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Interrogation first, Miranda warnings afterward: a critical analysis of the Supreme Court's approach to delayed Miranda warnings.

  I. Understanding the Origins of Question-First Jurisprudence
     A. The Right Against Self-Incrimination and Miranda v.
     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
        3. Referencing Pre-Miranda statements in Post-Miranda
        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
        3. Relationship Between Pre-Miranda and Post-Miranda
        4. Referencing Pre-Miranda Statements in Post-Miranda
        5. Curative Measures
        6. Burden of Proof
        7. Application of Holistic Question-First Approach

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)


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. (14) The District Court denied Hart's motion to suppress his post-Miranda statements, reasoning that the police did not use a question-first procedure calculated to elicit a post-Miranda confession from him. (15)

The admissibility of post-Miranda statements in question-first cases is governed by the United States Supreme Court's decision in Missouri v. Seibert. (16) This Note considers the treatment of mid-interrogation Miranda warning cases by the Federal Courts of Appeals in the wake of the United States Supreme Court's plurality opinion in Seibert (17) and suggests how greater consistency, efficiency, and fidelity to the law might be achieved in future cases. The Court described the question-first procedure as a "technique of withholding warnings until after interrogation succeeds in eliciting a confession," which causes the subsequent Miranda "warnings [to] be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." (18) When the warnings following an earlier unwarned statement are held ineffective, a statement or confession offered after that warning is inadmissible. (19) In Seibert, the Court issued a plurality opinion to which four Justices joined. Justice Kennedy's concurrence provided the deciding fifth vote. (20) The five Justices disagreed, however, as to how effectiveness should be determined. (21) In Seibert, the plurality uses a multifactor test to determine whether a suspect's apprehension of the Miranda warning was rendered ineffective by the interrogator's use of a question-first procedure. (22) In contrast, Justice Kennedy articulates a "narrower test" that applies only to deliberate question-first procedures. (23) Further, while the Seibert plurality places the burden of showing admissibility on the prosecution, (24) Justice Kennedy's opinion is silent on the matter. (25) Thus circuit courts in the wake of Seibert have disagreed as to whether the intent of the police responsible for the question-first procedure or the impact on the defendant of a police question-first procedure controls. (26)

The conflict among circuit courts in question-first cases stems from various disagreements. Circuits disagree as to whether the plurality or Justice Kennedy's concurrence provides the narrowest grounds of the Supreme Court's decision, and thus which opinion states the controlling rule. (27) Moreover, the choice of factors determining whether the use of the mid-interrogation warning was "deliberate" in a particular case, in addition to their proper application, has been fraught with conflict. (28) Lower courts also misconstrue the various policies underlying Miranda, such as dispelling the inherently coercive atmosphere of custodial interrogations, (29) deterring improper police conduct, and preserving the trustworthiness of confessions. (30)

This Note seeks to clarify the complexity of Seibert and explain the failure of lower courts to accurately apply its precepts. It goes on to suggest a solution to this problem that reflects the wisdom of Justice Kennedy's view.

Part I of this Note discusses the development of the Supreme Court's question-first procedure jurisprudence, including a discussion of question-first procedures generally; the development of the Miranda warning; the facts in Seibert that led to the Supreme Court's focus on the question-first procedure; and the Supreme Court's treatment of Miranda violations through question-first procedures.

Part II analyzes ten circuit courts' applications of Seibert in light of the considerations and analysis applied by Justice Kennedy in his concurrence, as well as the burden of proof required of the prosecution, if any, to show that police did not apply a deliberate two-step interrogation technique. Throughout this analysis, this Note examines the facts present in the circuit cases as they relate to those in Seibert.

