Is Missouri v. Seibert practicable? Supreme Court dances the "two-step" around Miranda.

• Author: Nooter, Daniel S.

Is Miranda v. Arizona (1) merely an exercise in formalism, or does Miranda embrace a substantive commitment to constitutional rights? On June 28, 2004, the Supreme Court rendered an opinion in Missouri v. Seibert (2) rejecting Missouri's "two-step" technique for procuring confessions, while ostensibly re-affirming Miranda's vitality as a substantive rule. The Court held that police interrogators could not exploit the mere form of the Miranda warnings while intentionally depriving these warnings of their meaningful substance. Nevertheless, the practical effect that Seibert will have in the law enforcement community may be fundamentally vitiated by the opinion's failure to announce a coherent rule.

Under the interrogation protocol challenged in Seibert, Missouri police officers were instructed intentionally to avoid reading suspects their Miranda warnings prior to interrogation. (3) Rather, police were instructed to inform suspects of their constitutional rights--as required by Miranda--only after the suspect had already made an incriminating statement. Only after the statement was made would police obtain the Miranda waiver and proceed to interrogate the suspect regarding the subject of his prior, unwarned self-incriminatory statements. (4) While the pre-Miranda statement would thus be inadmissible in court, police and prosecutors would nevertheless use the subsequent, post-Miranda statement against the defendant. Although Seibert concerned the two-step procedure as applied particularly in one police department in Rolla, Missouri, trial evidence demonstrated that police departments in other regions had implemented similar procedures, and that such two-step interrogation techniques had in fact been promoted by a national police training organization. (5)

Five justices in Seibert voted to require suppression of the defendant's self-incriminatory statements, despite the fact that she had made such statements after being "Mirandized" and ostensibly waiving her rights. (6) While one commentator has described Seibert as "a rare moment of intelligibility in [the Court's recent] Fifth Amendment thicket," (7) Seibert in fact offers scant guidance to courts and practitioners attempting to apply its rule. Indeed, in light of the highly contradictory approaches taken by the Seibert plurality (8) and by Justice Kennedy, who provided the crucial fifth vote in the judgment, one may plausibly argue that Seibert offers no workable rule at all.

The dispute between Justice Kennedy and the plurality turns on whether Miranda's exclusionary rule should be considered as an "effects" test or as an "intent" test. (9) The plurality would focus on the effect of two-step interrogation, and would thus suppress downstream confessions whenever the two-step procedure is reasonably likely to undermine Miranda's ability to ensure voluntary confessions. (10) Because the plurality's concern is the confession's voluntariness, the plurality would conduct the Seibert inquiry from the perspective of "a reasonable person in the suspect's shoes." (11) Justice Kennedy, in contrast, would apply an intent-based test, focusing not on the state of mind of the suspect, but on the motives of the interrogating officer. Under Justice Kennedy's approach, suppression of post-warning statements is appropriate under Seibert only where "the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (12)

Justice Kennedy's position poses several obstacles to the distillation of a workable rule. First, his emphasis on intent rather than on voluntariness stands in direct conflict not only with the reasoning of the plurality, but also with the reasoning of the four dissenting Justices. Justice O'Connor, writing for the dissent, explicitly endorses "[t]he plurality's rejection of an intent-based test." (13) As O'Connor elaborates, "[f]reedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect's decision to speak truly was voluntary. Because voluntariness is a matter of the suspect's state of mind, we focus our analysis on the way in which suspects experience interrogation." (14) In light of the seven votes that explicitly reject Kennedy's intent-based test in favor of a voluntariness inquiry, one may well question the propriety of basing a confession's admissibility on the intent of the interrogating officers. (15)

Furthermore, even if Justice Kennedy's intent-based approach could be deemed to represent the judgment of a majority of the Court, Justice Kennedy's opinion is silent as to which party bears the burden of proving or disproving intentionality. In Seibert, a member of the Rolla, Missouri police department testified that "the strategy of withholding Miranda warnings until after interrogating and drawing out a confession" was specifically promoted within his department. (16) The plurality recognizes, however, that "the intent of the officer will rarely be as candidly admitted as it was here." (17) Does two-step interrogation raise the rebuttable presumption of an interrogator's intent to evade Miranda, or must a criminal defendant make out a prima facie case of an interrogator's intent to undermine Miranda--i.e., meet a production burden--before the burden shifts to the State? Which party, in Justice Kennedy's view, ultimately bears the burden of persuasion, and by what standard of proof? Kennedy's concurrence takes no stance on the matter.

