Miranda redux

[crimresearch]

In the recent Miranda thread, there was mention of the practice of Mirandizing a suspect after they had incriminated themselves, and then repeating the questions.

That tactic would appear to be out, under the most recent ruling by the Supremes.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-6320

[Suddenly]

Originally posted by crimresearch
In the recent Miranda thread, there was mention of the practice of Mirandizing a suspect after they had incriminated themselves, and then repeating the questions.

That tactic would appear to be out, under the most recent ruling by the Supremes.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-6320

Not quite.

This case appears to deal with the sixth amendment right to counsel, and not Miranda.

The defendant was indicted before the officers came to the house to talk to him, and that triggers a right to counsel seperate from Miranda. This right was never waived.

There is a difference between the 6th amendment right to counsel and what is considered the Miranda right to counsel. The difference is an obscure one, and one that even most lawyers aren't completely aware of. That's what the Court is really saying here, that the appeals court messed up by judging this as a Miranda issue (Miranda draws from the 5th amendment right to avoid self-incrimination) rather than a 6th amendment right to cousel issue.

Some illustration from the case:

First, there is no question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny. (citation omitted)

The circuit court had applied Miranda and thus used an interrogation standard w/r/t the intitial questioning. Here, the Supremes are gently pointing out that this isn't a Miranda case but rather a Sixth Amendment right to counsel case, and since there have been formal proceeings against the defendant, any information "deliberately elicited" from the defendant without counsel is subject to exclusion.


Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment standards, the Court of Appeals improperly conducted its "fruits" analysis under the Fifth Amendment. Specifically, it applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were " 'knowingly and voluntarily made.' " 285 F. 3d, at 724 (quoting Elstad, supra, at 309).

Saying that there is a different standard w/r/t the "fruit of the poisonous tree" analysis when dealing with the Sixth Amendment rather than Miranda (Fifth Amendment). The court referrs to Oregon v. Elstad, 470 U.S. 298 (1985), which held in part that the tactic of reasking is OK, but should be scrutinized: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. 5 The relevant inquiry is whether, in fact, the second statement was also voluntarily made. 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. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today 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.

This, in simple English, says that if a suspect is questioned in violation of Miranda and then later is re-questioned after being warned and waiving the rights, there is no automatic bar to the second statements coming into evidence. There are criteria that would bar the second statement, but generally speaking it is admissible as long as it is "voluntary."

The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner's jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.

The Court here points out that the appeals court didn't decide the real question, whether Elstad applies to 6th Amendment situations, so the Court doesn't really have the ability to issue a ruling in that regard, so they send back the case.


In short, what this case is is the Supreme Court telling the 8th Circuit more or less (in my words):

For the love of Ed!! Are you idiots? Can you tell the difference between Miranda rights and 6th Amendment rights? We'd like to clean up this mess for you but since you are like 39878 miles from even asking the correct question in this case, much less answering it correctly, we are just going to give you a clue and make you start over.

Morons.

[crimresearch]

The 6th amendment right to have an attorney present is part of what is called the 'Miranda warning'...if they had tortured a confession out of the guy, and then tried to use it in evidence by Mirandizing him afterwards, it would also have been a violation...there is no free pass on violating certain rights by waving a Miranda card around later.

But, hey...if you think you can get a judge to accept an unconstitutionally obtained statement just by adding a Miranda warning after the fact, in light of todays ruling, go for it...I'll bet you can't.

Paul

[RPG Advocate]

Originally posted by crimresearch
The 6th amendment right to have an attorney present is part of what is called the 'Miranda warning'...if they had tortured a confession out of the guy, and then tried to use it in evidence by Mirandizing him afterwards, it would also have been a violation...there is no free pass on violating certain rights by waving a Miranda card around later.

But, hey...if you think you can get a judge to accept an unconstitutionally obtained statement just by adding a Miranda warning after the fact, in light of todays ruling, go for it...I'll bet you can't.

Well, you're right, you can't, but not because of the ruling you cited above. If police tortured a suspect and then read him his Miranda rights and questioned him again, the suspect could, at the very least, make an Innis argument for suppression of the inculpatory statements, since torture is certainly "reasonably likely to elicit an incriminating response from the subject". I'm sure there's other caselaw that goes straight to the question of torture.