Lastly, Part III argues that Justice Kennedy's approach, which is followed by the Second, Third, Fourth, Fifth, Eighth, and Eleventh Circuits, should be controlling. Second, within the set of circuits following Justice Kennedy's concurrence, this Note supports an approach followed only by the Fifth and Eleventh Circuits as particularly faithful to Justice Kennedy's concurrence, even though Justice Kennedy's concurrence does not explicitly advance any factors. (31) Third, this Note seeks to clarify the proper application of the factors to be used by lower courts to comply with Justice Kennedy's concurrence. (32) Finally, this Note attempts to bring order to the inconsistent and inefficient jurisprudence surrounding evaluations of potentially improper question-first procedures. (33) In the aftermath of Seibert, circuit courts have used widely divergent and inconsistent criteria to evaluate whether a particular question-first procedure violates Miranda. The criteria used by circuit courts often contradict the central concerns and considerations advanced by Justice Kennedy's concurrence. Moreover, the inconsistency in the circuit courts' treatment of question-first cases provides poor guidance to police and sows confusion in the lower courts. This Note suggests a simple and more coherent standard in accordance with Justice Kennedy's concurrence.


To provide context to the standards applied by courts in question-first cases, I provide a brief overview of the development of Supreme Court case law regarding custodial interrogations and Miranda warnings. I then discuss the circumstances in Seibert, which led to the apparently deliberate two-step interrogation of the defendant. (34)

A. The Right Against Self-Incrimination and Miranda v. Arizona

Prior to Miranda, courts evaluated the admissibility of confessions under a voluntariness test, which the Supreme Court developed from the Fifth Amendment (35) and the Fourteenth Amendment (36) to the United States Constitution. (37) In Haynes v. Washington, the Supreme Court held that a suspect's custodial statements were involuntary where they had been obtained by "techniques and methods offensive to due process" or under circumstances precluding a suspect from exercising "a free and unconstrained will." (38) In 1966, however, the Supreme Court held in Miranda v. Arizona that statements made by a defendant while under custodial interrogation may not be used against him at trial, unless the prosecution proved that law enforcement took certain procedural steps to protect the defendant's constitutional right against self-incrimination. (39) Specifically, the Court in Miranda required law enforcement to advise custodial suspects of their right to remain silent and their right to counsel before and during interrogation. (40) In response, Congress attempted to overrule Miranda by passing 18 U.S.C. [section] 3501 (1968). (41)

Subsequently, in United States v. Dickerson, the Supreme Court examined 18 U.S.C. [section] 3501 and the Miranda opinion to determine whether the Miranda court had announced a constitutional rule. (42) The Court held that Miranda announced a constitutional rule that replaced the traditional totality-of-the-circumstances voluntariness test, (43) and invalidated 18 U.S.C. [section] 3501, reasoning that the statute must be invalid if Miranda continues to be the law. (44) Given the Court's reaffirmation of Miranda in Dickerson, the admissibility of statements made by a suspect during interrogation remains dependent upon the provision of Miranda warnings by police. (45)

B. Oregon v. Elstad

The Supreme Court first addressed the question-first procedure in Oregon v. Elstad. (46) In Elstad, a police officer visited the home of an eighteen-year-old male suspect in a burglary. (47) Without giving Miranda warnings, the officer asked whether the young man knew another man implicated in the robbery. (48) After the suspect replied in the affirmative, the police officer informed the suspect that he believed the suspect was involved in the robbery, to which the suspect again replied in the affirmative. (49) The police subsequently drove the suspect to the police station, gave him a full set of warnings and elicited another confession, consistent with the first admission. (50)

To determine whether the subsequent warned confession should be inadmissible at trial, the Elstad Court determined that "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made." (51) Specifically, the Supreme Court reasoned that the officer's unwarned interrogation of the suspect was an oversight, and therefore "had none of the earmarks of coercion." (52) This directly contradicted the Oregon State Supreme Court's position that, since the unwarned statement to the officer took place during a series of questions, the "cat was sufficiently out of the bag to exert a coercive impact on [the defendant's] later admissions," rendering them inadmissible. (53) In response, the United States Supreme Court emphasized that "[a]bsent deliberate coercion or improper tactics in obtaining an unwarned statement, a careful and thorough administration of Miranda warnings cures the condition that rendered the unwarned statement inadmissible." (54) As a result, the Supreme Court reversed the Oregon State Supreme Court's decision to suppress the suspect's later warned confession, despite the fact that the suspect's first admission was unwarned and the interrogation had proceeded in two steps, with an unwarned confession at the first step and a subsequent Mirandized confession at the second step.

