The Supreme Court Brings an End to the "End Run" around Miranda

Article excerpt

Since Miranda v. Arizona, (1) the U.S. Supreme Court has remained steadfast in its position that for a defendant to waive the privilege against self-incrimination, the government must establish that the defendant did so knowingly, intelligently, and voluntarily. Miranda held that any statement arising from custodial interrogation of a suspect is presumed to be involuntary and, therefore, inadmissible unless the police first provide the suspect with four specific warnings: the right to remain silent; that any statements may be used against them; the right to have an attorney present during questioning; and that an attorney will be appointed if he can not afford one. (2) Notwithstanding these warnings, the Court still could find the statement inadmissible if the Court concludes that the defendant did not waive those rights knowingly, intelligently, and voluntarily. In June 2004, the U.S. Supreme Court, once again, declared that condition as nonnegotiable when it handed down its decision in Missouri v. Seibert. (3)


This article addresses the validity of a waiver provided by suspects who have just been subjected to a two-tiered inter-rogation tactic used in Seibert wherein an unwarned interrogation precedes the Miranda warnings and waiver and a confession is obtained. The article also discusses the factors that a court considers when determining whether suspects, subjected to this two-tiered approach, waived their Miranda rights knowingly, intelligently, and voluntarily. Finally, the impact the U.S. Supreme Court's decision will have on the two-tiered interrogation tactic, sometimes referred to as the "ask first, warn later" tactic, is addressed.

Missouri v. Seibert: The Two-Tiered Interrogation Strategy

In Missouri v. Seibert, Patrice Seibert, the defendant, was a mother of five sons, one of whom, Jonathan, age 12, was stricken with cerebral palsy. When Jonathan died in his sleep, Seibert was fearful that she would be charged with negligence once the investigating authorities discovered Jonathan's body covered in bed sores. To avoid criminal culpability, she conspired with her two eldest sons and two of their friends to set fire to their mobile home, leaving Jonathan's body inside. However, she also was concerned with how she would explain leaving young Jonathan alone and unattended.

The answer was to leave Donald Rector, a teenager who was mentally ill and living with the Seibert family, in the mobile home with Jonathan. The medication that Rector was taking usually made him sleepy; therefore, the Seibert family counted on Rector being sound asleep in his bed when they set the fire. To them, the murder of young Donald Rector seemed like the perfect way to destroy any evidence of their neglect of Jonathan. (4)


Seibert was arrested later for her role in this crime and transported to the police station for questioning. Once at the police station, the arresting officer began to question Seibert without advising her of her Miranda rights and receiving a waiver. The officer who arrested Seibert and interviewed her testified that he purposefully refrained from advising Seibert of her Miranda rights even though he knew he was engaged in a custodial interrogation. The officer "testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given." (5) This was an interrogation technique that the officer had been taught. As a result, he was just "follow[ing] instructions." (6)

The officer testified that after Seibert was brought to the police station, he questioned her for approximately 30 to 40 minutes prior to advising her of her rights under Miranda. Thus, the questioning was "outside of Miranda." During this time, Seibert admitted that "she knew that Donald [Rector] was meant to die in the fire. …