OPINION OF SOUTER, J.
MISSOURI V. SEIBERT
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-1371
MISSOURI, PETITIONER
v. PATRICE
SEIBERT
on writ of certiorari to the supreme court of
missouri
[June 28, 2004]
Justice Souter announced the
judgment of the Court and delivered an opinion, in which Justice
Stevens, Justice Ginsburg, and Justice Breyer join.
This case tests a police protocol
for custodial interrogation that calls for giving no warnings of
the rights to silence and counsel until interrogation has produced
a confession. Although such a statement is generally inadmissible,
since taken in violation of
Miranda v.
Arizona,
384 U.S.
436 (1966), the interrogating officer follows it with
Miranda warnings and then leads the suspect to cover the
same ground a second time. The question here is the admissibility
of the repeated statement. Because this midstream recitation of
warnings after interrogation and unwarned confession could not
effectively comply with
Miranda’s constitutional
requirement, we hold that a statement repeated after a warning in
such circumstances is inadmissible.
I
Respondent Patrice Seibert’s
12-year-old son Jonathan had cerebral palsy, and when he died in
his sleep she feared charges of neglect because of bedsores on his
body. In her presence, two of her teenage sons and two of their
friends devised a plan to conceal the facts surrounding Jonathan’s
death by incinerating his body in the course of burning the
family’s mobile home, in which they planned to leave Donald Rector,
a mentally ill teenager living with the family, to avoid any
appearance that Jonathan had been unattended. Seibert’s son Darian
and a friend set the fire, and Donald died.
Five days later, the police
awakened Seibert at 3 a.m. at a hospital where Darian was being
treated for burns. In arresting her, Officer Kevin Clinton followed
instructions from Rolla, Missouri, officer Richard Hanrahan that he
refrain from giving
Miranda warnings. After Seibert had
been taken to the police station and left alone in an interview
room for 15 to 20 minutes, Hanrahan questioned her without
Miranda warnings for 30 to 40 minutes, squeezing her arm
and repeating “Donald was also to die in his sleep.” App. 59
(internal quotation marks omitted). After Seibert finally admitted
she knew Donald was meant to die in the fire, she was given a
20-minute coffee and cigarette break. Officer Hanrahan then turned
on a tape recorder, gave Seibert the
Miranda warnings, and
obtained a signed waiver of rights from her. He resumed the
questioning with “Ok, ’trice, we’ve been talking for a little while
about what happened on Wednesday the twelfth, haven’t we?,” App.
66, and confronted her with her prewarning statements:
Hanrahan: “Now, in discussion you told us, you
told us
that there was a[n] understanding about
Donald.”
Seibert: “Yes.”
Hanrahan: “Did that take place earlier that
morning?”
Seibert: “Yes.”
Hanrahan: “And what was the understanding
about
Donald?”
Seibert: “If they could get him out of the
trailer, to take him out of the trailer.”
Hanrahan: “And if they couldn’t?”
Seibert: “I, I never even thought about it. I
just figured
they would.”
Hanrahan: “ ’Trice, didn’t you tell me
that he was
supposed to die in his sleep?”
Seibert: “If that would happen, ’cause he was
on that
new medicine, you know … .”
Hanrahan: “The Prozac? And it makes him
sleepy. So
he was supposed to die in his sleep?”
Seibert: “Yes.”
Id., at 70.
After being charged with first-degree murder
for her role in Donald’s death, Seibert sought to exclude both her
prewarning and postwarning statements. At the suppression hearing,
Officer Hanrahan 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.” App. 31–34. He
acknowledged that Seibert’s ultimate statement was “largely a
repeat of information … obtained” prior to the warning.
Id., at 30.
The trial court suppressed the prewarning
statement but admitted the responses given after the
Miranda recitation. A jury convicted Seibert of
second-degree murder. On appeal, the Missouri Court of Appeals
affirmed, treating this case as indistinguishable from
Oregon v.
Elstad,
470
U. S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002)
(not released for publication).
