From the Classroom
By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College 

Miranda Quiz #4 

1) You have arrested a suspect for domestic violence with serious bodily injury. Upon receiving a Miranda admonition, he demands to see counsel. You give the suspect your business card, telling him you cannot question him further, that you still would like to hear his side of the story, and that if he should want to speak in the future, he should feel free to call you. The defendant is arraigned and a public defender is appointed to represent him. He is held over for trial at prelim. 

Three weeks later, you receive a phone call from the suspect. He says he wants “to get some things off his chest.” You contact him at jail, confirm that no one has promised or induced him to make the call, give Miranda, the defendant waives and makes incriminating statements.  

The public defender objects to the introduction of the statements at trial on Sixth Amendment grounds. She argues that as representing counsel, the officer didn’t contact her first, nor was she present at the time of the interview.  

The statements should be? 

ADMISSIBLE or  INADMISSIBLE  

2) A vehicular manslaughter suspect is arrested, given his Miranda rights, waives and confesses. Three days later, he is charged, arraigned and appointed a public defender for legal representation. Several hours after arraignment, investigators recontact the defendant in jail. They obtain a second Miranda waiver and have the defendant write a letter of apology to the victim’s widow which contains inculpatory details about the crime,  

The defendant’s appointed attorney was not contacted or present during the second contact. 

The letter will be? 

ADMISSIBLE or INADMISSIBLE 

3) Detectives arrest a suspect for child molestation. They plan to question the suspect without a Miranda warning so they can “establish a story line” and make the suspect feel more comfortable about talking to them. They question him for 30 minutes and obtain incriminating admissions. Once the “cat is out of the bag,” officers tell the suspect to relax and they take a 15-minute coffee and cigarette break. They return and Mirandize him, he waives and detectives encourage him to continue to “get this thing off his chest.” Detectives refer to the first statement when questioning him during the second statement. 

The first statement should be? 

ADMISSIBLE or INADMISSIBLE 

The second statement should be? 

ADMISSIBLE or INADMISSIBLE 

Answers 

Question #1 – ADMISSIBLE 

“An accused initiates such dialogue when he speaks words or engages in conduct that can be fairly said to represent a desire on his part to open up a more generalized discussion related directly or indirectly to the investigation” (Peo. v. Mickey (1991) 54 Cal.3d. 637).  

This is one of the Edwards Rule exceptions. After a counsel assertion when the suspect voluntarily initiates questioning, you need to document the circumstance surrounding the suspect’s (now defendant’s) change of mind and seek a Miranda waiver. The waiver of the right to have counsel presents clears any Sixth Amendment issue. It is not necessary to contact the defense counsel. She will find out about your conversation on discovery. (Peo. v. Sultana (1988) 204 Cal. App. 3d 515; Peo. v. Stephens (1990) 218 Cal. App. 3d 578). 

Case Example: 

In a death penalty case, the defendant was arrested for rape, sodomy and murder after beating, strangling and stabbing the victim. The victim’s nipples were bitten off during the crime. Upon Miranda advisement, the defendant stated, “No, I want a lawyer.” The next day he called officers and said, “Detective, can I talk to you? I don’t know what’s going on.” He was readvised of his Miranda rights, waived them and confessed to the crime. His request reinitiated the opportunity for questioning (Peo. v. Bradford (1997) 14 Cal. 4th 1005). 

Question #2 – ADMISSIBLE 

After an initial Miranda waiver, there is no error in talking with a defendant about crimes for which he or she has already been appointed counsel. During a Miranda admonition one is advised of the Sixth Amendment right to have an attorney present before or during questioning and can invoke that right. “A defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings (Montejo v. Louisiana (2009) 556 U.S. 778; Peo. v. Lispier (1992) 4 cal. App. 4th 1317). 

Case Example: 

The defendant was arrested for robbery/murder. He initially waived his Miranda rights and confessed. Three days later, the defendant was arraigned and appointed a public defender to represent him. The same day investigators recontacted the defendant in jail and obtained a second Miranda waiver. He accompanied investigators to the crime scene and wrote “an inculpatory letter of apology to the victim’s widow.” He had initially waived his Miranda rights and waived Miranda a second time, including the right to have counsel present. Officers may re-question a defendant about crimes without having an attorney present (Montejo v. Louisiana, supra). 

“The rule of Edwards, et. al., applies only when the suspect has expressed his wish for the particular sort of lawyerly assistance that is the subject of Miranda...It requires at the minimum, some statement that can be reasonably construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police” (Peo. v. Lispier, supra). 

Note: The first questioning in the Montejo case was done with a voluntarily given Miranda waiver. Had the defendant initially asserted his Miranda rights (silence or counsel) this ruling would be inapplicable. With a Miranda assertion, police could not initiate follow-up questioning once the Sixth Amendment right to counsel attaches. 

QUESTION #3 – Both statements are INADMISSIBLE 

The U.S. Supreme Court has disapproved of a planned “question-warn-question” sequence commonly referred to as the “Two-Step.” “Inserting Miranda warnings in the midst of coordinated and continuing interrogations misleads suspects about their constitutional rights” and “by any objective measure reveal(s) a police strategy adapted to undermine Miranda warnings” (Missouri v. Seibert (2004) 542 U.S. 600).  

Case Notes:  

Missouri authorities arrested Seibert, 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. The 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 preplanned to question the defendant using a “Two-Step” interrogation process. First, without a Miranda warning an officer questioned the defendant for 30 to 40 minutes to gain a statement (“establish a beachhead.”) 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, confronted the defendant with her pre-warning statements and urged her to repeat her statement again, which she did.  

All statements were 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,” the ruling said. The questioning took place in the same small room, 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 (Missouri v. Seibert, supra).  

In another case, agents of the U.S. Diplomatic Service questioned a defendant in two stages about a fraudulent passport application. Agents asked questions without a Miranda admonition and waiver, and received a confession. Then they read the defendant his Miranda rights, he waived, and gave a written confession. The agents utilized a deliberate, “Two-Step” interrogation sequence. The 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 a continuation of the first unwarned questioning, and no curative measures were taken (U.S. v. Williams (2006) 9th Circuit Docket #04-50182. 

Note: For the best case law reference in California, refer to Bob Phillips’ “Miranda and the Law – The Fifth Amendment – A Legal Update,” July 2023. This publication is on the www.legalupdates.com website and is free to Pro Subscribers.