The present ruling is talking about a totally different rule, as Suddenly stated above. The interview at the suspect's home was non-custodial, so trying to apply Miranda to it would be clearly erroneous. The monkey-wrench on which the entire situation rests is the jailhouse statements that resulted from the fruits of that improper questioning. It's thorny because the defedant waived his right to counsel at the second questioning session at the jail. The USC remanded that part back to the appeals court for review.

So, as you can see, while the case peripherally involves a Miranda warning, the real question is with regard to whether the Miranda waiver (which includes right to counsel) is sufficient to remedy the related, but legally different, error, which has nothing to do with Miranda at all.

[crimresearch]

"while the case peripherally involves a Miranda warning"


Isn't that the point of my first post?

I mentioned that this case may impact a Miranda policy issue, namely attempting to use the Miranda warning after the fact to sanitize evidence.

What part of that exactly is anyone refuting?

Paul Nunis

[Suddenly]

Originally posted by crimresearch
The 6th amendment right to have an attorney present is part of what is called the 'Miranda warning'...if they had tortured a confession out of the guy, and then tried to use it in evidence by Mirandizing him afterwards, it would also have been a violation...there is no free pass on violating certain rights by waving a Miranda card around later.

But, hey...if you think you can get a judge to accept an unconstitutionally obtained statement just by adding a Miranda warning after the fact, in light of todays ruling, go for it...I'll bet you can't.

Paul

1) Miranda deals with the 5th amendment right. While that 5th amendment right contains a right to counsel, that right to counsel is wholely seperate from the 6th amendment right to counsel. They are two different rights. They may often apply at the same times, but there are times when one applies and the other doesn't. The case you mention is significant mainly in that way.

2) The Supreme Court decided all the way back in 1985 the situations where an officer can obtain a confession in violation of Miranda, and then by giving the Miranda warnings then rightfully get a second confession that is admissible in court. This is not a new issue just decided by the court, rather it was decided 20 years ago, and the main concept is settled law. This case does not affect that issue one bit. Go read the Elstad case cited in my above post and by the court in the case you mention. It covers all of this in detail, setting out guiding principles and the like.

3)The only reason Miranda is even mentioned in this recent opinion is that the Supreme Court is telling the 8th circuit that Miranda does not apply, and that the 8th circuit should have instead analyzed the petitioner's situation as a 6th amendment right to counsel case. The larger issue is whether the principles laid out in Elstad apply in 6th amendment situations. The Supremes dodged this question by ordering the 8th circuit to decide it. Their words: We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.

That's it. This case contains zero new law as pertains to Miranda; all the court is doing is correcting the 8th Circuit and then sending it back for the 8th circuit to actually rule on the correct issue, whether Elstad applies to the 6th amendment the same as it already applies to the 5th amendment right outlined in Miranda.

[RPG Advocate]

Originally posted by crimresearch
"while the case peripherally involves a Miranda warning"

Isn't that the point of my first post?

I mentioned that this case may impact a Miranda policy issue, namely attempting to use the Miranda warning after the fact to sanitize evidence.

What part of that exactly is anyone refuting?

What I'm refuting is your estimation of the broadness of the implications that this ruling will have on Miranda issues. No matter how this case is resolved, the controlling precedents on the issue of Mirandiziing suspects after making incriminating statements won't change, because the vast majority of criminal suspects are taken into custody prior to an indictment being handed down.

All this ruling will do is decide whether being questioned with evidence previously obtained in violation of one's Sixth Amendment right to counsel (a totally different issue than Miranda) after later executing a knowing waiver of right to counsel can be admitted into evidence. The ruling will only be applicable to an ultra-narrow set of circumstances.

[crimresearch]

"What I'm refuting is your estimation of the broadness of the implications that this ruling will have on Miranda issues"


Except the only 'estimation' I made was as to whether the ploy described in the original thread 'would appear' to be out...

So if you are refuting what I said, and not what I didn't say, then I would welcome some evidence that no police policy on post incrimination Miranda warnings will be affected by this rulings, or a chain of subsequent rulings raised by this one..
.

Paul Nunis

[Suddenly]

Originally posted by crimresearch
"What I'm refuting is your estimation of the broadness of the implications that this ruling will have on Miranda issues"


Except the only 'estimation' I made was as to whether the ploy described in the original thread 'would appear' to be out...

