The NJ Police Chief Magazine - Volume 29, Number 3 - Page 13

The New Jersey Police Chief Magazine | November 2022
Continued from previous page
Second , all confessions , regardless of Miranda , are still potentially subject to a challenge of whether the confession was involuntary and / or coerced . Importantly , in cases where Miranda warnings are administered and a waiver obtained , it is very difficult to prove that a confession was involuntary . As the SCOTUS has explained :
The requirement that Miranda warnings be given does not , of course , dispense with the voluntariness inquiry . But as we said in Berkemer v . McCarty , 468 U . S . 420 , 104 S . Ct . 3138 , 82 L . Ed . 2d 317 ( 1984 ), “[ c ] ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘ compelled ’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare .”[ 3 ]
In other words , proof of adherence to Miranda with a proper waiver by the person helps to ensure the admissibility of any statements . With the proliferation of video capabilities in interview rooms , it should be common practice to record every minute of an interview . This allows the administration of warnings to be permanently memorialized , which greatly enhances the validity of the statement obtained .
Beware of Procedural Creativity So , what did I mean when I stated previously that officers can sometimes get procedurally creative ? An example can be found in the underlying facts of the SCOTUS case Missouri v . Seibert .[ 4 ] Officers investigating an arson used a two-step interview practice called “ question first ” during custodial interviews , which had been widely taught by a national training organization . The practice involved intentionally withholding Miranda warnings until the suspect confessed to the suspected crime . After a brief delay , Miranda warnings would then be administered , and the investigator would get the suspect to repeat the incriminating statements if the person waived their rights . The latter statement would then be admissible in court because it followed Miranda warnings .
This practice was apparently based on a SCOTUS precedent , Oregon v . Elstad , which held that prior unwarned statements would not automatically make subsequent fully warned statements inadmissible .[ 5 ] The Seibert court ruled , in a 5-4 decision but in a plurality opinion , that this practice was designed to circumvent the protections afforded by , and was incompatible with , the rule of Miranda . The court affirmed the suppression of the statements , which effectively put an end to that practice .[ 6 ]
The Elstad case did not involve police officers intentionally circumventing Miranda . Instead , the initial admission was made voluntarily during a brief exchange with officers as the subject was being arrested . Such things will sometimes happen during rapidly unfolding events without any bad intent by the officer . In such cases the Elstad rule makes sense . But officers and trainers seized on the Elstad rule and expanded it beyond the holding .
Any practice , such as that in Seibert , designed to circumvent or shortcut a rule or established practice is detrimental to the growth of an officer — or any person for that matter . Interviewing is a skill that can be learned and enhanced with time and practice . The ability to administer the warnings effectively is a critical component of an interview and , therefore , is part of the overall skill needed to obtain confessions . This may sound obvious , but the interviewers got confessions . Did they really need to use this “ question first ” practice that could cast doubt on the totality of the interview ? All they ended up doing was to potentially raise the question of what happened prior to the warnings . Use your video , if you have it , to record the entire interview and develop your skills so you don ’ t need to take shortcuts to get the confession .
Skipping Miranda for any substantive part of a custodial interview can increase the possibility of a claim the confession was involuntarily made . Procedural shortcuts that involve circumventing established rules can also promote a culture of “ the ends justify the means .”[ 7 ] Does that end with small , insignificant rule deviations ? Or will some officers take it further ?
Also not discussed in any detail in the Tekoh case was the fact that determining compliance to Miranda is just one issue related to the voluntariness of a confession . While officers may not be held civilly liable in a § 1983 case for a Miranda violation , they may be sued for an actual violation of the Fifth Amendment prohibition on self-incrimination if a confession is deemed coerced and involuntarily obtained . Such coercion could also rise to the level of a violation of the Fourteenth Amendment due process clause . Granted , police actions that would rise to the levels necessary to sustain an action for any of these constitutional violations would be far more significant than failing to administer Miranda warnings . Another possibility not addressed by Tekoh is a violation of the Sixth Amendment right to counsel . With or without the warnings , continuing an interview and refusing to acknowledge a person ’ s clear requests for an attorney could rise to this level .
When Miranda May Not Apply The rule of Miranda is simple and straightforward — you must have both custody and interrogation . If one component is missing , Miranda does not apply and the warnings do not need to be administered . There are circumstances in non-custodial settings where officers consciously and legitimately do not administer Miranda
Continued on next page