Bryant case could hinge on recording Lakers star wasn't read his rights before conversation

USA Today ^ | 03/09/2004 | Tom Kenworthy

[Therapist]

DENVER -- Shortly after midnight July 2, two detectives with the Eagle County Sheriff's Department arrived at the Colorado mountain resort where basketball star Kobe Bryant was staying to recuperate from knee surgery.

Six other officers were already at the Lodge and Spa at Cordillera, which bills itself as ''one of the most luxurious retreats in the world.'' They were keeping an eye on the Los Angeles Lakers guard. He was suspected of raping a 19-year-old concierge at the resort the night of June 30.

Detectives Doug Winters and Daniel Loya were sitting in a van in the lodge's parking lot. They were startled when Bryant, on crutches, approached them. ''What's going on fellas?'' Bryant asked, according to Winters' testimony at a pretrial hearing in February.

Bryant then talked with the detectives for about 75 minutes. He wasn't read the Miranda warning that he had a right to remain silent and to have a lawyer present during questioning. And he didn't know Loya had a tape recorder in his pocket and was taping the conversation that began in the parking lot and continued in Bryant's room.

What Bryant told the detectives is unknown to the public and the media. But that conversation is part of the fierce battle between prosecutors and defense lawyers over what evidence can be used during Bryant's trial on a charge of felony sexual assault. If convicted, he faces a possible maximum sentence of life in prison.

[Therapist]

Do you think the tape is in or out?

[verity]

In other words, which shall prevail: law or justice?

[harpu]

Until the party is declared a suspect, all conversations are considered 'fact finding' vs 'evidence gathering' and, as such, are not subject to Miranda rights.

If the party being questioned fails to ask if I am a suspect, then all questioning is typically considered 'fact facting'.

[Carolinamom]

Does that state have a law about both parties to a conversation knowing that it is being recorded?

[harpu]

What are the Miranda rights and who's Miranda?

Answer: Ernesto Miranda was a man who lived in Arizona and was convicted of raping a woman in the early 1960s. The conviction was based, in part, on Miranda's confession of the crime to the police. His attorneys appealed the conviction, arguing that Miranda was not told he had the right not to answer the police officers' questions.

The United States Supreme Court agreed and said that police officers must tell suspects in custody of their rights. Whenever a person suspected of a crime is in police custody or his freedom has been 'significantly deprived' by the police, the officer must tell the suspect he has the following rights:

1) You have the right to remain silent. Anything you say can, and will, be used against you in a court of law;

2) You have the right to consult with an attorney and/or to have one present when questioned by the police; and

3)If you cannot afford an attorney, one will be appointed to represent you.

These rights are now called Miranda rights because the requirement to read them to suspects is the result of the Supreme Court's decision in Miranda v. Arizona.

Ernesto Miranda was retried after his conviction was overturned by the Supreme Court. He was convicted based on other evidence and served several years in prison. After his release from prison, he made money by selling Miranda rights cards with his signature on them. He died in 1976 after being stabbed in a bar fight. The man suspected of killing him invoked his Miranda rights and refused to talk to police. He was released and never charged with Miranda's murder.

[harpu]

Colo. Rev. Stat. § 18-9-303: Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. Recording of a communication from a cordless telephone, however, is a misdemeanor. Colo. Rev. Stat. § 18-1.3-401.

Using or disclosing information obtained through illegal wiretapping is prohibited if there is reason to know the information was obtained illegally. Anyone who is not "visibly present" during a conversation who overhears or records the conversation without the consent of at least one of the parties commits a felony carrying the same punishment as a telephone interception, as does anyone who discloses the contents of such a conversation. Colo. Rev. Stat § 18-9-304.

However, nothing in these statutes "shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event." Colo. Rev. Stat. § 18-9-305.

[harpu]

So, I'm not sure!?!

[Sacajaweau]

People are questioned all the time. It doesn't make the questioning irrelevant. Once someone is arrested however, they must be read their rights. I'd say it's the equivalent of Scott Peterson speaking before the media which is being allowed to be rebroadcast for the Peterson jurors.

Kobe knew what this was about. He had the right to ask for an attorney but did not do so. You don't have to be arrested to ask for an attorney. And if he gave them the shirt with the blood on it, he "gave it to them". He could have said, "not without a warrant". He's not stupid, just did something REALLY stupid. We already know "squeeky clean" is a liar.

[boomop1]

If he goes this route it will damage him more then he is now. I feel for him, that his actions have took a toll on him, about ruined his career, but as I say, You play you must pay.

[Sacajaweau]

Looks like Justice was served.

[Carolinamom]

Thanks for the info.

Although Kobe was "visibly present" he apparently did not know or give his consent to being recorded. Is this situation one that legally falls between the cracks?

[ikka]

I hadn't heard he was on crutches before... why was he on crutches? When did he start using them?

[harpu]

BTW...Go HERE for a great little primer on what to do, and not to do if (or when) you get involved with the police.

[harpu]

He was going in for knee surgery the next day.

[NickRails]

The police would be "a consenting party" to the convesation, therfore recording it is legal.

The law was designed so that a private meeting, with no consenting parties (ex. Sammy the Bull and John Gotti) cannot be bugged without judicial approval.

[harpu]

To my knowledge, I don't know. But, based on Texas law, if there only two parties involved in a recorded conversation...only one party has to have knowledge. But, it becomes muddled if there are more than 2 parties (voices) in the recorded conversation.

[freedumb2003]

Is this situation one that legally falls between the cracks?

Probably not -- but it might have fallen through the cracks.

[DustyMoment]

Thanks harpu for some good information about the laws. However, it is my opinion that the reccording becomes inadmissible when it is used as prima facia evidence of a crime when that recording was not obtained with either a warrant or the suspect's prior approval.

If those 2 officers had not obtained a warrant from a judge allowing them to tape the conversation without Bryant's knowledge, I don't think it can be used as evidence in the trial. And, since Bryant wasn't Mirandized and didn't consent to a recorded interview, I just don't believe that the tape can be used as evidence.

IMO, the judge has to suppress it.

[harpu]

Personally, because the defense is arguing that 'it takes two to tango', they should cut off only half of his assault weapon and let bygones be bygones.

[Sacajaweau]

What he said to the police must be conflicting evidence of something he said later on, otherwise it would have be irrelevant. Kinda like what he told the Lakers "Hey fellas, it's nothing" and then went on National TV and said his "Well, I did commit adultry", and then showed them the purchase order from Tiffany's with the 4 Mill total.