FIRST DISTRICT APPELLATE PROJECT TRAINING SEMINAR January 21, 2011 MIRANDA BASICS AND CURRENT DEVELOPMENTS

Transcription

1 FIRST DISTRICT APPELLATE PROJECT TRAINING SEMINAR January 21, 2011 MIRANDA BASICS AND CURRENT DEVELOPMENTS Jonathan D. Soglin, Staff Attorney Richelle Becker, Law Clerk Tiffany Gates, Law Clerk January 2011

2 Table of Contents Page Introduction I. Miranda A. Miranda in a Nutshell B. Constitutionally Based; Not Merely Prophylactic C. Miranda Warnings Are Required When the Suspect is Subject to Custodial Interrogation D. Custody for Miranda = Formal Arrest or Restraint on Movement to a Degree Associated With Formal Arrest E. Interrogation F. Exceptions G. Form of Miranda Warnings H. Invocation or Waiver of Rights - Distinct Inquiries I. Invocation J. Waiver of Miranda Rights K. Consequences of Miranda Violation L. Showing Prejudice M. Federal Habeas Review Available

3 INTRODUCTION Two primary constitutional considerations govern the admissibility of defendants confessions and admissions in criminal prosecutions: the voluntariness of the statements and whether they were obtained in violation of Miranda requirements. The voluntariness jurisprudence, rooted in English common law, developed first, with the Supreme Court holding that admission of coerced confessions was unconstitutional. Although an early case based the rule barring admission of coerced confessions on the Fifth Amendment right to remain silent, the Court primarily based the rule on due process considerations. (Dickerson v. United States (2000) 530 U.S. 428, (providing historical account of the law governing the admission of confessions ); Bram v. United States, 168 U.S. 532, 542 (stating voluntariness test is controlled by Fifth Amendment); Brown v. Mississippi (1936) 297 U.S. 278 (coerced confession inadmissible under Due Process Clause).) In the 1960s, a pair of Warren Court decisions changed the focus of much of the inquiry in determining the admissibility of suspects incriminating statements. (Dickerson, 530 U.S. at 434.) First, the Court held that the Fifth Amendment right against self incrimination is incorporated in the Fourteenth Amendment s Due Process Clause and thus applies to the states. (Malloy v. Hogan (1964) 378 U.S. 1, 6-11.) And, famously, in Miranda, the Court held that a defendant s statements made during custodial interrogation are inadmissible in the prosecutor s case in chief unless the officer advised the suspect of his rights (detailed below) and the suspect voluntarily waived those rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Miranda, was presaged by Escobedo v. Illinois (1964) 378 U.S. 478, in which the Court held that a suspect s admissions were inadmissible where, during custodial interrogation, the suspect had requested and been denied the opportunity to consult an attorney and police officers had not properly advised him of his right to remain silent. In 2010, a trio of United States Supreme Court decisions modified or elaborated on important aspects of Miranda law, thus precipitating these materials which outline both the basics of and recent developments in Miranda law. Note that Miranda is an expansive are of law with many aspects to it. It also the subject of countless published decisions, many of which are very fact intensive. An outline like this can only provide one reference point and research should never end here. Cases cited herein are only representative. -1-

4 I. MIRANDA A. Miranda in a Nutshell A defendant s own statements made during custodial interrogation by law enforcement officials are inadmissible in the prosecutor s case in chief unless (1) they were preceded by warnings to the defendant that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed and (2) the defendant voluntarily waived those rights: [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. (Miranda v. Arizona (1966) 384 U.S. 436, 444.) Thus, the initial questions to be asked is whether the defendant was in custody and whether the statements were made in response to interrogation. If there was no custodial interrogation, Miranda does not apply. If there was custodial interrogation, then the questions shift to whether and when the officer gave proper and complete Miranda warnings and whether the suspect waived the Miranda rights. B. Constitutionally Based; Not Merely Prophylactic Over the years, the Court repeatedly referred to the Miranda warnings as prophylactic. [citation] and not themselves rights protected by the Constitution. (Dickerson, 530 U.S. at ) Relying on such language, the Fourth Circuit had held -2-

