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

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1. Pre-Miranda Questioning and Statements

Typically, courts first inquire into the length and completeness of the pre-Miranda questioning (173) and statements. (174) To undermine the Miranda warning, the initial interaction between a suspect and the police must constitute a custodial interrogation, (175) which typically requires Miranda warnings to be administered before the interrogation may begin. (176) Some courts, however, have found that police did not execute a question-first procedure because initial Miranda warnings were not required due to an exception to the Miranda requirement with respect to the circumstances surrounding the questioning. (177) Other courts find initial Miranda warnings unnecessary due to the type of questioning during the pre-Miranda stage. (178)

With respect to length of pre-Miranda questioning, some courts found it relevant to the pre-Miranda stage of the question-first inquiry whether pre-Miranda questioning was "short and cursory," (179) or consisted of "one" (180) or a similarly "limited number of questions." (181) With respect to the length of pre-Miranda statements, courts also round it relevant to the question-first inquiry whether a brief statement could overlap significantly with a detailed post-Miranda statement (182) or needed to be systematic and exhaustive to constitute a deliberate question-first procedure. (183)

Many courts have justified the failure to provide Miranda warnings during the initial stage of questioning as exceptions to the Miranda requirement. (184) Other courts have voiced criticism of the use of exceptions. In United States v. Woodruff, the court found that the interrogating officer should have known his question was reasonably likely to elicit an incriminating response. (185) In contrast, in United States v. Hernandez, the court asked whether it was "a foregone conclusion" that such a question would elicit information indicating criminal activity. (186)

2. Relationship Between Pre-Miranda and Post-Miranda Statements

Circuit courts take slightly different approaches to the relationship between pre- and post-Miranda statements. Some courts focus exclusively on how related pre- and post-Miranda statements are to each other. (187) Other courts require that pre-Miranda and post-Miranda statements overlap. (188) This factor is significant because "[r]eference to the prewarning statement [is] an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating." (189)

Courts have justified their treatment of the relationship between pre-Miranda questioning and statements in two main ways: either the statements must overlap or the statements must be related. For example, in United States v. Torres-Lona, the Eighth Circuit round no overlap where the post-Miranda statement was not identical to the pre-Miranda statement. (190) Analogously, in Woodruff, the court round little overlap due to the different content of the two stages of questioning. (191)

In contrast, in Edwards the D.C. Court of Appeals criticized the focus on overlap by courts. Specifically, the court argued that different pre- and post-Miranda statements that addressed the same crime were indicative of a deliberate question-first procedure because "limiting Seibert to full confessions would encourage police to withhold Miranda warnings at the beginning of interrogations and bring the suspect to the brink of confessing." (192) The relationship between pre-Miranda and post-Miranda statements influences how police may reference a pre-Miranda statement during a subsequent post-Miranda interrogation. (193) For example, a police officer may learn new information that allows her to ask informed, open-ended questions.

3. Referencing Pre-Miranda statements in Post-Miranda Interrogation

Most courts evaluate whether post-Miranda questioning referenced pre-Miranda statements (194) and ask whether the police confronted the suspect with her prior statements. …

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