The Supreme Court of Missouri reversed,
holding that “[i]n the circumstances here, where the interrogation
was nearly continuous, … the second statement, clearly the product
of the invalid first statement, should have been suppressed.” 93
S. W. 3d 700, 701 (2002). The court distinguished
Elstad on the ground that warnings had not intentionally
been withheld there, 93 S. W. 3d, at 704, and reasoned that
“Officer Hanrahan’s intentional omission of a
Miranda
warning was intended to deprive Seibert of the opportunity
knowingly and intelligently to waive her
Miranda rights,”
id., at 706. Since there were “no circumstances that would
seem to dispel the effect of the
Miranda violation,” the
court held that the postwarning confession was involuntary and
therefore inadmissible.
Ibid. To allow the police to
achieve an “end run” around
Miranda, the court explained,
would encourage
Miranda violations and diminish
Miranda’s role in protecting the privilege against
self-incrimination. 93 S. W. 3d, at 706–707. One judge
dissented, taking the view that
Elstad applied even though
the police intentionally withheld
Miranda warnings before
the initial statement, and believing that “Seibert’s unwarned
responses to Officer Hanrahan’s questioning did not prevent her
from waiving her rights and confessing.” 93 S. W. 3d, at 708
(opinion of Benton, J.).
We granted certiorari,
538 U. S. 1031 (2003),
to resolve a split in the Courts of Appeals. Compare
United
States v.
Gale, 952 F. 2d 1412, 1418 (CADC 1992)
(while “deliberate ‘end run’ around
Miranda” would provide
cause for suppression, case involved no conduct of that order);
United States v.
Carter, 884 F. 2d 368, 373
(CA8 1989) (“
Elstad did not go so far as to fashion a rule
permitting this sort of end run around
Miranda”), with
United States v.
Orso, 266 F. 3d 1030,
1034–1039 (CA9 2001) (en banc) (rejecting argument that “tainted
fruit” analysis applies because deliberate withholding of
Miranda warnings constitutes an “improper tactic”);
United States v.
Esquilin, 208 F. 3d 315,
319–321 (CA1 2000) (similar). We now affirm.
II
“In criminal trials, in the
courts of the United States, wherever a question arises whether a
confession is incompetent because not voluntary, the issue is
controlled by that portion of the Fifth Amendment … commanding that
no person ‘shall be compelled in any criminal case to be a witness
against himself.’ ”
Bram v.
United States,
168 U. S. 532,
542 (1897). A parallel rule governing the admissibility of
confessions in state courts emerged from the Due Process Clause of
the Fourteenth Amendment, see,
e.g.,
Brown v.
Mississippi,
297 U. S. 278 (1936),
which governed state cases until we concluded in
Malloy v.
Hogan, 378 U. S. 1, 8 (1964),
that “[t]he Fourteenth Amendment secures against state invasion the
same privilege that the Fifth Amendment guarantees against federal
infringement—the right of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own will, and to
suffer no penalty … for such silence.” In unifying the Fifth and
Fourteenth Amendment voluntariness tests,
Malloy “made
clear what had already become apparent—that the substantive and
procedural safeguards surrounding admissibility of confessions in
state cases had become exceedingly exacting, reflecting all the
policies embedded in the privilege” against self-incrimination.
Miranda, 384 U. S., at 464.
In
Miranda, we explained
that the “voluntariness doctrine in the state cases … encompasses
all interrogation practices which are likely to exert such pressure
upon an individual as to disable him from making a free and
rational choice,”
id., at 464–465. We appreciated the
difficulty of judicial enquiry
post hoc into the
circumstances of a police interrogation,
Dickerson v.
United States,
530 U. S. 428, 444
(2000), and recognized that “the coercion inherent in custodial
interrogation blurs the line between voluntary and involuntary
statements, and thus heightens the risk” that the privilege against
self-incrimination will not be observed,
id., at 435.
Hence our concern that the “traditional
totality-of-the-circumstances” test posed an “unacceptably great”
risk that involuntary custodial confessions would escape detection.
Id., at 442.
Accordingly, “to reduce the risk of a
coerced confession and to implement the Self-Incrimination Clause,”
Chavez v.
Martinez,
538 U. S. 760, 790
(2003) (Kennedy, J., concurring in part and dissenting in part),
this Court in
Miranda concluded that “the accused must be
adequately and effectively apprised of his rights and the exercise
of those rights must be fully honored,” 384 U. S., at 467.