5 in Dickerson that Miranda protections were not constitutionally required and indeed superseded by a 1966 federal statute, 18 U.S.C. 3501, which stated that confessions shall be admissible in federal criminal prosecutions if they were voluntary. (United States v. Dickerson (1999) 166 F.3d 667, ) The Supreme Court, in an opinion authored by Chief Justice Rehnquist, reversed, holding that section 3501 could not supersede Miranda because the Miranda protections are constitutionally required. (Dickerson v. United States, 530 U.S. at ) As evidence of the rule s constitutional underpinnings, the Court pointed to the facts that it had applied Miranda to state court prosecutions (530 U.S. at 438), it had allowed prisoners to bring alleged Miranda violation before the federal courts in habeas corpus proceedings (530 U.S. at 439, n.3), that Miranda itself had described the question before it as involving the privilege against self-incrimination and the need to give concrete constitutional guideline for law enforcement agencies and courts to follow (530 U.S. at 439 [citing Miranda, 384 U.S. at ] (emphasis added by Dickerson Court)), and the Miranda opinion contains numerous statements indicating that the Court understood itself to be announcing a constitutional rule (530 U.S. at 439, and n. 4). The constitutional foundation of the Miranda protections is the Fifth Amendment privilege against self-incrimination. (See e.g. Miranda, 384 U.S. at 476 ( The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation ); Withrow v. Williams (1993) 507 U.S. 680, 692 (referring to the Fifth Amendment trial right protected by Miranda); and Dickerson, 530 U.S. at 439, fn.4 (collecting references in Miranda to protection of Fifth Amendment) and at 440, fn.5 (collecting citations to other Supreme Court cases referring to Fifth Amendment underpinnings of Miranda). C. Miranda Warnings Are Required When the Suspect is Subject to Custodial Interrogation. Miranda warnings are required when an individual is subject to custodial interrogation. (Miranda v. Arizona (1966) 384 U.S. 436, 439.) Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Id. at p. 444.) D. Custody for Miranda = Formal Arrest or Restraint on Movement to a Degree Associated With Formal Arrest 1. Standard: When determining if a suspect is in custody, the ultimate inquiry is whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125 (per curiam) (citing Oregon v. Mathiason -3-

6 (1977) 429 U.S. 492, 495).) The Court has described the test as inquiring would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112; see also Yarborough v. Alvarado (2004) 541 U.S. 652, [citing Thompson v. Keohane and finding suspect was not in custody because All of these objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave ].) 2. The custody determination is based on the totality of the circumstances. (Stansbury v. California (1994) 511 U.S. 318, 322 ( In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation... ) 3. Appellate Review: Custody Determination is a Mixed Question of Law and Fact to Be Reviewed De Novo. (Thompson v. Keohane (1995) 516 U.S. 99, ) 4. Custody status is an objective test: [T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323.) [A]n officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave. (Id. at 325.) 5. Factors a. Location: A suspect can be considered in custody even when not at the police station. (E.g. Orozco v. Texas (1969) 394 U.S. 324, 327 (suspect was considered under arrest and in custody when questioned in his bedroom in the early hours of the morning because he was not free to leave).) Alternatively, a suspect can be questioned at the police station, in a coercive environment, and still not be considered in custody, as long as he is not placed under formal arrest and his freedom of movement is not restricted in any way. (E.g. Oregon v. Mathiason (1977) 429 U.S. 492 at 496 (where the suspect voluntarily went to the police station, was told he was not under arrest, and was allowed to leave after the police interview).) -4-