The difference between the determination of the Oregon Supreme Court and that of the United States Supreme Court in Elstad lies in the different perspective each side takes to evaluate whether the police conducted a deliberately coercive question-first procedure. While the Oregon court focuses on the coercive effect of the prior unwarned confession on later admissions, the Supreme Court disregards this consideration and instead focuses exclusively on whether the police officers' execution of the unwarned and subsequent warned interrogations of a suspect were "deliberately coercive." (55)

C. Missouri v. Seibert

In Seibert, a defendant was suspected of involvement in the burning of a mobile home to conceal the circumstances of her son's death in his sleep. (56) Police arrested the defendant but failed to administer her Miranda warnings and questioned her for over half an bout, which resulted in the suspect's confession that her son was actually supposed to die in the fire. (57) Police then gave the defendant a twenty-minute break, returned to administer her Miranda warnings, and obtained a waiver. (58)

The interrogating officer then resumed questioning the suspect, confronting her with her pre-Miranda statements and getting her to repeat the information she had revealed earlier. (59) At trial, 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, pursuant to an interrogation technique the officer was taught. (60) Because the Court held that the Miranda warnings, which were given raid-interrogation after the defendant provided an unwarned confession, were ineffective, the suspect's subsequent repeated confession was inadmissible at trial. (61)

1. Description of Question-First Technique

The Court described the question-first procedure as a police practice in custodial interrogations that calls for giving no warnings of the rights to silence and counsel until interrogation has produced an incriminating statement. (62) Though such a statement is generally inadmissible as it results from a violation of Miranda, (63) the interrogating officer follows the statement with Miranda warnings and then leads the suspect to cover the same ground a second time. (64) Because this question-first procedure does not effectively comply with Miranda "s constitutional requirement, (65) the Supreme Court held that a statement repeated after a warning in such circumstances is inadmissible. (66) In Seibert, the Court stated that the technique of interrogating in successive, unwarned and warned phases raised a new challenge to Miranda. (67) At the time of Seibert, the question-first procedure was widespread, having been included in police training nationwide. (68) Though the question-first procedure's prevalence in police training has decreased nationwide post-Seibert, (69) police training advocacy of the procedure has not ceased entirely. (70)

The question-first procedure undermines the effectiveness of the eventual Miranda warning because a suspect cannot understand initially that she has a right against self-incrimination once a she has already incriminated herself during the pre-Miranda stage. (71) Further, it is unlikely that a suspect can retain the understanding that Miranda provides when the interrogator leads the suspect through her previous unprotected statements. (72) Finally, it is unlikely that a suspect will understand that she has the right to stop the interrogation, since she has already provided unprotected incriminating statements. (73)

2. Seibert Question-First Analysis

The Supreme Court's majority decision in Seibert to exclude the suspect's confession was formed from a plurality, comprised of Justices Souter, Stevens, Ginsburg, and Breyer, (74) and a concurrence by Justice Kennedy. (75) Rather than focus on the intent of the police officer that executed the question-first procedure, the plurality held "that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk." (76)

To decide whether the defendant's warned confession in Seibert should be suppressed, the plurality in Seibert
   laid out five factors to be weighed when analyzing the
   effectiveness of the warning: (1) "the completeness and detail of
   the questions and answers in the first round of interrogation," (2)
   "the overlapping content of the two statements," (3) "the timing
   and setting of the first and second" interrogation, (4) "the
   continuity of police personnel," and (5) "the degree to which the
   interrogator's questions treated the second round as continuous
   with the first." (77)

