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TESA Ea Wil Thy i a RL SENSITIVE Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 eee 7-3.1 In General |Prior to custodial interrogation, an accused is entitled to be warned of the right to remain silent and the right to an attorney at this critical stage of the criminal prosecution. Failure to warn renders the product of interrogation (confession or admission) subject to exclusion. Moreover, the government bears the burden of proving that the accused understood and voluntarily waived those rights prior to custodial interrogation. | **EfEDte: 07/26/1999 MCRT#: 915 Div: D9 Cav: SecCls: 7-3.2 Policy (See 7-4.1 (11) (b) and MIOG, Part 1, 173-3 (1).) (1) FBI policy requires that a person must be advised of the names and official sdentities of the interviewing Agents, the nature of the inquiry, and must be warned of his/her rights as set forth in Section 7-3.3 before such person is interviewed if the person: (a) Has been arrested and is in federal or state custody, or custody of a foreign government 3 (b) Is significantly restricted in his/her freedom of action to a degree normally associated with a formal arrest; (c) Whether in custody or not, has been previously arrested or otherwise formally charged and prosecution is pending, when the subject matter of the interview concerns the pending charge, |or alclosely related offense.| (See| (3) and] (4).) (2) The above policy requires compliance where the freedom of action of the person questioned is "significantly restricted." This phrase is to be interpreted as meaning something more that a brief, temporary investigative detention. It is intended to apply in situations where no formal arrest has occurred, but the person 18 restrained in the freedom of movement to the degree associated with formal arrest. This circumstance can arise even in the absence of a formal arrest when, judging the totality of circumstances, a reasonable person in the position of the interviewee would believe that custody exists. For example, detention at gunpoint, use of restraining devices or movement of an interviewee without consent are factors likely to create the reasonable perception that custody has occurred, thus requiring the warning and waiver. However, Agents can lessen the impact of these factors and dispel doubt that might exist in the interviewee's mind regarding his or her custodial status by telling the person that he/she is not under arrest. (See (4).) SENSITIVE Printed: 08/20/2003 06:43:34 3 Page ITT Tt eee