7 b. Where Suspect is Already an Inmate, He or She May Not be In Custody for Purposes of Miranda. (1) Prior to Maryland v. Shatzer (2010) U.S., 130 S.Ct. 1213, 1224, the Court had never decided whether incarceration constitutes custody for Miranda purposes. But other courts, including California courts, had held that an incarcerated suspect may not be in custody. (a) (b) The Fourth Circuit held that Miranda did apply to questioning of an inmate unless there had been a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement. (United States v. Conley (4th Cir. 1985) 779 F.2d 970, 973.) California cases had described a broad-based test considering multiple factors: whether the language summoning the defendant from his prison lodging was coercive, whether the physical surroundings of the questioning were unduly coercive, whether the defendant was confronted with evidence of guilt, and whether there was an opportunity given to this person to leave the site of the questioning. (People v. Macklem (2007) 149 Cal.App.4th 674, 678; see also People v. Fradiue (2000) 80 Cal.App.4th 15, 21.) (2) In Shatzer, the Court confronted the question in the context of applying its new rule that a 14-day break in custody ended the presumption that the resumption of questioning by police was coercive. There being a two-and-a-half year break between questioning sessions, the Court in Shatzer had to determine there had been a break in Miranda custody. Although the defendant had been in prison during the entire period in question, the Court found that his release to the general population constituted a break in custody for purposes of Miranda. The Court reasoned that the coercive pressures of concern in Miranda are not present when the suspect is already in prison because (1) once the interrogation ends, they regain the, albeit limited, control they had over their lives, (2) they are not isolated with their accusers, (3) [t]heir detention... is relatively disconnected -5-

8 from their prior unwillingness to cooperate in an investigation, and (4) [t]he former interrogator has no power to increase the duration of incarceration. (130 S.Ct. at ) (3) It is implicit in Shatzer, however, that a prisoner is in custody for purposes of Miranda during the period when he is removed from the general population and taken elsewhere for questioning. (See 130 S.Ct. at 1225, fn.6 ( We distinguish the duration of incarceration from the duration of what might be termed interrogative custody. When a prisoner is removed from the general prison population and taken to a separate location for questioning, the duration of that separation is assuredly dependent upon his interrogators. For which reason once he has asserted a refusal to speak without assistance of counsel Edwards prevents any efforts to get him to change his mind during that interrogative custody ) and Ibid. (referring to the inherently compelling pressures of custodial interrogation end[ing] when [Shatzer] returned to his normal life in the prison).) c. Traffic Stops: Persons temporarily detained pursuant to roadside traffic stops are not considered in custody because of the brief and non-coercive nature of such stops. (Berkemer v. McCarty (1984) 468 U.S. 420, ) However, [i]f a motorist is subject to treatment that renders him in custody for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. (Id. at 440.) Note: The Berkemer holding that a person detained during a routine traffic is not in custody for purposes of Miranda is in tension with the Court s cases defining detained and in custody with nearly identical language regarding the suspect not feeling free to leave. (Compare United States v. Mendenhall (1980) 446 U.S. 544, 554 (holding that a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave ) with Thompson v. Keohane, 516 U.S. at 112 (holding that person is in custody for purposes of Miranda if a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave ).) -6-

9 d. Suspect s Age or Experience with Law Enforcement (1) Yarborough v. Alvarez (2004) 541 U.S. 652, 124 S.Ct (decided under AEDPA): (a) (b) Prior History With Law Enforcement. As a de novo matter, consideration of suspect s prior history with law enforcement is an improper factor. Officers will not likely know the suspect s history. In addition, the relationship between the past history and whether the current encounter is custodial is speculative. And the inquiry turns too much on the suspect s subjective state of mind. (541 U.S. at ) Suspect s Age. State court did not unreasonably decline to consider the suspect s age as a factor. Our opinions applying the Miranda custody test have not mentioned the suspect's age, much less mandated its consideration. The only indications in the Court's opinions relevant to a suspect's experience with law enforcement have rejected reliance on such factors. (541 U.S. at ) (2) J.D.B v. North Carolina, No , Cert. Granted 11/1/2010: (a) (b) QP: Whether a court may consider a juvenile's age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile's position would have felt he or she was not free to terminate police questioning and leave? Note; J.D.B. is on direct review of a state court decision, and thus will not be decided through deferential AEDPA standards the Court applied in Yarborough v. Alvarez. E. Interrogation 1. Miranda protections do not apply to [v]olunteered statements. (Miranda, 384 U.S. at 478; People v. Ray (1996) 13 Cal.4th 313, 337.) -7-