So if you are refuting what I said, and not what I didn't say, then I would welcome some evidence that no police policy on post incrimination Miranda warnings will be affected by this rulings, or a chain of subsequent rulings raised by this one..
.

Paul Nunis

The evidence is pretty much before you in my two previous posts. This case has nothing to do with Miranda. The Elstad case already fully addresses your proposed ploy.

There is no statement in that (Fellers v. U.S.) case that indicates the court is making a rule of law with regard to Miranda rights. In fact, when the court stops discussing the ruling below and begins to analyze the issue (at roman numeral II) the court never even again cites Miranda. Not once.

If you feel I am going astray, perhaps you should re-state your claim and the actual passage in the case that leads you to believe that Miranda is affected by this ruling. I will then be able to better address your point.

[crimresearch]

If the best you can do is to make false claims as to what I said, and then demand that I defend them, you are wasting our time.

I suspect that you are resorting to this because you misread my original note that this case might lead to an effect on police tactics..so far all you have done is claim that the Court didn't address the miranda warning itself, which is completely beside the point.
Do you really believe that the Court writes in such a vacuum?

Paul

[Suddenly]

Originally posted by crimresearch
If the best you can do is to make false claims as to what I said, and then demand that I defend them, you are wasting our time. If you believe I am creating a strawman I'd ask you to simply restate your claim.

I suspect that you are resorting to this because you misread my original note that this case might lead to an effect on police tactics..so far all you have done is claim that the Court didn't address the miranda warning itself, which is completely beside the point.

Do you really believe that the Court writes in such a vacuum?

Paul

Your words: In the recent Miranda thread, there was mention of the practice of Mirandizing a suspect after they had incriminated themselves, and then repeating the questions.

That tactic would appear to be out, under the most recent ruling by the Supremes.

This seems more specific than "some change in police tactics," but I will take your word for it.

In order to understand your position I ask that you let me know what language in the opinion led you to this belief. This case as I have analyzed above has no real effect. It is a short, unanimous opinion that simply remands a case for further action by the lower court, and all the court is saying is that the Sixth Amendment, not Miranda, is the appropriate legal right applicable to the facts. It pretty specifically refuses to make new law or to speak to the issue at bar, namely whether the principles in Elstad apply in a 6th amendment analysis.

[crimresearch]

"Held:...Because their discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of his Sixth Amendment rights, the officers' actions violated the Sixth Amendment standards established in Massiah, supra, and its progeny. Pp. 4-5."

"... the officer's actions...the absence of any waiver..."

Gee, I dunno..when exactly do you suppose the police might have obtained this missing waiver of the right to counsel??
I don't suppose by the faintest chance the Court meant that the police should have said something before the suspect incriminated himself...you know, something like 'You have the right to have an attorney present during questioning...do you wish to waive these rights?...'

Naw, they must have meant some OTHER police tactic for informing a suspect of his rights, and obtaining a waiver. Maybe the famous 'Elstad warning', since we have your assurance that this case in no way shape or form involves the Miranda warning?

Paul

[Suddenly]

Originally posted by crimresearch
"Held:...Because their discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of his Sixth Amendment rights, the officers' actions violated the Sixth Amendment standards established in Massiah, supra, and its progeny. Pp. 4-5."

"... the officer's actions...the absence of any waiver..." One important point is that you incorrectly are inserting the word "held" at the begining of a sentence in order to give the illusion that this is the courts holding. Here is the paragraph you cite from The Court of Appeals erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no question that the officers in this case "deliberately elicited" information from petitioner. Indeed, the officers, upon arriving at petitioner's house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. 285 F. 3d, at 723; App. 112. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights, the Court of Appeals erred in holding that the officers' actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.

As you can see, the sentence you quote does not begin with the word "held", nor any other form of the word. The closest thing to "held" in the whole paragraph is in the first sentence, where the Supremes are saying that the Eight Circuit "erred." If you are going to add words not in the original, it is customary at a minimmum to put those words in brackets. Also, it must be clear that the inserted word is not changing the substance of the quotation. You followed neither of these concepts, and it appears you pulled the word "held" out of mid-air and tried to pass it off as actually coming from the Supreme Court.

