Chapter 5 - §4. Evidence subject to exclusion under Miranda

• Jurisdiction: United States

§4. Evidence subject to exclusion under Miranda

§4.1. Exclusion of statement. Whether a statement obtained in violation of Miranda must be suppressed depends on the purpose for which it is offered.

1. Prosecution case-in-chief. A statement obtained in violation of Miranda cannot be used during the prosecution's case-in-chief. See Harris v. New York (1971) 401 U.S. 222, 224; Miranda v. Arizona (1966) 384 U.S. 436, 444; People v. Neal (2003) 31 Cal.4th 63, 85.

2. Impeachment. A statement obtained in violation of Miranda can be used for impeachment purposes if the defendant testifies inconsistently at trial or if the statement is related to or relied on by an expert, provided the trustworthiness of the statement satisfies the applicable legal standards. See Harris, 401 U.S. at 225-26; Bradford v. Davis (9th Cir.2019) 923 F.3d 599, 615; U.S. v. Rosales-Aguilar (9th Cir.2016) 818 F.3d 965, 969-70; People v. Caro (2019) 7 Cal.5th 463, 492; People v. Guerra (2006) 37 Cal.4th 1067, 1094, disapproved on other grounds, People v. Rundle (2008) 43 Cal.4th 76; People v. May (1988) 44 Cal.3d 309, 313; People v. Edwards (6th Dist.2017) 11 Cal.App.5th 759, 766. This use is also generally permissible even when the statement was obtained by an officer's intentional disregard of an invocation. See People v. Case (2018) 5 Cal.5th 1, 26; People v. Peevy (1998) 17 Cal.4th 1184, 1188; O'Neill, Expert Series: California Confessions Law §14:3 (2020-21 ed.). However, the California Supreme Court has left open the question of whether a statement obtained in violation of Miranda can be used for impeachment when the violation was the result of widespread, systematic police misconduct. See People v. Nguyen (2015) 61 Cal.4th 1015, 1076-77 (commenting that it is police misconduct to interrogate a suspect who has invoked right to counsel); see also Bradford, 923 F.3d at 620 (characterizing intentional Miranda violation as "unethical" and "strongly disapproved"); People v. Orozco (2d Dist.2019) 32 Cal.App.5th 802, 816 (finding intentional Miranda violations "deplorable"). If the prosecution introduces a statement obtained in violation of Miranda for impeachment purposes, defense counsel should ask the court to instruct the jury that the statement can be considered only to evaluate the defendant's credibility. See People v. Coffman (2004) 34 Cal.4th 1, 63; CALCRIM 356 (Miranda-Defective Statements). The court is not obliged to give such an instruction sua sponte. See Coffman, 34 Cal.4th at 63; People v. Gutierrez (2002) 28 Cal.4th 1083, 1134.

Caution

If the defendant's statement was involuntarily given, rather than simply obtained in violation of Miranda, use of the statement for impeachment purposes is prohibited. See "Evidence subject to exclusion for involuntariness," ch. 5-B, §3. A continuing and persistent refusal to stop interrogation after a defendant's repeated invocation of the right to counsel could well evolve into psychological coercion, making the resulting statement involuntary and therefore inadmissible for any purpose. See "Threat of protracted interrogation," ch. 5-B, §2.2.2(3)(a)[1].

3. Sentencing phase. A statement obtained in violation of Miranda can likely be used at a defendant's sentencing. While California courts have not directly addressed the issue, other state and federal courts have held that such statements are admissible at sentencing. See U.S. v. Nichols (4th Cir.2006) 438 F.3d 437, 438; Del Vecchio v. Illinois Dept. of Corr. (7th Cir.1994) 31 F.3d 1363, 1388.

Note

Despite the rule in other courts, the U.S. Supreme Court has held that a statement obtained from an un-Mirandized defendant and made to a court-ordered psychiatrist could not be used against the defendant at his sentencing for a capital murder conviction. See Estelle v. Smith (1981) 451 U.S. 454, 469. But that decision has consistently been construed narrowly, applying specifically to the facts at issue in that case. See Penry v. Johnson (2001) 532 U.S. 782, 795; Buchanan v. Kentucky (1987) 483 U.S. 402, 422; Baumann v.

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