don’t want to and as the defendant you can’t be compelled to testify at trial if you don’t want to. You have the right to remain silent, but if you do speak - to anyone, even if they lie to you - it can be used against you.
Yes, that's the Miranda ruling. And many a statement has been thrown out of court
because the defendant was not apprised of their rights. They typically are read out, at the arrest.
But pre-arrest? One still has rights. What you're basically saying is that it will be LE officers who testify to what they heard Barry say. Presumably, that's what's in the AA
And the defense is already gearing up for a "cops had it in for Barry" defense, and if there's no one else who heard Barry say any of those things, I wonder how the jury will view it.
As to whether it is considered coercion if police lie, I believe court judgments have differed. I am not nearly as confident as you are that lying police have been considered good witnesses at trial.
If they didn't Mirandize Barry (and they wouldn't have, as he was not arrested), I simply hope that they indicated the purpose of the investigation (as the Supreme Court of the US has ruled necessary in cases of LE testifying using words spoken as confession
before the advisement of rights).
Check out the Miranda case - it still stands. From Wikipedia:
//Thus, if law enforcement officials decline to offer a
Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained,
but may not use that person's statements as evidence against them in a criminal trial.//
The number of statements thrown out of court on this basis is not insignificant. All of the statements can be used in the AA - but just as the Judge stated, some of the things in the AA will not be admissible.
And I wonder why. Did they Mirandize him? If not, then they can't use his answers at trial. If they did, then Barry is much more arrogant and/or stupid than I realized.
Again, a brief summary of Wikipedia (if they didn't Mirandize him):
//Assuming that a Miranda violation occurred—the six factors are present and no exception applies—the statement will be subject to suppression under the Miranda exclusionary rule.
[Note 15] That is, if the defendant objects or files a motion to suppress, the exclusionary rule would prohibit the prosecution from offering the statement as proof of guilt. However, the statement can be used to impeach the defendant's testimony.
[Note 16] Further, the
fruit of the poisonous tree doctrine does not apply to Miranda violations.
[Note 17] Therefore, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play, and derivative evidence would be fully admissible. For example, suppose the police continue with a custodial interrogation after the suspect has asserted his right to silence. During his post-assertion statement the suspect tells the police the location of the gun he used in the murder. Using this information the police find the gun. Forensic testing identifies the gun as the murder weapon, and fingerprints lifted from the gun match the suspect's. The contents of the Miranda-defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence could be used as evidence at trial.//
I think we may see some motions of this type, in this situation. Unless of course, he was read his rights (which should have given him paused and made him realize he was...in formal custody/under arrest; should have caused him to bring in a lawyer!)...
