Admissibility Statements Before and After Advisement of Miranda Rights

In Oregon v. Elstad (1985) 470 U.S. 298 and Missouri v. Seibert (2004) 542 U.S. 600, the United States Supreme Court discussed the admissibility of a defendant's inculpatory statements made before and after advisement of Miranda rights. Oregon v. Elstad, held that a suspect who responds "to unwarned yet uncoercive questioning" may later waive his rights and confess after being "given the requisite Miranda warnings." (Elstad, supra, 470 U.S. at p. 318.) If the suspect's unwarned statement was voluntary, the "relevant inquiry is whether, in fact, the second statement was also voluntarily made." (Ibid.) "As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative." (Ibid.) Elstad did not, however, "condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him." (Id. at p. 317.) "When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession." (Elstad, supra, 470 U.S. at p. 310.) In Missouri v. Seibert, an officer "testified that he made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.' " (Seibert, supra, 542 U.S. at pp. 605-606.) Employing this "question-first practice" (id. at p. 611), the interrogating officer left the defendant alone in an interview room at the police station for 15 to 20 minutes, then "questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating" a suggestive, accusatory remark (id. at pp. 604-605). After the defendant confessed and was given a 20-minute break, the officer read her the Miranda warnings, resumed the questioning by mentioning their previous conversation, "and confronted her with her prewarning statements." (Siebert, at p. 605.) A divided Supreme Court held the defendant's postwarning statements were inadmissible. (Seibert, supra, 542 U.S. at pp. 617, 622.) Justice Souter's plurality opinion focused on whether "it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires" (id. at pp. 611-612), noting that the giving of midstream Miranda warnings "without expressly excepting the statement just given, could lead to an entirely reasonable inference that what the accused has just said will be used, with subsequent silence being of no avail" (Siebert, at p. 613). Justice Kennedy's concurring opinion expressed his view that the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations," was too broad. (Seibert, supra, 542 U.S. at pp. 621-622.) Justice Kennedy noted that in Elstad, "the postwarning statements could be introduced against the accused because 'neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression' given the facts of that case." (Siebert, at pp. 619-620.) With these goals in mind, Justice Kennedy observed that a deliberate two-step technique intended to violate Miranda did "not serve any legitimate objectives" and presented inherent temptations for police abuse (such as the use of a defendant's prewarning statement to obtain an incriminating postwarning statement). (Siebert, at pp. 620-621.) Justice Kennedy concluded: "I would apply a narrower test applicable only in the infrequent case ... in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (Id. at p. 622.) "If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures 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 of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Ibid.) Because Justice Kennedy "concurred in the judgment on the narrowest grounds" (Marks v. U.S. (1977) 430 U.S. 188), his concurring opinion represents the Seibert holding. Numerous courts have reached this same conclusion. (People v. Rios (2009) 179 Cal.App.4th 491, 505 101 Cal.Rptr.3d 713; see also cases cited in United States v. Carter (2d Cir. 2007) 489 F.3d 528, 535; United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158 (Williams).) The only exception brought to our attention is United States v. Carrizales-Toledo (10th Cir. 2006) 454 F.3d 1142, where the appellate court pointed out that both the Seibert plurality and the four dissenting justices expressly rejected Justice Kennedy's focus on "the intent of the interrogating officer." (Id. at pp. 1150-1151.) The Seibert plurality focused on objective factors "because the intent of the officer will rarely be as candidly admitted as it was" there. (Seibert, supra, 542 U.S. at p. 616, fn. 6.) The plurality suggested the following objective facts as potentially relevant to "whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id. at p. 615.) Nonetheless, although the Seibert plurality took an objective approach, its "effectiveness" test is broad enough to encompass Justice Kennedy's conclusion that, when a deliberate two-step strategy has been used (i.e., a tactic designed to undercut the effectiveness of Miranda warnings), a defendant's postwarning statements must be excluded absent curative measures. (Seibert, supra, 542 U.S. at p. 622.) "Justice Kennedy did not articulate how a court should determine whether an interrogator used a deliberate two-step strategy." (Williams, supra, 435 F.3d at p. 1158.) Williams suggested an answer to this question. In Williams's view, "courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." (Ibid.) "Such objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." (Id. at p. 1159.) "In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda ... , the scope of our review is well established. 'We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' " (People v. Bradford, supra, 14 Cal.4th at pp. 1032-1033.) " 'Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained , we " 'give great weight to the considered conclusions' of a lower court that has previously reviewed the same evidence." ' " (People v. Whitson (1998) 17 Cal.4th 229, 248 70 Cal.Rptr.2d 321, 949 P.2d 18.) In Carter v. State (Tex.Crim.App. 2010) 309 S.W.3d 31, the court stated: "As an initial matter, we note that Justice Kennedy provided no guidance on how to conduct or review a deliberateness determination. We thus consider how various courts have treated such issues. In United States v. Stewart (7th Cir. 2008) 536 F.3d 714, 719, the Seventh Circuit noted that 'there is not yet a general consensus among the circuits about the standard of review that applies to Seibert-deliberateness determinations, but the trend appears to be in the direction of review for clear error.' It explained that the 'question of whether the interrogating officer deliberately withheld Miranda warnings will invariably turn on the credibility of the officer's testimony in light of the totality of the circumstances surrounding the interrogation. This is a factual finding entitled to deference on appeal' and reviewed only for clear error. Numerous other jurisdictions have applied this same standard to the 'deliberateness' question in addressing 'question first, warn later' scenarios." (Id. at pp. 38-39.) Carter cited several other cases which treated the lower court's determination of deliberateness as a factual finding entitled to deference, as well as Anderson v. Bessemer City (1985) 470 U.S. 564, where the Supreme Court held the trial court's "finding of intentional discrimination is a finding of fact" (id. at p. 573), and that such a finding of intent " 'shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge ... the credibility of the witnesses' " (ibid.). Given Justice Kennedy's focus in Seibert on the subjective intent of the interrogating officer(s), we agree the trial court's determination of deliberateness is a factual finding entitled to deference. As discussed above, California reviewing courts are bound by the trial court's factual findings if supported by substantial evidence (as compared to the clear error standard applicable in federal courts), and we must accord " ' " 'great weight' " ' " to the trial court's conclusions. (People v. Whitson, supra, 17 Cal.4th at p. 248.)