FROM THE CLASSROOM

By: Ray Hill, Professor Emeritus, Santa Rosa J.C.

Miranda Update #11 - You Can’t Dance the “Two Step”!

This is the eleventh in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases.

I recently spoke with a couple of former students who are preparing for an oral board for specialty assignments or promotion. They are Pro Plan subscribers. I counseled them to include in their presentations the fact that they keep updated weekly on case law related to law enforcement. With this information in hand, they are in the best position to keep any evidence they recover “legally obtained” or pass this information into trainees and subordinates with the same objective. Consider adding this to your future presentation. In preparation for a follow up question (What was the most recent case?), be prepared by checking the LUPC webpage and review the latest posting.

“Inserting Miranda warnings in the midst of coordinated and continuing interrogations misleads suspects about their constitutional rights and by any objective measure reveal a police strategy adapted to undermine Miranda warnings” (Missouri v. Seibert, U.S. (2004) 542 U.S. 600).

In fact, this technique had been taught in some state interview and interrogation classes. This questioning procedure involved a planned, “question-warn-question” sequence commonly referred to as the “two-step”. The objective was to first get an unwarned statement from a suspect (“establish a beachhead” or “letting the cat out of the bag”). The incriminating statements are out on the table. Then an investigator would advise of Miranda, obtain a waiver, rehash the same questioning and reduplicate the statements previously given. The argument being that the second statements were voluntary because a Miranda waiver was obtained.

Appellate courts have disapproved of this questioning technique. Examples:

Missouri authorities arrested the defendant for murder after she set her mobile home afire. Her motive was to cover up the accidental death of her 12-year-old son who suffered from cerebral palsy and died in his sleep. Defendant feared she would be charged with child neglect because her son had bedsores on his body. A 17-year-old, developmentally disabled boy, who also lived with the defendant, was left to die during the fire. Police pre-planned to question the defendant using a “two-step” interrogation process. First, without a Miranda warning, an officer questioned defendant for 30-40 minutes in order to gain statements. She admitted to the crime and this interview ended. After a 20-minute “coffee and cigarette break”, an officer gave a Miranda warning and obtained a written waiver. He resumed questioning, questioned the defendant about her pre-warning statements, and urged her to repeat her statements again (which she did). U.S. ruled all statements must be suppressed. Officers purposely withheld a Miranda warning as part of a systematic interrogation technique designed to elicit an initial statement before reading the accused her rights. “When police were finished there was little, if anything, of incriminating potential left unsaid”. There was no break in time or circumstances, the questioning took place in the same small room, was conducted by the same officer, and the officer did not advise Seibert that her prior statements could not be used against her (“curative measure”). “A reasonable person in Seibert’s position would not have understood she retained a choice about continuing to talk or not talk about her case” (Missouri v. Seibert, U.S. (2004) 542 U.S. 600).

Agents of the U.S. Diplomatic Service questioned the defendant in two stages about a fraudulent passport application. Agents asked questions without a Miranda waiver and received a confession. They then read the defendant his Miranda rights, he waived, and gave a written confession. USCA ruled the agents utilized a calculated, “two-step” interrogation sequence. Defendant was initially questioned until he gave a statement, there was no break in time or change of location, the second questioning was a merely an overlapping continuation of the first unwarned questioning, and no curative measures were taken (U.S. v. Williams (2006) 435 F 3d 1148).

Please see also Bob Phillips, “Miranda and Confession Law – Fifth Edition, Pages 25, 153, 62, 244-252.

So you might be thinking, what about the attenuation process I heard or read about for “repairing” or “rehabilitating” a Miranda violation? The case law upholding the attenuation process differs from the “two step” in that these cases have dealt with brief, un-Mirandized questioning after arrest as opposed to a strategic decision to “question-warn-question” in order to to evade Miranda requirements.

Here are some U.S. Supreme Court cases upholding the attenuation process:

After a residential burglary arrest, detectives asked the defendant, “Do you know why we’re here?”, “Do you know the victim?”, “I think you were involved”. Defendant replied, “Yes, I was there”. The first unwarned statement was inadmissible. However, a second statement given ½-hour later at the police station was attenuated through a voluntary Miranda waiver (Oregon v. Elstad (1985) 470 U.S. 298).

Custodial statements made during a warrantless search of the suspect's home were attenuated when a voluntary Miranda waiver was obtained 1-1/2 hours later at the police station (New York v. Harris (1990) 795 U.S. 14).

The keys to successful attenuation are:

1. The previous unwarned questioning was not lengthy, detailed or involuntary;
2. There is a substantial break in time and circumstances between the first and second statements;
3. A suspect is informed that any prior statement(s) made cannot be used against him/her in court (“curative measure”);
4.  A knowingly and voluntarily given Miranda waiver is obtained.

Please see also Bob Phillips, “Miranda and Confession Law – Fifth Edition, Pages 242-244.

It stands to reason that anytime you skip Miranda before custodial questioning, a judge is going to look very closely at the circumstances surrounding the questioning. The presumption is custody + questioning = Miranda. I quote Bill Bedsworth, former Orange County Deputy District Attorney, former Orange County Superior Court judge, and Associate Justice with the 4DCA in Santa Ana, whose knowledgeable legal instruction in past P.O.S.T. Legal Updates was so informative. Bedsworth’s Law – “Anytime you have a judge between you and the right decision, you’ve got your work cut out”!

Stay Safe,

RH