Toward the end of the plurality's opinion, the plurality applied this standard to the facts, which, it argued, collectively undermined the Miranda protection. Significantly, the plurality equivocated with respect to whether this standard should be evaluated in terms of its police tactics or creating a coercive impact from the perspective of the suspect. (78) First, the initial unwarned interrogation was described as "systematic, exhaustive, and managed with psychological skill," leaving "little, if anything, of incriminating potential left unsaid." (79) This satisfied the plurality's first factor, which evaluated the completeness and detail of the questions and answers in the first round of interrogation. (80) Second, because Seibert repeated her statements almost verbatim during both the unwarned and warned confessions, the content of the two statements clearly overlapped, thereby satisfying the second factor. (81) Third, the plurality described the warned phase of questioning as proceeding after a pause of only fifteen to twenty minutes, in the same place as the unwarned segment. (82) The short time between both interrogations and the fact that each of the interrogations took place in the station house fulfilled the timing and setting factor of the plurality approach. (83)

Fourth, the same officer who had conducted the first phase recited the Miranda warnings, thereby continuing the police presence of the pre-Miranda questioning into the post-Miranda stage. Fifth, the interrogating officers referenced the suspect's pre-Miranda statement during the post-Miranda stage when she made a statement at odds with her unwarned confession. (84) Additionally, the interrogating officer said nothing to counter the probable misimpression arising from the warning that anything Seibert said could be used against her, nor did the officer actually advise Seibert that her prior confession could not be used against her. (85) This demonstrated the degree to which the interrogator's questions treated the second round as continuous with the first, satisfying the fifth factor. (86) Lastly, the plurality did not undertake any curative measures analysis. (87)

Justice Kennedy's concurring opinion differs in certain key respects from the plurality opinion. Specifically, Justice Kennedy argues that statements obtained from police use of a question-first procedure should only be suppressed where the police conducted the question-first procedure deliberately. Justice Kennedy's approach narrows the plurality's approach in holding that the plurality's test
   envisions an objective inquiry from the perspective of the suspect,
   and applies in the case of both intentional and unintentional two-
   stage interrogations. In my view, this test cuts too broadly.... I
   would apply a narrower test applicable only in the infrequent case,
   such as we have here, in which the two-step interrogation technique
   was used in a calculated way to undermine the Miranda warning. (88)

Additionally, according to Justice Kennedy's concurrence, if a court finds that the police executed a deliberate two-step interrogation, the court must also evaluate whether any curative measures took place afterwards to render the suspect's confession admissible. (89) These curative measures include allowing time to pass between interrogations, changing personnel, and changing location. The five-Justice majority held that post-Miranda statements, subsequent to a pre-Miranda interrogation, were inadmissible where mid-interrogation Miranda warnings were ineffective. (90) Unlike Justice Kennedy, the plurality did not address curative measures as a separate step. Additionally, the plurality was unclear as to whether effectiveness should be determined by the intent of the police responsible for the question-first procedure or the impact on the defendant of the question-first procedure. (91)

Notably, Justice Kennedy shifts to addressing the impact on the defendant of the question-first procedure when evaluating curative measures, which he argues "should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and ... waiver." (92) Indeed, a key difference between the Seibert plurality and Justice Kennedy lies in the focus of each. In Seibert, the plurality resurrected the Oregon State Supreme Court's focus in Elstad on an unwarned confession's impact on a suspect to determine whether an improper question-first procedure occurred. (93) This focus on the defendant, however, was too "broad" for Justice Kennedy, who was concerned that punishing unintentional failures to initially provide Miranda would rail to deter improper police conduct. (94) Thus, in contrast to the four-Justice plurality's approach, Justice Kennedy concluded that the statements repeated after later warnings would hot be admissible if a deliberate question-first procedure was employed, where the administration of Miranda warnings occurred after a prior unwarned confession. (95) Additionally, Justice Kennedy held that upon use of a question-first procedure with the intention of violating Miranda during an extended interview, post-Miranda statements that are related to the substance of pre-Miranda statements must be excluded unless police take specific, curative steps to reestablish the effectiveness of the Miranda warning. (96) In Seibert, Justice Kennedy found that the police executed a deliberate question-first procedure and failed to take curative measures to render the Miranda warning effective. (97) As a result, the Court excluded the suspect's post-Miranda statements.

