Criminal Procedure - Outline Part 21

Oregon v. Elstad (1985)

• Second Confession as Fruit of the First: applicable when there are two successive confessions (by the same suspect) creating the issue of whether the second confession is tainted by the earlier confession that is not the fruit of any still-earlier illegality, but that is itself an illegally-obtained “poisonous tree.”
  • May arise where the defendant is legally arrested, is given insufficient Miranda warnings, confesses, is then given adequate Miranda warnings, and confesses again; the second confession is, if considered by itself, valid; but is it nonetheless tainted fruit of the earlier, unlawful, confession?
• Starting Premise: “A confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is ‘sufficiently an act of free will to purge the primary taint’.”
• General Outcome:
  1. the second confession will NOT be deemed tainted as long as it was “voluntarily made,” and the Court will presume that the second confession is indeed voluntary if made after warnings, even though that confession followed an earlier unwarned confession
  2. Second confession is more likely to be deemed voluntarily made if the underlying circumstances do not make the second confession a mere continuation of the first (i.e., the second is more likely to be found voluntary if the two were meaningfully separated by time, place, or interrogator, or if it was made clear to the suspect that the first, unwarned, confession would not be admissible)
  3. The second confession is less likely to be deemed tainted if the failure to warn prior to the first confession was the result of an inadvertent mistake by the police?
  4. Where the place follow an intentional “two-step” practice of eliciting an unwarned confession, then immediately giving a warning under circumstances that lead the suspect to believe that even the already-made confession can be used against him (so that the suspect sees no reason not to repeat the confession after the warning), the second confession will probably be deemed involuntary and tainted (Missouri v. Seibert)
• The police have no duty to warn a suspect of prior statement’s inadmissibility
• Test:
  1. Was suspect in police custody?
  2. Was a confession made before or after a Miranda warning was given?
  3. Was a second confession made?
  4. Was the second confession knowingly and voluntarily made? (Second confession presumed voluntary if made after Miranda warning)
     • Were the two confessions separated by:
       • Time?
       • Place?
       • Interrogator?
     • Was it made clear to the suspect that the first, unwarned, confession would not be admissible?
     • Was the failure to warn prior to first confession the result of an inadvertent mistake by police?
• Rule: A second confession is not tainted by a first, Miranda-less confession if the second confession was knowingly and voluntarily made, i.e., it would not be invalidated merely because there was a prior, illegally-obtained confession having the same substance as the second

Dickerson v. US (2000) → Congress cannot legislatively supersede a decision by the US Supreme Court that interprets and applies the Constitution

• This means that Miranda is based upon the Constitution, i.e., the Miranda principle is in some sense constitutionally-derived, not a mere pronouncement about how prosecutions ought to be carried out

Missouri v. Seibert (2004)

• Background: Police departments in years after Elstad adopted a conscious “two step” approach to interrogation, in which the police would intentionally procure an unwarned (and inadmissible) confession, give Miranda warnings, and then hope to get the suspect to give an (admissible) confirmation of what he had already confessed to
• Holding: this two-step approach will at least sometimes lead to a tainted, and inadmissible, second confession – it is inconsistent with the purpose of Miranda for a police department to maintain a policy whereby suspects subject to custodial police interrogation are initially denied their Miranda warnings, and then are subject to the same questioning for a second time
• “When Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.”
  • “It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.
  • “These circumstance [below] must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk:
    • The completeness and detail of the questions and answers in the first round of interrogation;
    • The overlapping content of the two statements;
    • The timing and setting of the first and the second round;
    • The continuity of police personnel; and
    • The degree to which the interrogator’s questions treated the second round as continuous with the first; or
    • A police strategy adapted to undermine the Miranda warnings
• Kennedy Concurrence
  • “The admissibility of postwarning statements should continue to be governed by the principles of Elstad UNLESS the deliberate two-step strategy was employed.
  • If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.
  • Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example:
    • A substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn;
    • An additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.”