Miranda conditioned the admissibility at trial of any
custodial confession on warning a suspect of his rights: failure to
give the prescribed warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained.[
Footnote
1] Conversely, giving the warnings and getting a waiver has
generally produced a virtual ticket of admissibility; maintaining
that a statement is involuntary even though given after warnings
and voluntary waiver of rights requires unusual stamina, and
litigation over voluntariness tends to end with the finding of a
valid waiver. See
Berkemer v
. McCarty,
468 U. S. 420, 433,
n. 20 (1984) (“[C]ases in which a defendant can make a
colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities
adhered to the dictates of
Miranda are rare”). To point
out the obvious, this common consequence would not be common at all
were it not that
Miranda warnings are customarily given
under circumstances allowing for a real choice between talking and
remaining silent.
III
There are those, of course, who
preferred the old way of doing things, giving no warnings and
litigating the voluntariness of any statement in nearly every
instance. In the aftermath of
Miranda, Congress even
passed a statute seeking to restore that old regime, 18 U.
S. C. §3501, although the Act lay dormant for years until
finally invoked and challenged in
Dickerson v.
United
States,
supra.
Dickerson reaffirmed
Miranda and held that its constitutional character
prevailed against the statute.
The technique of interrogating in
successive, unwarned and warned phases raises a new challenge to
Miranda. Although we have no statistics on the frequency
of this practice, it is not confined to Rolla, Missouri. An officer
of that police department testified that the strategy of
withholding
Miranda warnings until after interrogating and
drawing out a confession was promoted not only by his own
department, but by a national police training organization and
other departments in which he had worked. App. 31–32. Consistently
with the officer’s testimony, the Police Law Institute, for
example, instructs that “officers may conduct a two-stage
interrogation… . At any point during the pre-
Miranda
interrogation, usually after arrestees have confessed, officers may
then read the
Miranda warnings and ask for a waiver. If
the arrestees waive their
Miranda rights, officers will be
able to repeat any
subse-quent incriminating statements
later in court.” Police Law Institute, Illinois Police Law Manual
83 (Jan. 2001–Dec. 2003),
http://www.illinoispolicelaw.org/training/lessons/ ILPLMIR.pdf (as
visited Dec. 31, 2003, and available in the Clerk of Court’s case
file) (hereinafter Police Law Manual) (emphasis in
original).[
Footnote 2] The
upshot of all this advice is a question-first practice of some
popularity, as one can see from the reported cases describing its
use, sometimes in obedience to departmental policy.[
Footnote 3]
IV
When a confession so obtained is
offered and challenged, attention must be paid to the conflicting
objects of
Miranda and question-first.
Miranda
addressed “interrogation practices … likely … to disable [an
individual] from making a free and rational choice” about speaking,
384 U. S., at 464–465, and held that a suspect must be “adequately
and effectively” advised of the choice the Constitution guarantees,
id., at 467. The object of question-first is to render
Miranda warnings ineffective by waiting for a particularly
opportune time to give them, after the suspect has already
confessed.
Just as “no talismanic
incantation [is] required to satisfy [
Miranda’s]
strictures,”
California v.
Prysock,
453 U. S. 355, 359
(1981)
(per curiam), it would be absurd to think that mere
recitation of the litany suffices to satisfy
Miranda in
every conceivable circumstance. “The inquiry is simply whether the
warnings reasonably ‘conve[y] to [a suspect] his rights as required
by
Miranda.’ ”
Duckworth v.