Actually, I just checked again and it appears you are using the word "held" as it appears from the syllabus, which is not part of the court's opinion. The opinion doesn't start until the words "Justice O'Connor delivered the opinion of the Court." Any text before that is is the syllabus and not good law. Most Supreme Court Opinions note this fact to prevent reader confusion with a note as such:

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.

Furthermore, lets look at that context to see how much your ellipse passes over:

Held: The Eighth Circuit erred in holding that the absence of an "interrogation" foreclosed petitioner's claim that his jailhouse statements should have been suppressed as fruits of the statements taken from him at his home. Pp. 4-6.

(a) An accused is denied the protections of the Sixth Amendment "when there [is] used against him at his trial ... his own incriminating words, which federal agents ... deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U. S. 201, 206. This Court has consistently applied the deliberate-elicitation standard in subsequent Sixth Amendment cases, see, e.g., United States v. Henry, 447 U. S. 264, and has expressly distinguished it from the Fifth Amendment custodial-interrogation standard, see, e.g., Michigan v. Jackson, 475 U. S. 625. There is no question here that the officers "deliberately elicited" information from petitioner at his home. Because their discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of his Sixth Amendment rights, the officers' actions violated the Sixth Amendment standards established in Massiah, supra, and its progeny. Pp. 4-5.
(Bolding mine)

As you can see the word "held", even in the syllabus, directly referrs to the idea that the whole point of the case is that the Eighth Circuit erred. Furthermore the word "held" is still not even in the same paragraph as the sentence you connect it to.

Anyway...

What you have there is not a holding, but a simple finding of law as applies to that situation. There is nothing new here, only the Court pointing out that the 8th circuit failed to apply 6th amendment analysis to the facts at bar, and that failure is significant because it is pretty obvious that petitioner's sixth amendment rights are violated. This is not new law at all, this is just the correct application of Massiah, which is 40 years old.

Gee, I dunno..when exactly do you suppose the police might have obtained this missing waiver of the right to counsel??
I don't suppose by the faintest chance the Court meant that the police should have said something before the suspect incriminated himself...you know, something like 'You have the right to have an attorney present during questioning...do you wish to waive these rights?...' Miranda warnings were not necessary, nor is it clear they would be sufficent. The fact that petitioner has a 6th amendment right to counsel is hardly new, rather this right preceeds Miranda by two years, as the Massiah case that established and clarified it was handed down in 1964. Massiah stands for the proposition that when formal proceedings are brought against a suspect, the sixth amendment gives a right to counsel. This is not part of Miranda, as Miranda wasn't decided until 1966.

This case brings nothing more to the table, it just points out the 8th circuit used Miranda when it should have considered the 6th amendment right spelled out by Massiah. All of this law is 40 years old.

Naw, they must have meant some OTHER police tactic for informing a suspect of his rights, and obtaining a waiver. Maybe the famous 'Elstad warning', since we have your assurance that this case in no way shape or form involves the Miranda warning?

Paul

They meant Massiah. Massiah is not new law, it is 40 years old. The whole issue is whether the principles in Elstad apply when there is a violation of the 6th amendment right laid out in Massiah.

However, the Supremes believed that the proper disposition was not to simply decide that legal issue, but rather to send the case back to the 8th Circuit for that court to make a decision. At that point it is possible the losing party will appeal and the Supremes may again grant cert so they can have the final word on the issue.

[crimresearch]

So glad to see that despite your ignorance of what an ellipsis is used for, and your fraudulent introduction of an entirely different paragraph from the one I quoted, followed by the lie that I inserted a word not found in the original, (not to mention your earlier fraudulent assertion that I wasn't talking about police policy when I said "practice of Mirandizing a suspect"...) you DO realize that the police are required to Mirandize someone just as before.

Perhaps that is why the various news coverage on this ruling cites legal sources as saying that this case 'upholds' Miranda, as opposed to allowing police to continue with the practice described in this case.

You sure do waste a lot of time admitting that my original post was correct, that this ruling would appear to affect police policies which seek to admit incriminating evidence sanitized by a retroactive blanket Miranda warning.
*********************************************

"Supreme Court Reaffirms Miranda Ruling
Mon Jan 26, 5:43 PM ET

By GINA HOLLAND, Associated Press Writer

WASHINGTON - The Supreme Court told police Monday not to try to wrest confessions from criminal suspects facing formal charges without telling them they have a right to see a lawyer.



