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

Author:Rodriguez, Joshua I.
Position:II. Conflict over the Proper Application of Missouri v. Seibert C. Criteria Used by Circuit Courts to Evaluate Justice Kennedy's Factors through Conclusion, with footnotes, p. 1118-1145
  1. Pre-Miranda Questioning and Statements

    Typically, courts first inquire into the length and completeness of the pre-Miranda questioning (173) and statements. (174) To undermine the Miranda warning, the initial interaction between a suspect and the police must constitute a custodial interrogation, (175) which typically requires Miranda warnings to be administered before the interrogation may begin. (176) Some courts, however, have found that police did not execute a question-first procedure because initial Miranda warnings were not required due to an exception to the Miranda requirement with respect to the circumstances surrounding the questioning. (177) Other courts find initial Miranda warnings unnecessary due to the type of questioning during the pre-Miranda stage. (178)

    With respect to length of pre-Miranda questioning, some courts found it relevant to the pre-Miranda stage of the question-first inquiry whether pre-Miranda questioning was "short and cursory," (179) or consisted of "one" (180) or a similarly "limited number of questions." (181) With respect to the length of pre-Miranda statements, courts also round it relevant to the question-first inquiry whether a brief statement could overlap significantly with a detailed post-Miranda statement (182) or needed to be systematic and exhaustive to constitute a deliberate question-first procedure. (183)

    Many courts have justified the failure to provide Miranda warnings during the initial stage of questioning as exceptions to the Miranda requirement. (184) Other courts have voiced criticism of the use of exceptions. In United States v. Woodruff, the court found that the interrogating officer should have known his question was reasonably likely to elicit an incriminating response. (185) In contrast, in United States v. Hernandez, the court asked whether it was "a foregone conclusion" that such a question would elicit information indicating criminal activity. (186)

  2. Relationship Between Pre-Miranda and Post-Miranda Statements

    Circuit courts take slightly different approaches to the relationship between pre- and post-Miranda statements. Some courts focus exclusively on how related pre- and post-Miranda statements are to each other. (187) Other courts require that pre-Miranda and post-Miranda statements overlap. (188) This factor is significant because "[r]eference to the prewarning statement [is] an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating." (189)

    Courts have justified their treatment of the relationship between pre-Miranda questioning and statements in two main ways: either the statements must overlap or the statements must be related. For example, in United States v. Torres-Lona, the Eighth Circuit round no overlap where the post-Miranda statement was not identical to the pre-Miranda statement. (190) Analogously, in Woodruff, the court round little overlap due to the different content of the two stages of questioning. (191)

    In contrast, in Edwards the D.C. Court of Appeals criticized the focus on overlap by courts. Specifically, the court argued that different pre- and post-Miranda statements that addressed the same crime were indicative of a deliberate question-first procedure because "limiting Seibert to full confessions would encourage police to withhold Miranda warnings at the beginning of interrogations and bring the suspect to the brink of confessing." (192) The relationship between pre-Miranda and post-Miranda statements influences how police may reference a pre-Miranda statement during a subsequent post-Miranda interrogation. (193) For example, a police officer may learn new information that allows her to ask informed, open-ended questions.

  3. Referencing Pre-Miranda statements in Post-Miranda Interrogation

    Most courts evaluate whether post-Miranda questioning referenced pre-Miranda statements (194) and ask whether the police confronted the suspect with her prior statements. (195) The Eleventh Circuit, however, did hot include this factor in its question-first analysis. (196) The Eleventh Circuit's omission is significant given the extent of treatment that Justice Kennedy's concurrence devoted to it. (197) Courts justify the reference to a pre-Miranda statement during a subsequent post-Miranda interrogation factor as part of their application of either the plurality approach or Justice Kennedy's concurrence. Courts justify omitting this factor by taking into account other factors, such as the experience of the officer. (198)

