Interrogation first, Miranda warnings afterward: a critical analysis of the Supreme Court's approach to delayed Miranda warnings.

• Author: Rodriguez, Joshua I.
• Position: Introduction through II. Conflict over the Proper Application of Missouri v. Seibert B. Three Circuit Court Approaches to Applying Justice Kennedy's Concurrence, p. 1091-1117

Introduction I. Understanding the Origins of Question-First Jurisprudence A. The Right Against Self-Incrimination and Miranda v. Arizona B. Oregon v. Elstad C. Missouri v. Seibert 1. Description of Question-First Technique 2. Seibert Question-First Analysis II. Conflict Over the Proper Application of Missouri v. Seibert A. Plurality v. Intent 1. Circuits that Apply the Plurality Approach to Evaluate Question-First Procedures 2. Circuits that Solely Apply Justice Kennedy's Deliberateness Test to the Question-First Procedure Inquiry 3. Criticism and Justification of the Plurality Approach Versus Justice Kennedy's Approach B. Three Circuit Court Approaches to Applying Justice Kennedy's Concurrence C. Criteria Used by Circuit Courts to Evaluate Justice Kennedy's Factors and Other Considerations Associated with the Question-First Inquiry 1. Pre-Miranda Questioning and Statements 2. Relationship Between Pre-Miranda and Post-Miranda Statements 3. Referencing Pre-Miranda statements in Post-Miranda Interrogation 4. Curative Measures 5. Burden of Proof III. Resolution: A Question-First Analysis that Accurately Applies Missouri v. Seibert and the Policies and Precedent of Miranda A. In Support of an Intent-Based Approach B. Courts Should Strictly Adhere to the Factors Set Forth by Justice Kennedy C. Proper Application of Justice Kennedy's Concurrence and Related Question--First Considerations 1. Pre-Miranda Violation 2. Completeness of Initial Pre-Miranda Warning and Statements 3. Relationship Between Pre-Miranda and Post-Miranda Statements 4. Referencing Pre-Miranda Statements in Post-Miranda Interrogation 5. Curative Measures 6. Burden of Proof 7. Application of Holistic Question-First Approach Conclusion The two-step interrogation tactic at issue in Missouri v. Seibert exemplifies gaming by observing a rule while undermining its purpose. (1)

The Seibert opinions have sown confusion in federal and state courts, which have attempted to divine the governing standard that applies in successive interrogation cases involving warned and unwarned confessions. (2)

INTRODUCTION

On August 6, 2010, Russell Hart was arrested in Nebraska on a parole violation originating in California. (3) At the local jail, a police officer asked Hart what the underlying charge was with respect to the parole violation. (4) Hart stated that he had failed to register as a sex offender in California. (5) A deputy sheriff then asked Hart how long he had lived in Nebraska. (6) When Hart responded that he had lived in Nebraska for approximately one month, another officer asked Hart if he had registered in Nebraska. (7) Hart responded that he had not registered. (8) At this point, the questioning, which had included no mention of Miranda warnings, paused while the police left to discuss Hart's statement regarding his failure to register. (9) Believing Hart had indicated an "Adam Walsh" violation under 42 U.S.C. [section][section] 16901-16991 by failing to register, the police quickly confirmed their suspicion with the Marshall's Office in Lincoln, Nebraska, and returned to the interrogation room. (10)

Thirty minutes after questioning Hart about his failure to register in Nebraska, the same group of police officers resumed their interrogation. (11) First, the police officers asked Hart if he would answer a few questions, which he agreed to do, and then presented Hart with a Miranda waiver, which he signed. (12) Next, the police asked Hart how long he had lived in Nebraska and if he had registered as a sex offender in Nebraska. (13) Hart repeated his earlier statement, stating he had lived in Nebraska for about a month and had not registered as a sex offender. (14) The District Court denied Hart's motion to suppress his post-Miranda statements, reasoning that the police did not use a question-first procedure calculated to elicit a post-Miranda confession from him. (15)

