Loose Lips Convict or who can you trust?
Posted: Tue Jan 29, 2002 8:16 pm
We have discussed in this forum and in other forums the necessity of not making statements without the presence or consent of a lawyer you employ.
You may think that you know the law and that privileged communication with a health care professional is all right because such communication is not admissible. Think again.
In a Supreme Judicial Court Decision (Massachusetts) that just came down, a convicted masked and armed robber, appealed his conviction on grounds that his confession should have been suppressed.
“The defendant appeals his conviction of armed robbery while masked, contending that his communications with psychiatric nurse were wrongfully disclosed to the police and that his subsequent arrest and confession to the police were the fruit of that unlawful disclosure.
He also contends that his conviction should have been suppressed as involuntary> The court goes on to say, “We granted the application for direct appellate review”.
The court considered the defendant’s argument that the wrongful disclosure of confidential communications by the nurse should be grounds to suppress his subsequent confession. He contends that the nurse’s revelations to a police officer concerning both the gun and the bank robbery were prohibited by G.L. c. 233 section 20B as the circumstances surrounding these disclosures did not meet the requirements of the dangerous patient exceptions set forth in the quoted statute. He argued that his arrest on firearms charges and the interrogation about the robbery were the fruit of those wrongful disclosures such that the confession should have been suppressed as the fruit of the poisonous tree. On this point the court assumed that at least some portions of the disclosures were in violation of the nurse’s obligation to keep the patient information confidential, but the court did not agree that any such violation would require suppression of the defendant’ confession.
The court further said that a fundamental flaw in the defendant’s fruit of the poisonous tree analysis is that, whatever was wrongful in (nurses) disclosures, the disclosures were made by her own initiative. The record was devoid of anything to suggest that the police did anything to solicit, provoke, or tempt (the nurse) into making the disclosures, and this devoid of anything suggestive or police misconduct.. Marybeth Hebert (the police officer) came to the scene to assist ambulance personnel with a reported medical emergency unrelated to any criminal activity. The nurse and the ambulance attendant offered statements to the police concerning criminal activity. “A private party may have breached some obligation of confidential information in volunteering information to the police does not require the police to ignore that information”.
The defendant failed to convince the court that a private party’s breach of some obligation unconnected with any police misconduct, can serve to launch a fruit of the poisonous tree analysis. The target of the exclusionary rule is “official misconduct” and the rule is not intended to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals”.
“Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State Officials have instigated the search”.
The court went on to elaborate again on the facts of the case and the rule.
The defendant contended that his distraught emotional state , combined with the officer’s recommendations that he be forthright and clear a slate rendered his confession involuntary.
The court countered and said that while the defendant was still upset when he spoke to the officers, he was coherent, lucid, and articulate. “ He did not appear to be under the influence of alcohol or drugs. As for another officer’s recommendation (made some two hours earlier, well before interrogating officers’ reiterating Miranda warnings) that the defendant be ‘forthright’ and ‘clear a slate’, we see no meaningful distinction between that recommendation and the kind of remarks that we have found unobjectionable in other cases…The recommendation at issue here was no more than a general admonition that the defendant tell the truth, and was devoid of any implication that doing so would result in more lenient treatment. As such the officers’ remark did not prevent the Commonwealth from satisfying the burden of voluntariness beyond a reasonable doubt”.
The case is Commonwealth v. Brandwein (Docket No. SJC-08428)
I think that this case would alert the reader not to count on perceived rules concerning confidential information to fiduciaries and professionals.
How about lawyers? (Hmmmmmm). Just kidding, but even here there is the constant threat to make lawyers disclose information on their clients. Constitution HELP!
This may have been a just result of the connviction of a person engaged in serious felonies, but it is also a warning to MA's, that in the process of defending yourself in a self-defense scenario, we do go through the mental processes which may induce us to be vulnerable to suggestions by investigator's and LEO's doing their jobs.
This phase has been much discussed in Van Canna, sensei and Bill Glasheen, sensei's forums for some time.
Your verbal defense as in your martial art defense, in a real situation, is speculative.
