Interrogation First, Miranda Warnings Afterward: A Critical Analysis of the Supreme Court's Approach to Delayed Miranda Warnings

By Rodriguez, Joshua I. | Fordham Urban Law Journal, March 2013 | Go to article overview

Interrogation First, Miranda Warnings Afterward: A Critical Analysis of the Supreme Court's Approach to Delayed Miranda Warnings


Rodriguez, Joshua I., Fordham Urban Law Journal


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. …

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