Is Missouri V. Seibert Practicable? Supreme Court Dances the "Two-Step" around Miranda
Nooter, Daniel S., American Criminal Law Review
Is Miranda v. Arizona (1) merely an exercise in formalism, or does Miranda embrace a substantive commitment to constitutional rights? On June 28, 2004, the Supreme Court rendered an opinion in Missouri v. Seibert (2) rejecting Missouri's "two-step" technique for procuring confessions, while ostensibly re-affirming Miranda's vitality as a substantive rule. The Court held that police interrogators could not exploit the mere form of the Miranda warnings while intentionally depriving these warnings of their meaningful substance. Nevertheless, the practical effect that Seibert will have in the law enforcement community may be fundamentally vitiated by the opinion's failure to announce a coherent rule.
Under the interrogation protocol challenged in Seibert, Missouri police officers were instructed intentionally to avoid reading suspects their Miranda warnings prior to interrogation. (3) Rather, police were instructed to inform suspects of their constitutional rights--as required by Miranda--only after the suspect had already made an incriminating statement. Only after the statement was made would police obtain the Miranda waiver and proceed to interrogate the suspect regarding the subject of his prior, unwarned self-incriminatory statements. (4) While the pre-Miranda statement would thus be inadmissible in court, police and prosecutors would nevertheless use the subsequent, post-Miranda statement against the defendant. Although Seibert concerned the two-step procedure as applied particularly in one police department in Rolla, Missouri, trial evidence demonstrated that police departments in other regions had implemented similar procedures, and that such two-step interrogation techniques had in fact been promoted by a national police training organization. (5)
Five justices in Seibert voted to require suppression of the defendant's self-incriminatory statements, despite the fact that she had made such statements after being "Mirandized" and ostensibly waiving her rights. (6) While one commentator has described Seibert as "a rare moment of intelligibility in [the Court's recent] Fifth Amendment thicket," (7) Seibert in fact offers scant guidance to courts and practitioners attempting to apply its rule. Indeed, in light of the highly contradictory approaches taken by the Seibert plurality (8) and by Justice Kennedy, who provided the crucial fifth vote in the judgment, one may plausibly argue that Seibert offers no workable rule at all.
The dispute between Justice Kennedy and the plurality turns on whether Miranda's exclusionary rule should be considered as an "effects" test or as an "intent" test. (9) The plurality would focus on the effect of two-step interrogation, and would thus suppress downstream confessions whenever the two-step procedure is reasonably likely to undermine Miranda's ability to ensure voluntary confessions. (10) Because the plurality's concern is the confession's voluntariness, the plurality would conduct the Seibert inquiry from the perspective of "a reasonable person in the suspect's shoes." (11) Justice Kennedy, in contrast, would apply an intent-based test, focusing not on the state of mind of the suspect, but on the motives of the interrogating officer. Under Justice Kennedy's approach, suppression of post-warning statements is appropriate under Seibert only where "the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (12)
Justice Kennedy's position poses several obstacles to the distillation of a workable rule. First, his emphasis on intent rather than on voluntariness stands in direct conflict not only with the reasoning of the plurality, but also with the reasoning of the four dissenting Justices. Justice O'Connor, writing for the dissent, explicitly endorses "[t]he plurality's rejection of an intent-based test." (13) As O'Connor elaborates, "[f]reedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect's decision to speak truly was voluntary. …