Eagan,
492 U. S. 195,
203 (1989) (quoting
Prysock,
supra, at 361). The
threshold issue when interrogators question first and warn later is
thus whether it would be reasonable to find that in these
circumstances the warnings could function “effectively” as
Miranda requires. Could the warnings effectively advise
the suspect that he had a real choice about giving an admissible
statement at that juncture? Could they reasonably convey that he
could choose to stop talking even if he had talked earlier? For
unless the warnings could place a suspect who has just been
interrogated in a position to make such an informed choice, there
is no practical justification for accepting the formal warnings as
compliance with
Miranda, or for treating the second stage
of interrogation as distinct from the first, unwarned and
inadmissible segment.[
Footnote
4]
There is no doubt about the answer that
proponents of question-first give to this question about the
effectiveness of warnings given only after successful
interrogation, and we think their answer is correct. By any
objective measure, applied to circumstances exemplified here, it is
likely that if the interrogators employ the technique of
withholding warnings until after interrogation succeeds in
eliciting a confession, the warnings will be ineffective in
preparing the suspect for successive interrogation, close in time
and similar in content. After all, the reason that question-first
is catching on is as obvious as its manifest purpose, which is to
get a confession the suspect would not make if he understood his
rights at the outset; the sensible underlying assumption is that
with one confession in hand before the warnings, the interrogator
can count on getting its duplicate, with trifling additional
trouble. Upon hearing warnings only in the aftermath of
interrogation and just after making a confession, a suspect would
hardly think he had a genuine right to remain silent, let alone
persist in so believing once the police began to lead him over the
same ground again.[
Footnote 5]
A more likely reaction on a suspect’s part would be perplexity
about the reason for discussing rights at that point, bewilderment
being an unpromising frame of mind for knowledgeable decision. What
is worse, telling a suspect that “anything you say can and will be
used against you,” without expressly excepting the statement just
given, could lead to an entirely reasonable inference that what he
has just said will be used, with subsequent silence being of no
avail. Thus, when
Miranda warnings are inserted in the
midst of coordinated and continuing interrogation, they are likely
to mislead and “depriv[e] a defendant of knowledge essential to his
ability to understand the nature of his rights and the consequences
of abandoning them.”
Moran v.
Burbine,
475 U. S. 412, 424
(1986). By the same token, it would ordinarily be unrealistic to
treat two spates of integrated and proximately conducted
questioning as independent interrogations subject to independent
evaluation simply because
Miranda warnings formally
punctuate them in the middle.
V
Missouri argues that a confession
repeated at the end of an interrogation sequence envisioned in a
question-first strategy is admissible on the authority of
Oregon v.
Elstad,
470
U. S. 298 (1985), but the argument disfigures that case. In
Elstad, the police went to the young suspect’s house to
take him into custody on a charge of burglary. Before the arrest,
one officer spoke with the suspect’s mother, while the other one
joined the suspect in a “brief stop in the living room,”
id., at 315, where the officer said he “felt” the young
man was involved in a burglary,
id., at 301 (internal
quotation marks omitted). The suspect acknowledged he had been at
the scene.
Ibid. This Court noted that the pause in the
living room “was not to interrogate the suspect but to notify his
mother of the reason for his arrest,”
id., at 315, and
described the incident as having “none of the earmarks of
coercion,”
id., at 316. The Court, indeed, took care to
mention that the officer’s initial failure to warn was an
“oversight” that “may have been the result of confusion as to
whether the brief exchange qualified as ‘custodial interrogation’
or … may simply have reflected … reluctance to initiate an alarming
police procedure before [an officer] had spoken with respondent’s
mother.”
Id., at 315–316. At the outset of a later and
systematic station house interrogation going well beyond the scope
of the laconic prior admission, the suspect was given
Miranda warnings and made a full confession.
Elstad,
supra, at 301, 314–315. In holding the second statement
admissible and voluntary,
Elstad rejected the “cat out of
the bag” theory that any short, earlier admission, obtained in
arguably innocent neglect of
Miranda, determined the
character of the later, warned confession,
Elstad, 470 U.
S., at 311–314; on the facts of that case, the Court thought any
causal connection between the first and second responses to the
police was “speculative and attenuated,”
id., at 313.
Although the
Elstad Court expressed no explicit conclusion
about either officer’s state of mind, it is fair to read
Elstad as treating the living room conversation as a
good-faith
Miranda mistake, not only open to correction by
careful warnings before systematic questioning in that particular
case, but posing no threat to warn-first practice generally. See
Elstad,
supra, at 309 (characterizing the
officers’ omission of
Miranda warnings as “a simple
failure to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the
suspect’s ability to exercise his free will”); 470 U. S., at 318,
n. 5 (Justice Brennan’s concern in dissent that
Elstad would invite question-first practice “distorts the
reasoning and holding of our decision, but, worse, invites trial
courts and prosecutors to do the same”).
The contrast between
Elstad and this case reveals a series of relevant facts
that bear on 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. In
Elstad, it was not unreasonable to see
the occasion for questioning at the station house as presenting a
markedly different experience from the short conversation at home;
since a reasonable person in the suspect’s shoes could have seen
the station house questioning as a new and distinct experience, the
Miranda warnings could have made sense as presenting a
genuine choice whether to follow up on the earlier admission.