10 2. Miranda warnings are only required when the suspect is subjected to interrogation, which is defined as express questioning or its functional equivalent. (Rhode Island v. Innis (1980) 446 U.S. 291, ) 3. In Innis, the Court defined the functional equivalent of express questioning as any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Id. at 301; see also Arizona v. Mauro (1987) 481 U.S. 520, ; Pennsylvania v. Muniz (1990) 496 U.S. 582, ) 4. In Innis, the Court seemed to clearly distinguish between expressly questioning and the functional equivalent and to only require an inquiry into whether the police conduct was reasonably likely to elicit an incriminating response from the suspect if the case involved words or actions, as opposed to express questioning. (446 U.S. at 301.) Some courts, however, have held that even express questioning does not require Miranda warnings unless the questioning is reasonably likely to elicit an incriminating response. (See e.g. United States v. Bogle (D.C. Cir. 1997) 114 F.3d 1271, 1275 (collecting cases).) (In Muniz, the Court held that certain express questions asked during the booking process were not subject to Miranda. But this was not because the Court found such express questions were not interrogation, but because the Court was recognizing a routine booking question exception to Miranda for biographical data. (Muniz, 496 U.S. at 601.)) 5. Functional equivalent: The functional equivalent of express questioning can be any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. (Innis, 446 U.S. at 301.) The determination of whether an officer s statement is the functional equivalent of interrogation is a highly factual inquiry. A sampling of decisions are provided. -8-

11 a. In Innis, while the defendant was being transported to the police station, one police officer said to another that he hoped police would continue searching for the missing gun because a student from a school for the disabled could pick it up and get hurt. (Innis, 446 U.S. at ) The defendant then volunteered the weapon's location. The Supreme Court held this was not interrogation because nothing from the record indicated the officers were aware the defendant was particularly susceptible to an appeal to his conscience. (Id. at 302.) b. In People v. Clark (1993) 5 Cal.4th 950, the defendant was being transported to the hospital by the police to obtain a blood sample. He had previously invoked his Miranda rights. He asked the officers what the penalty was for the murder for which he was under arrest, stating: What can someone get for something like this, thirty years? (Id. at 982.) The officer responded that he had never seen anyone serve more than seven and a half years unless the person was a mass murderer. Following this exchange, the defendant confessed. (Ibid.) The Court held that this conversation did not constitute an interrogation: Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. (Id. at 985.) c. The California Supreme Court found no interrogation where detectives told the defendant they knew he committed murder because they found his prints at the scene. This brief statement was not interrogation because it was not phrased as a question, and did not call for an incriminating response. A brief statement informing an in-custody defendant about the evidence that is against him is not the functional equivalent of interrogation because it is not the type of statement likely to elicit an incriminating response. (People v. Haley (2004) 34 Cal.4th 283, 302.) 6. Miranda Only Applies to Interrogation by Law Enforcement Officials or Their Agents. a. Miranda: By custodial interrogation, we mean questioning initiated by law enforcement officers... (384 U.S. at 444 (emphasis added).) -9-

12 b. Miranda does not apply to questioning by undercover officers: A police officer disguised as an inmate was not interrogating the defendant when (deceptively) engaging him in conversation about the murder he was suspected of. It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. (Illinois v. Perkins (1990) 496 U.S. 292, 297.) Where the suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced. (Id. at 299.) In Perkins, the defendant was serving a prison sentence on an unrelated crime when the police sent in an undercover agent to investigate him for a murder. (Id. at 295.) Since murder charges had not been filed, Perkins right to counsel had not yet attached, allowing information from his unwarned confession to be used against him. (Note that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime, so this situation may be anomalous. (Id. at 299; cf. Massiah v. U.S. (1964) 377 U.S. 201, 207 (where defendant s incriminating statement to an informant could not be used at trial because the conversation took place post-indictment after his right to counsel attached).) c. Statements to Jailhouse Visitors - Miranda does not apply: (1) Officer s knowledge that allowing the visitor (defendant s wife) to see defendant might illicit an incriminatory statement does not rise to the level of coercion or a psychological ploy that Miranda protects against. (Arizona v. Mauro (1987) 481 U.S. 520, 530.) (2) Defendant s voluntary conversations with jailhouse visitor (grandmother) were not the functional equivalent of interrogation, even when detectives took the initiative to bring the visitor to see the defendant and recorded the conversation. (People v. Thornton (2007) 41 Cal.4th 391, 433.) (3) Where defendant had repeatedly asked to see his father, defendant s voluntary jailhouse conversation with his father was not police interrogation subject to Miranda requirements People v. Mayfield (1997) 14 Cal.4th 668, 758.) -10-