The admissibility of post-Miranda statements in question-first cases is governed by the United States Supreme Court's decision in Missouri v. Seibert. (16) This Note considers the treatment of mid-interrogation Miranda warning cases by the Federal Courts of Appeals in the wake of the United States Supreme Court's plurality opinion in Seibert (17) and suggests how greater consistency, efficiency, and fidelity to the law might be achieved in future cases. The Court described the question-first procedure as a "technique of withholding warnings until after interrogation succeeds in eliciting a confession," which causes the subsequent Miranda "warnings [to] be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." (18) When the warnings following an earlier unwarned statement are held ineffective, a statement or confession offered after that warning is inadmissible. (19) In Seibert, the Court issued a plurality opinion to which four Justices joined. Justice Kennedy's concurrence provided the deciding fifth vote. (20) The five Justices disagreed, however, as to how effectiveness should be determined. (21) In Seibert, the plurality uses a multifactor test to determine whether a suspect's apprehension of the Miranda warning was rendered ineffective by the interrogator's use of a question-first procedure. (22) In contrast, Justice Kennedy articulates a "narrower test" that applies only to deliberate question-first procedures. (23) Further, while the Seibert plurality places the burden of showing admissibility on the prosecution, (24) Justice Kennedy's opinion is silent on the matter. (25) Thus circuit courts in the wake of Seibert have disagreed as to whether the intent of the police responsible for the question-first procedure or the impact on the defendant of a police question-first procedure controls. (26)

The conflict among circuit courts in question-first cases stems from various disagreements. Circuits disagree as to whether the plurality or Justice Kennedy's concurrence provides the narrowest grounds of the Supreme Court's decision, and thus which opinion states the controlling rule. (27) Moreover, the choice of factors determining whether the use of the mid-interrogation warning was "deliberate" in a particular case, in addition to their proper application, has been fraught with conflict. (28) Lower courts also misconstrue the various policies underlying Miranda, such as dispelling the inherently coercive atmosphere of custodial interrogations, (29) deterring improper police conduct, and preserving the trustworthiness of confessions. (30)

This Note seeks to clarify the complexity of Seibert and explain the failure of lower courts to accurately apply its precepts. It goes on to suggest a solution to this problem that reflects the wisdom of Justice Kennedy's view.

Part I of this Note discusses the development of the Supreme Court's question-first procedure jurisprudence, including a discussion of question-first procedures generally; the development of the Miranda warning; the facts in Seibert that led to the Supreme Court's focus on the question-first procedure; and the Supreme Court's treatment of Miranda violations through question-first procedures.

Part II analyzes ten circuit courts' applications of Seibert in light of the considerations and analysis applied by Justice Kennedy in his concurrence, as well as the burden of proof required of the prosecution, if any, to show that police did not apply a deliberate two-step interrogation technique. Throughout this analysis, this Note examines the facts present in the circuit cases as they relate to those in Seibert.

Lastly, Part III argues that Justice Kennedy's approach, which is followed by the Second, Third, Fourth, Fifth, Eighth, and Eleventh Circuits, should be controlling. Second, within the set of circuits following Justice Kennedy's concurrence, this Note supports an approach followed only by the Fifth and Eleventh Circuits as particularly faithful to Justice Kennedy's concurrence, even though Justice Kennedy's concurrence does not explicitly advance any factors. (31) Third, this Note seeks to clarify the proper application of the factors to be used by lower courts to comply with Justice Kennedy's concurrence. (32) Finally, this Note attempts to bring order to the inconsistent and inefficient jurisprudence surrounding evaluations of potentially improper question-first procedures. (33) In the aftermath of Seibert, circuit courts have used widely divergent and inconsistent criteria to evaluate whether a particular question-first procedure violates Miranda. The criteria used by circuit courts often contradict the central concerns and considerations advanced by Justice Kennedy's concurrence. Moreover, the inconsistency in the circuit courts' treatment of question-first cases provides poor guidance to police and sows confusion in the lower courts. This Note...