At the opposite extreme are the facts here,
which by any objective measure reveal a police strategy adapted to
undermine the
Miranda warnings.[
Footnote 6] The unwarned interrogation was conducted in
the station house, and the questioning was systematic, exhaustive,
and managed with psychological skill. When the police were finished
there was little, if anything, of incriminating potential left
unsaid. The warned phase of questioning proceeded after a pause of
only 15 to 20 minutes, in the same place as the unwarned segment.
When the same officer who had conducted the first phase recited the
Miranda warnings, he said nothing to counter the probable
misimpression that the advice that anything Seibert said could be
used against her also applied to the details of the inculpatory
statement previously elicited. In particular, the police did not
advise that her prior statement could not be used.[
Footnote 7] Nothing was said or done to
dispel the oddity of warning about legal rights to silence and
counsel right after the police had led her through a systematic
interrogation, and any uncertainty on her part about a right to
stop talking about matters previously discussed would only have
been aggravated by the way Officer Hanrahan set the scene by saying
“we’ve been talking for a little while about what happened on
Wednesday the twelfth, haven’t we?” App. 66. The impression that
the further questioning was a mere continuation of the earlier
questions and responses was fostered by references back to the
confession already given. It would have been reasonable to regard
the two sessions as parts of a continuum, in which it would have
been unnatural to refuse to repeat at the second stage what had
been said before. These circumstances must be seen as challenging
the comprehensibility and efficacy of the
Miranda warnings
to the point 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.[
Footnote 8]
VI
Strategists dedicated to draining
the substance out of
Miranda cannot accomplish by training
instructions what
Dickerson held Congress could not do by
statute. Because the question-first tactic effectively threatens to
thwart
Miranda’s purpose of reducing the risk that a
coerced confession would be admitted, and because the facts here do
not reasonably support a conclusion that the warnings given could
have served their purpose, Seibert’s postwarning statements are
inadmissible. The judgment of the Supreme Court of Missouri is
affirmed.
It is so ordered.
Footnote 1
“[T]he burden of showing admissibility rests,
of course, on the prosecution.”
Brown v.
Illinois,
422 U. S. 590, 604
(1975). The prosecution bears the burden of proving, at least by a
preponderance of the evidence, the
Miranda waiver,
Colorado v.
Connelly,
479 U. S. 157, 169
(1986), and the voluntariness of the confession,
Lego v.
Twomey,
404
U. S. 477, 489 (1972).
Footnote 2
Emphasizing the impeachment exception to the
Miranda rule approved by this Court,
Harris v.
New York,
401 U. S. 222 (1971),
some training programs advise officers to omit
Miranda
warnings altogether or to continue questioning after the suspect
invokes his rights. See,
e.g., Police Law Manual 83
(“There is no need to give a
Miranda warning before asking
questions if … the answers given … will not be required by the
prosecutor during the prosecution’s case-in-chief”); California
Commission on Peace Officer Standards and Training, Video Training
Programs for California Law Enforcement, Miranda: Post-Invocation
Questioning (broadcast July 11, 1996) (“We … have been encouraging
you to continue to question a suspect after they’ve invoked their
Miranda rights”); D. Zulawski & D. Wicklander,
Practical Aspects of Interview and Interrogation 50–51 (2d ed.
2002) (describing the practice of “[b]eachheading” as useful for
impeachment purpose (emphasis deleted)); see also Weisselberg,
Saving
Miranda, 84 Cornell L. Rev. 109, 110, 132–139
(1998) (collecting California training materials encouraging
questioning “outside
Miranda”). This training is reflected
in the reported cases involving deliberate questioning after
invocation of
Miranda rights. See,
e.g.,
California Attorneys for Criminal Justice v.
Butts, 195 F.3d 1039, 1042–1044 (CA9 2000);
Henry
v.
Kernan, 197 F. 3d 1021, 1026 (CA9 1999);
People v.
Neal, 31 Cal. 4th 63, 68, 72 P. 3d
280, 282 (2003);
People v.