13 F. Exceptions (4) It is not improper for the police to grant defendant s relatives special visitation privileges on the unspoken hope that defendant might incriminate himself. (People v. Medina (1990) 51 Cal.3d 870, 892.) d. Psychiatrists/Psychologists 1. Booking Question: (1) Miranda applies to prosecutor s psychiatrist (see e.g. People v. Ghent (1987) 43 Cal.3d 739, 750); (2) Miranda requirements apply to statements to courtappointed psychiatrist made during competency examination. In the absence of valid wavier, such statements can only be used at competency hearing. (Estelle v. Smith (1981) 451 U.S. 454, ) In Penry v. Johnson (2001) 532 U.S. 782, , a federal habeas case decided under AEDPA, the Court found that the state court decision finding no Fifth Amendment violation was not contrary to, or unreasonable application of Estelle where the defendant made his mental health an issue, the defendant s own counsel sought the psychiatric examination, the defendant first elicited the challenged statement during examination of his own witness, and the challenged statements were made during a competency examination conducted during a prior unrelated case and prior to the commission of the charged offenses. (3) Miranda applies to civil investigator (Mathis v. United States (1968) 391 U.S. 1 (IRA agents)); (4) [A] probationary defendant s general obligation to appear and answer questions truthfully does not convert otherwise voluntary statements into compelled statements. (People v. Macias (1997) 16 Cal.4th 739, 755 (citing Minnesota v. Murphy (1984) 465 U.S. 420, ).) a. In Pennsylvania v. Muniz (1990) 496 U.S. 582, a four-justice plurality recognized a routine booking question exception which exempts -11-

14 from Miranda's coverage questions to secure the biographical data necessary to complete booking or pretrial services. (Id. at 601, plur. opn. of Brennan, J.) However, this exception does not include questions asked during booking that are designed to elicit incriminatory admissions. (Id. at 602, fn. 14.) In Muniz, where the defendant had been tried and convicted of DUI, the Court held that an answer to a question regarding the date of the defendant s sixth birthday was inadmissible (Id. at 600), but answers to questions eliciting his name, address, height, weight, eye color, date of birth, and current age were admissible (Id. at ). b. In People v. Morris (1987) 192 Cal.App.3d 380, a jailer asked a defendant during booking, Who are you accused of killing?, and received the answer, I killed my sister-in-law. ( Id. at p. 388.) The jailer insisted his question was solely for the purpose of jail security and not to elicit information from defendant that might be used against him. ( Id.) The Court in Morris observed, The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspect s responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda admonishments. (Id. at ) 2. Public Safety: a. Police officers may ask incriminatory questions to a suspect when public safety is at risk. (New York v. Quarles (1984) 467 U.S. 649, 657 (officer asked an apprehended rape suspect where is the gun? after witnesses saw the suspect discard the gun in a grocery store, placing the public in danger and creating immediate necessity of finding the gun). b. In United States v. Carrillo (9th Cir. 1994) 16 F.3d 1046, the Ninth Circuit held that the public safety exception applied to a pre-search question regarding whether a detainee was in possession of drugs or needles. (16 F.3d at 1049.) But in People v. Cressy (1996) 47 Cal.App.4th 981, then-court of Appeal Justice Corrigan explained that the public safety questions must be narrowly tailored to prevent potential harm and [q]uestions about needles or other -12-

