Explain when an interview becomes an interrogation and how the interviewer/interrogator would proceed differently based on this transition.

“Interviewing is the first stage interaction. The person is not even definable as a suspect at this point. Suspects often report criminal events while posing as witnesses or even victims of the crime. The investigator that is conducting the interview from such a person may become suspicious that they are not being truthful; until those suspicions are confirmed by evidence that meets the test of forming reasonable grounds for belief, the investigator may continue to talk to this possible suspect without providing cautions. There is opportunity at that point to gather the poser’s version of events, including any untrue statements that may afford an opportunity to later investigate and demonstrate a possible fabrication, which is by itself a criminal offense. The transition point for an investigator to move from interviewing a witness or victim to detaining and questioning the person as a possible suspect should occur when real evidence is discovered giving the investigator reasonable grounds to suspect that the person is involved in the event. Discovering real evidence and gaining “reasonable grounds to suspect” creates an obligation for the investigator to stop interviewing the person who then becomes a suspect. At this point, the person is a suspect a should be detained for the suspected offense and provided the appropriate statement caution before proceeding with the questioning of the suspect.” (R. Gehl 2017)

In reference to the scenario described above, can a suspect “un-invoke” Miranda? Can a conversation that is not an interrogation (excited utterance) lead to a confession?

An individual can change their mind at any time and invoke their Miranda rights, even if they have already spoken to the police. The key to the issue in the scenario is the suspect must verbally state or place in writing that they are withdrawing their right to have counsel present. If this is not stated and the suspect states “I never really looked like that chick anyway” the police will use that as an admission of some accountability in the current offense in which the suspect has been arrested. An attorney can file a motion to suppress said confession.

“Federal and state courts have reached different conclusions on the admissibility of excited utterances under Crawford based on their consideration of various factors and the importance placed upon each one. Several courts have concluded that excited utterances, even when made to a police officer in response to some degree of questioning, are not testimonial. Other courts have taken the opposite viewpoint, reasoning that an excited utterance may be testimonial if the questioning by law enforcement officers is for investigatory and fact-gathering purposes in anticipation of a future prosecution.” (Brandl 2018)