In verbal "open the mind and shut the mouth"
Alan K
------------------
"The Goddess of Justice is Blind"
You may think that you know the law and that privileged communication with a health care professional is all right because such communication is not admissible. Think again.
In a Supreme Judicial Court Decision (Massachusetts) that just came down, a convicted masked and armed robber, appealed his conviction on grounds that his confession should have been suppressed.
“The defendant appeals his conviction of armed robbery while masked, contending that his communications with psychiatric nurse were wrongfully disclosed to the police and that his subsequent arrest and confession to the police were the fruit of that unlawful disclosure.
He also contends that his conviction should have been suppressed as involuntary> The court goes on to say, “We granted the application for direct appellate review”.
The court considered the defendant’s argument that the wrongful disclosure of confidential communications by the nurse should be grounds to suppress his subsequent confession. He contends that the nurse’s revelations to a police officer concerning both the gun and the bank robbery were prohibited by G.L. c. 233 section 20B as the circumstances surrounding these disclosures did not meet the requirements of the dangerous patient exceptions set forth in the quoted statute. He argued that his arrest on firearms charges and the interrogation about the robbery were the fruit of those wrongful disclosures such that the confession should have been suppressed as the fruit of the poisonous tree. On this point the court assumed that at least some portions of the disclosures were in violation of the nurse’s obligation to keep the patient information confidential, but the court did not agree that any such violation would require suppression of the defendant’ confession.
The court further said that a fundamental flaw in the defendant’s fruit of the poisonous tree analysis is that, whatever was wrongful in (nurses) disclosures, the disclosures were made by her own initiative. The record was devoid of anything to suggest that the police did anything to solicit, provoke, or tempt (the nurse) into making the disclosures, and this devoid of anything suggestive or police misconduct.. Marybeth Hebert (the police officer) came to the scene to assist ambulance personnel with a reported medical emergency unrelated to any criminal activity. The nurse and the ambulance attendant offered statements to the police concerning criminal activity. “A private party may have breached some obligation of confidential information in volunteering information to the police does not require the police to ignore that information”.
The defendant failed to convince the court that a private party’s breach of some obligation unconnected with any police misconduct, can serve to launch a fruit of the poisonous tree analysis. The target of the exclusionary rule is “official misconduct” and the rule is not intended to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals”.
“Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State Officials have instigated the search”.
The court went on to elaborate again on the facts of the case and the rule.
The defendant contended that his distraught emotional state , combined with the officer’s recommendations that he be forthright and clear a slate rendered his confession involuntary.
The court countered and said that while the defendant was still upset when he spoke to the officers, he was coherent, lucid, and articulate. “ He did not appear to be under the influence of alcohol or drugs. As for another officer’s recommendation (made some two hours earlier, well before interrogating officers’ reiterating Miranda warnings) that the defendant be ‘forthright’ and ‘clear a slate’, we see no meaningful distinction between that recommendation and the kind of remarks that we have found unobjectionable in other cases…The recommendation at issue here was no more than a general admonition that the defendant tell the truth, and was devoid of any implication that doing so would result in more lenient treatment. As such the officers’ remark did not prevent the Commonwealth from satisfying the burden of voluntariness beyond a reasonable doubt”.
The case is Commonwealth v. Brandwein (Docket No. SJC-08428)
I think that this case would alert the reader not to count on perceived rules concerning confidential information to fiduciaries and professionals.
How about lawyers? (Hmmmmmm). Just kidding, but even here there is the constant threat to make lawyers disclose information on their clients. Constitution HELP!
This may have been a just result of the connviction of a person engaged in serious felonies, but it is also a warning to MA's, that in the process of defending yourself in a self-defense scenario, we do go through the mental processes which may induce us to be vulnerable to suggestions by investigator's and LEO's doing their jobs.
This phase has been much discussed in Van Canna, sensei and Bill Glasheen, sensei's forums for some time.
Your verbal defense as in your martial art defense, in a real situation, is speculative.
In verbal "open the mind and shut the mouth"
Alan K
------------------
"The Goddess of Justice is Blind"