Part II will examine the approaches of circuit courts that seek to follow either the Seibert plurality or Justice Kennedy's concurring opinion and, among those circuits that follow Justice Kennedy's concurrence, Part II will examine their approaches to the considerations that Justice Kennedy applied.


The circuit courts have different approaches to evaluating whether police employed a question-first strategy. Six circuits follow Justice Kennedy's view and ask whether the violation was deliberate. The remaining circuits either apply the plurality alone or use both tests concurrently, or combine parts of the two, and usually decline to decide which approach controls. (98) In either case, the circuits usually decline to decide which approach controls. (98)

This circuit split results in inconsistent suppression holdings in question-first cases, unpredictable law, and unclear guidance to law enforcement personnel. This Part illustrates the circuit split by first examining the two-pronged approach of circuit courts that apply both the plurality approach and Justice Kennedy's professedly narrower inquiry into whether the question-first procedure was deliberately executed by police, then by examining the more common approach of the circuit courts that follow Justice Kennedy's narrower inquiry exclusively.

The circuit courts also have three different approaches to applying Justice Kennedy's inquiry into whether a question-first procedure was deliberately executed. (100) Finally, this Part examines the circuits' varying treatment of the considerations and criteria used by the lower courts to evaluate the deliberateness of question-first procedures. The approaches of the circuit courts that follow the plurality and those that follow Justice Kennedy's concurrence each have their strengths and weaknesses. (101) Similarly, the approaches of the circuit courts to the factors comprising Justice Kennedy's approach and other considerations involved in question-first cases also have strengths and weaknesses. (102) Subsequently, Part II reviews praise and criticism of these approaches through the combined lenses of the policies underlying Miranda and the principle of stare decisis. (103)

A. Plurality v. Intent

1. Circuits that Apply the Plurality Approach to Evaluate Question-First Procedures

Five circuits apply either solely the plurality approach or concurrently apply both the plurality and Justice Kennedy's deliberateness test to question-first procedures. Specifically, the First Circuit, (104) Sixth Circuit, (105) Seventh Circuit, (106) Ninth Circuit, (107) and Tenth Circuit (108) apply either the plurality or Justice Kennedy's approach, or both, usually because both tests yield the same result. (109) To discern the correct Seibert holding, most circuit courts follow the Supreme Court's decision in United States v. Marks, holding that
   When a fragmented Court decides a case and no single rationale
   explaining the result enjoys the assent of five Justices, the
   holding of the Court may be viewed as that position taken by those
   Members who concurred in the judgments on the narrowest grounds.

Some courts applying the Marks rule, however, disregard the focus on police intent in Justice Kennedy's concurrence because seven other Justices rejected intent as grounds for determining whether an illegal question-first procedure has occurred. (111)

Intra-circuit splits between whether to apply the plurality approach or Justice Kennedy's approach have also plagued question-first jurisprudence. (112) The Sixth Circuit, for example, held in United States v. Pacheco-Lopez that application of the plurality's test was sufficient, stating that "[r]esolution of whether the police purposefully sought to evade Miranda is unnecessary, as Lopez's statements are inadmissible even if the police didn't purposefully implement a question first-warn later strategy." (113) In United States v. McConer, however, a question-first decision filed only one day later, the Sixth Circuit held that "neither the plurality nor the concurrence in Seibert" demonstrated that police deliberately administered a question-first procedure to McConer. (114) In arriving at its decision, the Court emphasized that "Justice Kennedy's narrower concurrence ... provided the fifth vote to find a Miranda violation in Seibert." (115)