Peevy,
17 Cal. 4th
1184, 1189, 953 P. 2d 1212, 1215 (1998). Scholars have
noted the growing trend of such practices. See,
e.g., Leo,
Questioning the Relevance of
Miranda in the Twenty-First
Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the
Stationhouse After
Dickerson, 99 Mich. L. Rev. 1121,
1123–1154 (2001).
It is not the case, of course, that law
enforcement educators en masse are urging that
Miranda be
honored only in the breach. See,
e.g., C. O’Hara & G.
O’Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003)
(instructing police to give
Miranda warnings before
conducting custodial interrogation); F. Inbau, J. Reid, & J.
Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986)
(hereinafter Inbau, Reid, & Buckley) (same); John Reid &
Associates, Interviewing & Interrogation: The Reid Technique 61
(1991) (same). Most police manuals do not advocate the
question-first tactic, because they understand that
Oregon
v.
Elstad, 470
U. S. 298 (1985), involved an officer’s good-faith failure to
warn. See,
e.g., Inbau, Reid, & Buckley 241
(
Elstad’s “facts as well as [its] specific holding”
instruct that “where an interrogator has failed to administer the
Miranda warnings in the mistaken belief that, under the
circumstances of the particular case, the warnings were not
required, … corrective measures … salvage an interrogation
opportunity”).
Footnote 3
See,
e.g.,
United States v.
Orso, 266 F. 3d 1030, 1032–1033 (CA9 2001) (en banc);
Pope v.
Zenon, 69 F.3d 1018, 1023–1024 (CA9
1995), overruled by
Orso,
supra; Cooper
v.
Dupnik, 963 F.2d 1220, 1224–1227, 1249 (CA9 1992) (en
banc);
United States v.
Carter, 884 F. 2d
368, 373 (CA9 1989);
United States v.
Esquilin,
208 F. 3d 315, 317 (CA1 2000);
Davis v.
United
States, 724 A. 2d 1163, 1165–1166 (D. C. App.
1998).
Footnote 4
Respondent Seibert argues that her second
confession should be excluded from evidence under the doctrine
known by the metaphor of the “fruit of the poisonous tree,”
developed in the Fourth Amendment context in
Wong Sun v.
United States,
371 U. S. 471 (1963):
evidence otherwise admissible but discovered as a result of an
earlier violation is excluded as tainted, lest the law encourage
future violations. But the Court in
Elstad rejected the
Wong Sun fruits doctrine for analyzing the admissibility
of a subsequent warned confession following “an initial failure . .
. to administer the warnings required by
Miranda.”
Elstad, 470 U. S., at 300. In
Elstad, “a simple
failure to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the
suspect’s ability to exercise his free will” did not “so tain[t]
the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period. Though
Miranda requires that the unwarned admission must be
suppressed, the admissibility of any subsequent statement should
turn in these circumstances solely on whether it is knowingly and
voluntarily made.”
Id., at 309.
Elstad held that
“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.”
Id., at 318. In a sequential confession case,
clarity is served if the later confession is approached by asking
whether in the circumstances the
Miranda warnings given
could reasonably be found effective. If yes, a court can take up
the standard issues of voluntary waiver and voluntary statement; if
no, the subsequent statement is inadmissible for want of adequate
Miranda warnings, because the earlier and later statements
are realistically seen as parts of a single, unwarned sequence of
questioning.
Footnote 5
It bears emphasizing that the effectiveness
Miranda assumes the warnings can have must potentially
extend through the repeated interrogation, since a suspect has a
right to stop at any time. It seems highly unlikely that a suspect
could retain any such understanding when the interrogator leads him
a second time through a line of questioning the suspect has already
answered fully. The point is not that a later unknowing or
involuntary confession cancels out an earlier, adequate warning;
the point is that the warning is unlikely to be effective in the
question-first sequence we have described.
Footnote 6
Because 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), the focus is on facts
apart from intent that show the question-first tactic at work.
Footnote 7
We do not hold that a formal addendum warning
that a previous statement could not be used would be sufficient to
change the character of the question-first procedure to the point
of rendering an ensuing statement admissible, but its absence is
clearly a factor that blunts the efficacy of the warnings and
points to a continuing, not a new, interrogation.
Footnote 8
Because we find that the warnings were
inadequate, there is no need to assess the actual voluntariness of
the statement.
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