15 potentially contaminated sharp objects would be permissible. (47 Cal.App.4th at 989.) But, [q]uestions about drugs in general, most firearms or similar kinds of seizable, but not immediately dangerous, items would fall outside this narrow exception. (Id.) In People v. Ross (2008) 162 Cal.App.4th 1184, 1187, 1191, the Court did not reach any conclusion about the propriety of questions about possession of drugs. In that case, the police officer found a knife but no drugs. (Id. at 1187.) On appeal, the defendant only challenged the police officers question about weapons: [defendant] contends that she had a Fifth Amendment right not to disclose her possession of the knife (Id. at 1191). The Court of Appeal, citing the public safety exception to Miranda, held only that the police officer properly inquired whether she possessed any weapons. (Ibid.) The court in Ross said nothing about propriety of questions about drugs. 3. California s Rescue Doctrine: The rescue doctrine is analogous to (but not subsumed within) the public safety exception. This doctrine is independent from the public safety exception because it pre-dates Quarles and has its own test. (People v. Davis (2009) 46 Cal.4th 539, ) Also, this doctrine applies specifically in kidnapping or missing-person cases, [u]nder circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the questions may incriminate the witness. (Id. at 594.) In Davis, suspect Richard Allen Davis was in police custody for kidnapping Polly Klass, and had invoked his Miranda rights. (Id. at 591.) Four days after invocation of his right to remain silent and request for counsel, a detective reinititated contacted with Davis in jail, asking him to disclose where Polly s body was. (Id.) The Court ruled that the admission and evidence that followed were admissible under the rescue doctrine, despite the fact that Polly had been missing for 64 days, and in past cases the doctrine was applied when the victim had been missing for a much shorter time. (Id. at 594.) [T]he length of time a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reasonably possible. (Id.) G. Form of Miranda Warnings 1. Elements of Warnings (see Miranda, 386 U.S. at 479.) a. that he has the right to remain silent -13-

16 b. that anything he says can be used against him in a court of law, c. that he has the right to the presence of an attorney, and d. that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. 2. Warnings Need Not be Verbatim as Stated in Miranda. a. State court erred in holding that the warnings were inadequate simply because of the order in which they were given. (California v. Prysock (1981) 453 U.S. 355, 361.) b. The Court deemed the Miranda advice adequate where the Miranda form stated, in part, that an attorney will be appointed for you, if you wish, if and when you go to court. (Duckworth v. Eagan (1989) 492 U.S. 195, 198, 201.) The Court reasoned that the advice (1) accurately described the procedure in that state, (2) Miranda does not require that the jail have an attorney available on call to advise prisoners and, thus, Miranda only requires that questioning cease unless the suspect waives his rights. (Id. at 204.) c. The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed. (Florida v. Powell (2010) 130 S.Ct. 1195, 1204.) In Powell, the suspect was advised: You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview. (130 S.Ct. at 1200 (emphasis added).) Relying on Duckworth, the Court in Powell, found the advisements sufficient, concluding that the suspect would not understand the advice to mean that the he could consult an attorney before each question but that he would be alone with the interrogators when actually answering the questions. (Id. at 1205.) In context... the term before merely conveyed when Powell's right to an attorney became effective-namely, before he answered any questions at all. Nothing in the words used indicated that counsel's presence would be restricted after the questioning commenced. (Ibid.) -14-

17 H. Invocation or Waiver of Rights: Distinct Inquiries. As explained in Berghuis v. Thompkins (2010) 130 S.Ct. 2250, the invocation of Miranda rights is a distinct inquiry from the question of whether there was a valid waiver of rights. In Berghuis, the defendant argued separately that his statements were inadmissible because he actually invoked his right to remain silent (130 S.Ct. at 2259) and because any he did not voluntarily waive his right to remain silent (Id. at ) These are distinct questions: Even absent the accused's invocation of the right to remain silent, the accused s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived [Miranda] rights when making the statement. (Id. at 2260 (citing North Carolina v. Butler (1979) 441 U.S. 369, 373).) I. Invocation 1. Right to Counsel. a. Once a suspect has requested counsel, interrogation must stop until an attorney is provided, unless the suspect himself initiates further communication. (See Edwards v. Arizona (1981) 451 U.S. 477, ) Edwards rule not violated where suspect initiates the further conversation. (Oregon v. Bradshaw (1983) 462 U.S. 1039, (plurality).) b. In order to receive Edwards protection, invocation of the right to counsel must be unambiguous, or sufficiently clear that a reasonable officer under the circumstances would understand that the suspect is requesting an attorney. (Davis v. U.S. (1994) 512 U.S. 452, 459.) If a suspect s request to have counsel present is ambiguous or equivocal, the police are not required to stop questioning or ask clarifying questions. (Davis, supra 512 U.S. 452 at 459.) (1) Maybe I should talk to a Lawyer - no invocation. (Id. at 455, 459) (2) I think it'd probably be a good idea for me to get an attorney - no invocation (People v. Bacon (2010) 50 Cal.4th 1082, 1105.) (3) if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing - no -15-