Intra-state splits also exist. (116) In United States v. Hairston, the D.C. Court of Appeals discussed both the plurality approach and Justice Kennedy's approach, and attempted to determine whether the police had conducted a question-first procedure by applying the plurality's test. (117) In contrast, in Edwards v. United States, the D.C. Court of Appeals applied both approaches, reasoning that since "some disagreement concerning the precise analysis that Seibert mandates" and "the statements in this case should have been suppressed under either standard, we need not determine the precise analysis that follows from the opinions in Seibert." (118)

Significantly, circuit cases have demonstrated that the choice between the plurality and Justice Kennedy's approach can yield opposite results. (119) Indeed, in United States v. Sanchez-Gallego, the Court contrasted the analysis present in the plurality approach with Justice Kennedy's approach, and decided that "that the conclusion might be different under the plurality's test in Seibert." (120) Further, in United States v. Zubiate, the Court found that the conduct of United States Immigration and Customs Enforcement agents, who interrogated a suspect for fifteen minutes before providing the warnings, would not satisfy the plurality test but that the statement would satisfy Justice Kennedy's because the conduct was not "calculated." (121) The cumulative effect of such divergent outcomes sows confusion both among police officer and the lower courts.

2. Circuits that Solely Apply Justice Kennedy's Deliberateness Test to the Question-First Procedure Inquiry

Six circuits solely follow Justice Kennedy's view and ask whether the question-first procedure was a deliberate violation of Miranda. Specifically, the Second Circuit, (122) Third Circuit, (123) Fourth Circuit, (124) Fifth Circuit, (125) Eighth Circuit, (126) and Eleventh Circuit (127) conduct this inquiry. Each of these circuits hold that Justice Kennedy's concurrence is controlling because it represents the narrowest grounds of the Seibert majority. These circuits argue that the test stated in Justice Kennedy's concurring opinion is the narrowest grounds because it applies the Supreme Court's "effectiveness" inquiry only to deliberate execution of the question-first procedure. (128)

3. Criticism and Justification of the Plurality Approach Versus Justice Kennedy's Approach

Policy considerations and adherence to stare decisis play a critical role in the criticism and justification of circuit courts' decisions to use solely Justice Kennedy's concurrence. A critic writes that Justice Kennedy's approach cannot deter deliberate execution of the question-first procedure because judges forced to apply a subjective bad faith Miranda test will make disparate and arbitrary admissibility decisions. (129) An alternate view counters that the plurality's factors are no less vague. (130) Moreover, one commentator argues that the intent of the officer is reliably ascertainable because it is a standard inference in evidence that intent may be inferred from actions. (131) Additionally, in United States v. Capers, the Second Circuit justified the requirement that police prove that a question-first procedure was not deliberate by reasoning that Miranda is an exclusionary rule "aimed at deterring lawless conduct by police and prosecution." (132) Another view argues that only an intent-based approach is suited to evaluate an inherently coercive question-first tactic. (133)

Addressing trustworthiness, a commentator observed that the post-Miranda statements would be in danger of being compromised if subject to the potentially coercive pressures of a deliberate question-first procedure. (134) Another commentator argued that Justice Kennedy's reasoning would apply to any confession, since deliberate execution of the question-first procedure can still yield trustworthy statements, and that is distinctly not what Miranda held. (135) Justice O'Connor, in her dissenting opinion, similarly reasoned that a suspect who experienced the exact same interrogation as Seibert, but where the question-first procedure was not deliberate, would not have any corresponding change in the trustworthiness of his statements. (136) Justice O'Connor also argued that intent was impossible to discern. (137) Additionally, at least one critic has suggested that an intent-based approach will perversely incentivize covert execution of question-first procedures, which will be difficult to reveal. (138) Another commentator, however, argued that it is a standard inference in evidence that courts may infer intent from actions. (139)