Berkemer v. McCarty (1984)

• Issues:
  • Does Miranda govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic offense?
    • Rule: a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested
  • Does the roadside questioning of a motorist detained pursuant to a traffic stop constitute a custodial interrogation for the purposes of Miranda?
    • Background: Long acknowledged that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of the 4^th Amendment, even though the purpose of the stop is limited and the resulting detention is brief.”
    • Rule: circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police, and therefore, a typical traffic stop is NOT “custodial interrogation”
• Central Principle of Miranda: If the police take a suspect into custody and then ask him questions without informing him of the rights enumerated in Miranda, his responses cannot be introduced into evidence to establish his guilt (can be used to impeach witness)
• Outcome:
  • Traffic Stops – stops of motorists for minor traffic violations will normally not be “custodial”; a traffic stop is “presumptively temporary and brief,” and the motorist knows that “in the end he will likely be allowed to continue on his way”
    • Test: whether one in the motorist’s position would believe that he was or was not free to leave
  • Minor Crimes – there is no “minor crimes” exception to the Miranda requirement – if an interrogation meets all the standard requirements for Miranda warnings (especially if suspect is “in custody”), these warning must be given no matter how minor the crime, and regardless of the fact that no jail sentence may be imposed for it

“Custody” Test → “Miranda becomes applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest’.”

• Objective test from suspect’s perspective
• Based on the totality of the circumstances

In Prison but NOT in Custody?

• Maryland v. Shatzer (2010)
  • FACTS: prisoner was interrogated for a crime he was not already serving time for; prisoner requested counsel, police terminated the interrogation
  • ISSUE: Can a prisoner be said not to be in custody when he is incarcerated? Was this a break in Miranda custody?
  • HOLDING: Yes – though being in prison meets the Berkemer Test whether “there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest,” “the freedom-of-movement test only identifies a necessary and not a sufficient condition for Miranda custody.”
    • The freedom-of-movement Berkemer test is not a sufficient condition for custody because “Miranda is to be enforced ‘only in those types of situations in which the concerns that powered the decision are implicated’.”
    • The “inherently compelling pressures” of custodial interrogation end when the prisoner returns to his normal prison life

Rhode Island v. Innis (1980)

• Miranda Court Defined “Interrogation” → “by custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
• Miranda Court Concern → Miranda Court was not merely concerned with just express questioning of the suspect but rather, “the’ interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.”
  • “Interrogation,” as conceptualized in Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself.
• Rule → The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent
  • The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the officer (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
  • The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police, reflecting the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police
    • A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation
    • However, since the police cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response
      • Footnote 8: Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known their words/actions were reasonably likely to elicit an incriminating response from the suspect

• Did the suspect make statements in response to custodial police interrogation?
  • Yes? → Did police give the Miranda warnings to the suspect?
    • Yes? → Did suspect waive their Miranda rights?
  • No? → No Issue

Two Different Rights and Their Implications:

1. (The Right to Counsel) The right to have questioning cease until the suspect can consult a lawyer → police may not initiate any attempt to get a waiver for some significant period of time
2. The right to remain silent → the police MAY continue to question, or to attempt to get a waiver (with the proviso that anything the suspect says prior to making a valid waiver may not be used against him at trial)

Berghuis v. Thompkins (2010) → “Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked”

For a suspect to be deemed to have waived either Miranda right, the prosecution will have to show that the waiver was “knowing and voluntary”

• Voluntary → it was the product of a free and deliberate choice rather than intimidation, coercion, or deception
• Knowing → must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it

Waivers can be:

• Express → If a suspect signs a standard waiver form or orally, e.g., “I understand these rights but I’m willing to talk to you.”
  • Express waivers will be valid as long as there is no indication of coercion or of basic lack of understanding by the suspect
• Implied → an intent to waive can be inferred from the actions and words of the person being interrogated
  • Most common form of implied waiver comes when the suspect is read his rights, and then answers one or more questions – “a defendant’s subsequent willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver.”