  4. Curative Measures

    Circuit courts treat curative measures similarly, though there are several slight variations. Some circuit courts factor curative measures including continuity in interrogating officers and temporal and spatial proximity between interrogations into evaluating deliberateness. (199) For example, courts that apply the totality approach to evaluate whether a question-first procedure was deliberate incorporate those three considerations into their initial analysis. (200) The Second Circuit justifies applying the curative factors to a deliberateness analysis and curing a finding of deliberateness because the curative factors illustrate evidence of a deliberate question-first procedure. (201) Other courts ask whether these factors dissipated the impact of a prior deliberate question-first procedure. (202) Some courts follow additional factors that Justice Kennedy suggests in his concurrence, including asking whether police advised the suspect that his prior pre-Miranda statements are inadmissible. (203)

  5. Burden of Proof

    Although Justice Kennedy's four factors are the key to the substantive question of law, the procedural issue of burden of proof on this issue was not addressed by Justice Kennedy's concurrence and lower courts have properly treated that as an issue of first impression. (204) Specifically, the issue of whether the suspect or law enforcement bears the burden of proof of deliberateness, and the level of that burden, has been debated by both commentators and circuit courts since Seibert was decided in 2004. (205) Multiple circuit courts merely "eyeball" the evidence with respect to a potential question-first tactic, (206) while other circuits place the burden of proof on the defendant. (207) Most circuits and commentators, however, believe that the prosecution should bear the burden of proof. (208) Additionally, among those courts in favor of requiring a burden of proof, at least three different standards of proof have been applied. (209)

    Courts and commentators have various justifications regarding their treatment of the burden of proof with respect to the deliberate question-first procedure. In the Eighth Circuit and the D.C. Court of Appeals, the courts argued that "placing that burden on the prosecution is consistent with prior Supreme Court decisions that require the government to prove the admissibility of a confession before it may come into evidence." (210) The Eighth Circuit has raised the criticism that "the law generally frowns on requiring a party to prove a negative." (211) One commentator, Daniel Nooter, disagrees with this view, however, arguing that "[j]ust as a criminal defendant does not affirmatively have the burden of disproving that an officer reasonably acted to uphold public safety, the defendant should not have the burden of disproving the exception Seibert recognizes for non-deliberate two-step interrogation." (212)

    Moreover, Nooter criticizes courts that merely "eyeball" question-first procedures, reasoning that a "clear delineation of evidentiary burdens is required to ensure the consistent application of Seibert across jurisdictions." (213) Additionally, Justice O'Connor's dissent in Seibert criticizes courts that choose to eyeball the evidence, rather than assigning a burden of proof. (214) In particular, Justice O'Connor argues, "there is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive." (215) Regarding the applicable standard of proof, a commentator argues that "[a] clear-and-convincing standard would not only prevent Seibert from being a dead-letter protection for defendants, but would provide the incentive for officers to read Miranda as soon as a suspect's custodial status is clear." (216)


    Part III proposes a three-part resolution to the problem of the circuit courts' conflicting applications of the Seibert opinions. First, this Part proposes the adoption of the test used by the Second Circuit, (217) Third Circuit, (218) Fourth Circuit, (219) Fifth Circuit, (220) Eighth Circuit, (221) and Eleventh Circuit, (222) rather than the other circuits' use of the plurality test or the wasteful dual application of both tests. (223) Next, this Part proposes the adoption of the Fifth and Eleventh Circuits' strict adherence approach, (224) which requires that courts adhere solely to the factors applied in Justice Kennedy's analysis, (225) as opposed to strict adherence to the plurality's factors or an ad hoc inquiry into the totality of the evidence. (226) Third, this Part proposes several clarifications to the factors used by the subset of circuit courts that use Justice Kennedy's test.

    1. In Support of an Intent-Based Approach

      Justice Kennedy's intent-based approach, followed by the Second Circuit, (227) Third Circuit, (228) Fourth Circuit, (229) Fifth Circuit, (230) Eighth Circuit, (231) and Eleventh Circuit, (232) should be followed for several reasons. First, Justice Kennedy's approach is justified by question-first precedent established by the Supreme Court in Elstad. In Elstad, the Court stated that

      It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's...

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