I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1. The first issue was brought to our attention by Naomi, who writes:

In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?

So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside!

I. The “Functional Equivalent of Interrogation”

So, is what Beckett and Castle do in the interview room okay? Well… kind of. Yes and no. “No” in the sense that it’s almost certainly a violation of police procedure. When the suspect demands his lawyer, the interrogation is supposed to stop. And according to the Supreme Court, “interrogation” includes “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response”, i.e., a course of conduct which “functional equivalent” of interrogation. Rhode Island v. Innis, 446 U.S. 291 (1980). It’s worth pointing out that the dissent adopted a slightly different formulation, i.e., an “interrogation” occurs “whenever police conduct is intended or likely to produce a response from a suspect in custody.” Exactly what difference this makes is not entirely clear, because the majority opinion found that there was no “interrogation” in the case while the dissent, using an only slightly broader definition, would have found that there was an “interrogation.” Regardless, the state of the law is that there is an objective standard in play. If the police engage in a course of conduct which a reasonable person should have known was likely to elicit incriminating information, it’s an interrogation.

Whether or not what Beckett and Castle did constitutes an “interrogation” is thus subject to some interpretation. On one hand, they clearly wanted the guy to talk, and they engaged in conduct which they hoped would make him talk. On the other hand, the guy said that he wasn’t going to say a word until his lawyer arrived, so counsel for the defense would probably argue that regardless of Beckett and Castle’s intent—remember, the standard is an objective standard—there was no reasonable likelihood that he would talk. Of course, the fact that he did seems to give the lie to that argument. But it turns out that this doesn’t really matter.

The “Yes” part of the question is that no actual violation of anyone’s constitutional rights occurred. Why? Because they wound up moving on to another suspect and not charging the guy with anything. We talked about this in a slightly different context when discussing Batman: Noel. Basically, one’s constitutional rights against self incrimination have not been violated unless and until the information is used as the basis for criminal charges. Because they let the guy go, the courts would view this as a “no harm, no foul” situation.

So Beckett and Castle really shouldn’t have done this—and Castle almost certainly counts as a state actor by this late stage in the game—but they’d get away with it this time. But Gates would likely be pissed if she’d found out, because there was no guarantee that this wasn’t their guy, in which case they’d have a potentially huge problem on their hands. This is why this sort of behavior is likely to be against regulations, even if it does sometimes work out in the end.

II. Criminal Sanctions for Environmental Violations

Also, and very briefly, can anyone go to jail for violating EPA regulations? Beckett suggests that the above suspect may have been motivated by a desire to stay out of jail. Turns out that yes, there are criminal sanctions associated with certain environmental regulations. Exactly what the guy was doing and the attendant facts which might move this from a civil to a criminal prosecution aren’t spelled out, but the EPA reports that it charged 249 defendants in 2011. Or, more precisely, it brought its cases to the relevant U.S. Attorney’s Office, which brought charges on the EPA’s behalf. The EPA’s own website says that the Criminal Enforcement Division “assist[s] in the prosecution of criminal conduct that threatens people’s health and the environment.” Simply put,the EPA may investigate environmental violations, but it’s Justice that brings all federal criminal prosecutions (edit: as pointed out in the comments, criminal cases under the UCMJ are also federal cases, and they’re handled by the military). In this way the EPA is similar to the SEC or, heck, to Beckett herself: it may do the legwork of investigating the case and identifying a suspect, but when it comes time to bring criminal charges, the case is turned over to the prosecutor, who takes it from there.

That’s actually a bit of a problem. Things moved way too quickly in the episode. The EPA was only notified about the problems a day or two before the guy plead guilty. This is a process that’s likely to take months. The EPA will need to be convinced that there’s a problem, and that it’s worth trying for criminal sanctions rather than their administrative procedures. Then the EPA would need to convince the U.S. Attorney for the District of New Jersey to take the case. It’s just not possible for all of that to occur in the 24-48 hours that the episode suggests it did. But we’re willing to chalk that one up to artistic license, as TV shows don’t really lend themselves to checking back in next season, “Oh hey, remember that guy we thought was the murderer for about ten minutes? He entered a plea last week.” Better, dramatically, to wrap it all up in a single episode.

I’ll continue posting as I move through the series. Hoping to get current in the next week or so.