Nevertheless, this Note will argue that Seibert requires the suppression, at a minimum, of confessions obtained through two-step interrogation with the intent of undermining the Miranda's effectiveness. Moreover, I will argue that Seibert creates a presumption, in circumstances where police employ a two-step interrogation procedure, that this procedure was implemented with such intent. Part I of this Note will present a close reading of the Seibert opinion. It will begin by situating the plurality and dissenting opinions in the context of the Court's recent decisions in Oregon v. Elstad (18) and Dickerson v. United States, (19) and will proceed to analyze--and critique--the distinct doctrinal basis for Justice Kennedy's concurrence.

Part II of this Note will concern the applicability of the Seibert opinion for practitioners. It will begin by arguing that an intent-based approach for applying Seibert is necessary to give effect to the votes of a majority of the Court, despite the Court's ostensible disfavor for an exclusionary rule based on intent. It will then address the issue of burden of proof, arguing both from jurisprudence and from public policy that the government should bear the burden of disproving intent to undermine Miranda once a defendant has offered evidence that suggests a legitimate issue of fact.

1. SEIBERT AND THE SELF INCRIMINATION CLAUSE: JURISPRUDENTIAL PERSPECTIVES

   The Fifth Amendment gives a person the right not to be "compelled in any criminal case to be a witness against himself." (20) Nevertheless, the Constitution does not prohibit a person from incriminating himself in the absence of official compulsion. The operative question for the Self Incrimination Clause, therefore, is whether a particular instance of self-incrimination is voluntary. (21)

   As a first principle, the notion is relatively straightforward that a court should inquire into a confession's voluntariness to determine whether or not it was coerced. The Supreme Court has recognized, however, that such case-by-case voluntariness inquiries are effectively impracticable in the context of custodial interrogation. (22) Acknowledging such difficulties--and furthermore, recognizing the inherently coercive character of such interrogation--the Miranda Court held that confessions obtained during custodial interrogations are presumptively involuntary. (23) Nevertheless, the Court held that this presumption may be rebutted if suspects have been adequately informed of their constitutional rights. (24) These familiar "Miranda warnings" include a suspect's right to remain silent and her right to representation by counsel, regardless of her economic means. (25) In the absence of such warnings, however, confessions obtained during custodial interrogation are usually inadmissible against a defendant at trial. (26)

   While Miranda is, in theory, a safeguard for the rights of criminal defendants, the Supreme Court has recognized that its warnings function largely to guarantee the admissibility of confessions, presumptively resolving the voluntariness inquiry in favor of the government. (27) Nevertheless, the government nominally bears the "heavy burden" of proving that a suspect's waiver of her constitutional rights is in fact voluntary. (28) In Seibert, five Justices agreed that the government's two-step interrogation procedure violated the defendant's constitutional rights, despite the police having ostensibly given the defendant her Miranda warnings prior to the second confession. (29) The Court disagreed, however, about the crucial analytical underpinnings for its holding. This Part begins by considering the Fifth Amendment voluntariness inquiry as considered by Seibert's plurality and dissenting opinions, particularly as construed in light of Elstad and Dickerson. I proceed to consider and critique the intent-based approach favored by Justice Kennedy, with its emphasis on balancing concerns of public policy.

   1. Voluntariness: the Plurality and Dissent's Focus on the Effectiveness of Miranda

      The defendant in Seibert argued, and a plurality of the Court agreed, that the confession procured by Missouri's two-step procedure was involuntary, despite the suspect's receipt of Miranda warnings and her corresponding waiver of her rights. The Court's plurality opinion agreed that although the defendant had technically received and waived her Miranda rights, she lacked any legitimate ability to exercise or even understand these rights. (30) The plurality noted that...