18 invocation. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1116, ) c. The Edwards Presumption: If further contact is initiated by police after the suspect has invoked his right to have counsel present, it is presumed that any subsequent waiver is involuntary. (Edwards, 451 U.S. at 485; Arizona v. Roberson (1988) 486 U.S. 675, 681.) d. Maryland v. Shatzer s 14-day Shelf-Life of Edward s Presumption. In 2010, the Court held that the Edwards presumption does not apply when there has been a 14 day break in custody. (Maryland v. Shatzer (2010) U.S., 130 S.Ct. 1213, 1223.) In Shatzer, the defendant had been in prison custody on an unrelated offense. He refused to talk to investigators without an attorney present. Over two years later, another police officer questioned the defendant about the same events about which the defendant had previously invoked Miranda. Under the old Edwards rule, the defendant s waiver of Miranda rights would be presumed to be involuntary because the conversation was at the behest of law enforcement. However, the Court fashioned a new rule, holding that when there has been a 14-day break in custody, the Edwards presumption ends. In this instance, a break in custody of two and a half years had occurred, despite the fact that the defendant remained in prison custody on an unrelated offense the entire time. (Ibid. at ) 2. Right to Remain Silent: The Supreme Court recently held that, like the requirement of an unequivocal invocation of the right to counsel (Davis, 512 U.S. at 459), the invocation of the right to remain silent must also be unambiguous. (Berghuis v. Thompkins, supra, 130 S. Ct at 2260.) Requiring a suspect to unambiguously assert his right to remain silent is designed to remove the burden on law enforcement inherent in having to guess at whether a suspect is invoking his Miranda rights or not. (Id.) In Berghuis, the defendant did not unambiguously invoke his right to remain silent by not saying anything for a sufficient period of time. (Id. at ) J. Waiver of Miranda Rights 1. A suspect may waive his Miranda rights so long as his waiver is made voluntarily, knowingly, and intelligently. (Miranda, 384 U.S. at 444.) The Court reassert[ed] the high standards of proof for the waiver of constitutional rights. (Id. at 475 (citing Johnson v. Zerbst (1938) 304 U.S. -16-

19 458, 464 (defining waiver as intentional relinquishment or abandonment of a known right or privilege )).) 2. A heavy burden is on the prosecution to establish that the defendant knowingly and intelligently waived his or her rights. (Id. at 475.) 3. A waiver is valid if, under a totality of circumstances test, the court finds both an uncoerced choice and the requisite level of comprehension. (Moran v. Burbine (1986) 475 U.S. 412, 421.) The inquiry into the facts and circumstances of the case may include the background, experience, and conduct of the accused. (Zerbst, 304 U.S. 458 at 464.) The state s burden to establish waiver is by a preponderance of the evidence. (Berghuis v. Thompkins (2010) 130 S.Ct. 2250, 2261.) [T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (Burbine, supra, 475 U.S. 412 at 421.) [T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. (Id.) 4. Express v. Implied Waiver a. Express: An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. (North Carolina v. Butler (1979) 441 U.S. 369, 373.) b. Implied: In some cases waiver can be clearly inferred from the actions and words of the person being interrogated. (Id. at 374) The Miranda court held a valid waiver will not be presumed simply from the silence of the accused after warnings are given... (Miranda, 384 U.S. 436 at 475), while Butler clarified that silence can constitute waiver when coupled with an understanding of the rights and a course of conduct indicating waiver. (Butler, 441 U.S. 369 at 373.) The giving of proper Miranda warnings coupled with an uncoerced statement, is insufficient to establish a waiver of Miranda rights. (Berghuis, 130 S.Ct. at 2261.) The prosecution must also show that the suspect understood his or her rights. (Id.) -17-