Interpretation of the Seibert opinions is also crucial to determining which opinion is controlling. Many courts justify choosing Justice Kennedy's concurring opinion as the narrowest ground of Seibert's fragmented majority, because Justice Kennedy's concurring opinion holds that cases where a question-first procedure took place should be reviewed for the effectiveness of the Miranda warning only where the interrogator deliberately used a two-step technique to circumvent Miranda. (140) In contrast, other courts criticize this approach. In United States v. Carrizales-Toledo, the Tenth Circuit argued that Justice Kennedy's proposed holding in his concurrence was rejected by a majority of the Seibert Court. (141) In United States v. Rodriguez-Preciado, a dissenting Ninth Circuit judge explained, "three of the four Justices in the plurality and the four dissenters decisively rejected any subjective [test] ... based on deliberateness on the part of the police." (142) Moreover, the D.C. Court of Appeals argued in Edwards that although Justice Kennedy's test appears narrower because it only applies to the deliberate use of a two-step procedure, within that subset of cases, it is broader because Justice Kennedy's approach would suppress even if a court determined that the Miranda warnings could function effectively. (143) As a result, the D.C. Court of Appeals argues, more statements might be admitted that result from question-first procedures because the plurality's approach only excludes confessions resulting from effective warnings, regardless of the intent of the interrogating officers, whereas Justice Kennedy's approach reaches all intentional applications of the question-first procedure. (144)

The following sections of Part II illustrate both the factors and considerations that the circuit courts use to determine whether instances of question-first interrogation by police were deliberate.

B. Three Circuit Court Approaches to Applying Justice Kennedy's Concurrence

Circuit courts take three general approaches to evaluating whether police deliberately executed a question-first procedure. In the first approach, circuits argue that Justice Kennedy's deliberateness standard lacks explicit factors to consider because the record was clear in Seibert that the interrogating officers deliberately executed a question-first procedure. (145) Circuits using this ad-hoc approach often cherry-pick factors from the plurality or underscore various facts or considerations to justify their evaluations of deliberateness. (146)

In the second approach, courts use the factors stated by the plurality, regardless of whether the failure to administer Miranda warnings during the initial interrogation was deliberate or not, reasoning that "Justice Kennedy uses the same factors as the plurality's approach, but he uses them ... to determine whether police officers deliberately [withhold] Miranda warnings." (147) The application of these factors is still defendant-focused, however, in contrast to Justice Kennedy's inquiry solely into the intent of the interrogating officers. (148)

In the third approach, circuit courts adhere solely to the factors in Justice Kennedy's analysis, as opposed to strict adherence to the plurality's factors or an ad hoc inquiry into the totality of the evidence. (149) The third approach also focuses exclusively on the deliberateness of the police execution of the question-first procedure, as opposed to the second approach's defendant-focused perspective. (150) As an example, in Gonzalez-Lauzan, the Eleventh Circuit examined whether pre-Miranda questioning by police elicited any incriminating statements, whether the officers did not have pre-warned incriminating statements with which to cross-examine Gonzalez-Lauzan to pressure him to repeat them, and whether Gonzalez-Lauzan's post-warning statements related to the substance of his single, brief pre-warning statement. (151)

The circuit courts justify the three approaches to the Seibert factors with respect to the plurality and Justice Kennedy's opinion in different ways. For example, in Gonzalez-Lauzan, the Tenth Circuit prefaced their approach of strict adherence to the factors applied by Justice Kennedy, simply by stating "the two-step technique employed here is of the type that was the narrow focus of Justice Kennedy's opinion." (152) At least one commentator supported this approach, suggesting that courts could hold that absence of one or more of the criteria cited by Justice Kennedy is indicative of willfulness. (153)

In Capers, the Second Circuit examined the totality of the objective and subjective evidence by applying the five plurality factors and examining any other evidence available (154) before inquiring into curative measures. The court stated that all available evidence should be considered when examining whether the officers' actions indicate a deliberate question-first procedure. The court reasoned that both the Fifth and Eleventh Circuits used this approach, and noted Justice Souter's observation that "'the intent of the officer will rarely be as candidly admitted as it was' in Seibert, where the interrogating officer testified ... that he was trained to conduct a question-first procedure." (155) Finally, courts justify the ad hoc approach by stealth omission of any discussion of the use of the suspect's pre-Miranda statements in the suspect's subsequent post-Miranda interrogation. (156)