20 c. In Berghuis, the court recently found an implicit and valid waiver of Miranda when a suspect made only a few verbal responses and occasionally nodded his head over the course of a three-hour interrogation. (Thompkins, supra, 130 S.Ct at 2257.) The Court held the suspect engaged in a course of conduct indicating waiver by not clearly invoking Miranda, not remaining completely silent, and by not offering any evidence that he did not understand the written copy of his Miranda rights provided to him by officers. (Id. at 2262.) K. Consequences of Miranda Violation 1. Inadmissible in Case in Chief. Statements elicited in violation of Miranda are inadmissible in the prosecution's case-in-chief. (See Stansbury v. California (1994) 511 U.S. 318, 322 (per curiam).) 2. May be Used to Impeachment: a. A statement taken in violation of Miranda may not be admissible against a defendant in the prosecutions case-in-chief, but the statement can be used to impeach the defendant if he chooses to testify. This exception was designed to prevent Miranda from being used a shield when committing perjury. (Harris v. New York (1971) 401 U.S. 222, 225; Michigan v. Harvey (1990) 494 U.S ) b. If a suspect, after given proper Miranda warnings, opts to exercise his right to remain silent, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Doyle v. Ohio (1976) 426 U.S. 610, 618.) 3. Physical Fruits Not Suppressed: failure to give Miranda warnings does not require suppression of physical fruits of unwarned voluntary statements. (United States v. Patane (2004) 542 U.S. 630, ) 4. Subsequent Statements: A warned subsequent statement made after an unwarned statement may be admissible, although the unwarned statement must be suppressed. a. In Oregon v. Elstad (1985) 470 U.S. 298, 300, the Court rejected application of the Wong Sun v. United States (1963) 371 U.S. 471, fruit-of-the-poisonous-tree doctrine in analyzing the admissibility -18-

21 of subsequent warned statements made after unwarned statements. Subsequent statements are analyzed solely on the basis of whether they are knowing and voluntary. (470 U.S. at 309.) [A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. (470 U.S. at 318.) b. Missouri v. Seibert (2004) 542 U.S. 600: two-step interrogations can violate Miranda. (1) In Seibert, the officers intentionally interrogated the suspect without Miranda warnings. After the suspect confessed, the officer s Mirandized him, obtained a waiver, and the defendant again confessed. A majority of the Court found this process to violate Miranda. (2) Although the Supreme Court was fractured on this point, most lower courts read Seibert to hold that the second statement is inadmissible under Miranda only if there was a deliberate intent to evade the Miranda requirements in connection with the first statement. (See e.g. People v. Rios (2009) 179 Cal.App.4th 491, 505 ( Although the plurality would consider all two-stage interrogations eligible for a Seibert inquiry, Justice Kennedy's opinion narrowed the Seibert exception to those cases involving deliberate use of the two-step procedure to weaken Miranda's protections ); People v. Camino (2010) 188 Cal.App.4th 1359, 1369, pet. for rev. pending in No. S187857; United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157; but see United States v. Carrizales-Toledo (10th Cir.2006) 454 F.3d 1142; see also Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1519, (2008) (collecting cases).) (3) Standard of review for question of whether two-step interrogation was deliberate. (Camino, 188 Cal.App.4th at (factual inquiry subject to substantial evidence test).) L. Showing Prejudice: Admission of evidence in violation of Miranda is reversible unless the prosecution can show the error was harmless beyond a reasonable doubt. (People v. Samayoa (1997) 15 Cal.4th 795, 831; People v. Johnson (1993) 6-19-

22 Cal.4th 1, 33 (citing Arizona v. Fulminante (1991) 499 U.S. 279, 309 and Chapman v. California (1967) 386 U.S. 18, 24).) M. Federal Habeas Review Available. In Stone v. Powell (1976) 428 U.S. 465, the Court federal habeas review of Fourth Amendment claims is not available if the defendant had a full and fair chance to litigate the claim in state court. Stone's restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda v. Arizona (1966) 384 U.S (Withrow v. Williams (1993) 507 U.S. 680, ) -20-