C. Criteria Used by Circuit Courts to Evaluate Justice Kennedy's Factors and Other Considerations Associated with the Question-First Inquiry

The variance of the preceding circuit approaches results from the inherent difficulty of proving that police deliberately executed a question-first procedure. Moreover, question-first cases usually fall into a grey area between a good-faith failure to administer an earlier Miranda warning and a deliberate execution of the question-first procedure. Unlike Seibert, circuit courts rarely encounter question-first cases in which police admit to deliberate execution of the question-first procedure.

At least one circuit, however, has evaluated a failure to administer Miranda warnings that police admitted were deliberate. (157) Such an admission is significant because the Supreme Court stated that it had to look at facts that demonstrated the question-first procedure, even though the interrogating officer in Seibert admitted intent to use the question-first procedure, "[b]ecause the intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interrogation)." (158) Although both the Third and Eleventh Circuits have considered the admitted intent of police to forgo giving Miranda warnings in question-first cases, (159) in addition to the requisite consideration of other factors, their treatment of police admissions of deliberateness contrasted starkly.

In United States v, Green, the Third Circuit relied on police admissions of intent to withhold Miranda warnings as a sufficient basis for rendering a suspected drug dealer's postwarning statements inadmissible. (160) Given the testimony provided by the interrogation officer "that he intentionally refrained from advising Green of his Miranda rights prior to showing the video," (161) the Third Circuit held that "Seibert dictates that Green's post-Miranda statements (162) which relate to his pre-Miranda admissions are presumptively inadmissible." (163) In examining the police officer's intent to evade Miranda, the court highlighted the police officer's statement that he executed a "strategy" to "not Mirandize [the suspect] until he saw the video," (164) due in part to the officer's prior knowledge of the suspect's familiarity with Miranda. (165) Additionally, in United States v. McBride, the District Court decided that the suspect's post-Miranda statements were inadmissible because the police admitted to deliberate use of the question-first procedure. (166) In Gonzalez-Lauzan, however, the Eleventh Circuit round that the admitted intent of three officers to forgo providing Miranda warnings to a suspect did not require the exclusion of the suspect's subsequent post-warning statements, (167) despite a series of interrogations similar to those conducted by the Third Circuit in Green. (168)

The circuit courts offer various justifications and criticisms in question-first cases involving police admission of a deliberate execution of the question-first procedure. In Green, the interrogating officer openly stated at the suppression hearing that he intentionally refrained from advising the suspect of his Miranda rights prior to showing the video, and the court held that the suspect's post-Miranda statements which relate to his pre-Miranda admissions were inadmissible unless the court determined that the second interrogation session was carried out under sufficiently different circumstances so as to have cured the initial taint. (169) However, in a question-first case where, "[p]rior to the interrogation, the detectives had decided not to provide [the suspect] with Miranda warnings for fear that [the suspect] would again refuse to speak with them," (170) the United States Supreme Court issued a per curiam opinion holding that "no two-step interrogation technique of the type that concerned the Court in Seibert undermined the Miranda warnings [the suspect] received." (171) Generally, however, courts begin their question-first inquiry with the pre-Miranda statement elicited by police use of the question-first procedure. (172) This section therefore focuses on tests that circuit courts have developed to evaluate whether the factors they use are fulfilled.
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Title Annotation:I. Introduction through II.B. Three Circuit Court Approaches to Applying Justice Kennedy's Concurrence, p. 1091-1117
Author:Rodriguez, Joshua I.
Publication:Fordham Urban Law Journal
Date:Mar 1, 2013
Previous Article:Aggregation and urban misdemeanors.
Next Article:Interrogation first, Miranda warnings afterward: a critical analysis of the Supreme Court's approach to delayed Miranda warnings.

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