Justices ruled unanimously that officers who want information from indicted people must be upfront in telling them of their legal rights, a victory for a Nebraska man who claimed he was tricked into talking to officers who came to his house to arrest him on drug charges.


"There was some fuzziness in the law about precisely what police officers could and could not do," said Washington attorney Seth Waxman, appointed by the court to represent the drug defendant. "I don't think it will be difficult at all for responsible officers to comply with this."
*****************************************

Paul

[Suddenly]

Originally posted by crimresearch
So glad to see that despite your ignorance of what an ellipsis is used for, and your fraudulent introduction of an entirely different paragraph from the one I quoted, followed by the lie that I inserted a word not found in the original, (not to mention your earlier fraudulent assertion that I wasn't talking about police policy when I said "practice of Mirandizing a suspect"...) you DO realize that the police are required to Mirandize someone just as before. I actually included both places in the opinion where the cited language appears, and gave the full context. All the evidence is before you. Perhaps you can explain yourself better by actually showing something to back up your claims rather than just taking an air of the self appointed expert. I have and will remain polite in showing your errors. Perhaps you could show some politeness and back up your claims of fraud, and show me where in that opinion other than the two places I cited that language appears.

As far as the police still needing to give Miranda warnings "just as before," well, since I contend this new case has no real legal effect that would follow. Of course, this case, if it re-enforces anything, it re-enforces the Massiah decision, not Miranda.

Perhaps that is why the various news coverage on this ruling cites legal sources as saying that this case 'upholds' Miranda, as opposed to allowing police to continue with the practice described in this case.

You sure do waste a lot of time admitting that my original post was correct, that this ruling would appear to affect police policies which seek to admit incriminating evidence sanitized by a retroactive blanket Miranda warning.
*********************************************

"Supreme Court Reaffirms Miranda Ruling
Mon Jan 26, 5:43 PM ET

By GINA HOLLAND, Associated Press Writer

WASHINGTON - The Supreme Court told police Monday not to try to wrest confessions from criminal suspects facing formal charges without telling them they have a right to see a lawyer.



Justices ruled unanimously that officers who want information from indicted people must be upfront in telling them of their legal rights, a victory for a Nebraska man who claimed he was tricked into talking to officers who came to his house to arrest him on drug charges.


"There was some fuzziness in the law about precisely what police officers could and could not do," said Washington attorney Seth Waxman, appointed by the court to represent the drug defendant. "I don't think it will be difficult at all for responsible officers to comply with this."
*****************************************

Paul

1) Note that the word "Miranda" doesn't even appear in the newspaper article.

2) I wasn't aware that a newspaper article, even if it backed your claim, was legal precident. It is written by, not a Judge, not even a lawyer, but a newspaper reporter. Newspaper reporters are not experts as to the law. You are appealing to a false authority.

3) Assuming Waxman wasn't taken out of context or the quote fabricated, he is likely referring to the fact that the Supreme Court has now straighened out the 8th Circuit's misunderstanding of Sixth Amendment rights. That cops shouldn't question a suspect post-indictment without counsel is not a new idea, as Massiah spelled that out in 1964. (see the quote in my point 5 below)

4) As to your contention that "that this ruling would appear to affect police policies which seek to admit incriminating evidence sanitized by a retroactive blanket Miranda warning." Again, Elstad answered this question nearly 2 decades ago. Plus, this opinion simply is a remand. They really made no rule of law, except that under the circumstances the 8th circuit was incorrect in ruling that the petitioner's sixth amendment right was not violated. Problem is, that decision was based on already existing law. At best this is a clairification of when the sixth amendment right exists. Still, the question of whether Elstad applies to 6th amendment rights as it does with Miranda rights is up in the air.

5) The key fact in this case is that the petitioner was indicted before being questioned. Had he not been indicted it is somewhat clear, given Elstad, that the Supreme Court would have upheld the 8th circuits finding that the second confession was "knowingly and voluntarily made." See Elstad, 470 U.S. 298, 309 (1985) ("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")

The indictment is what triggers the Massiah rights: We have held that an accused is denied "the basic protections" of the Sixth Amendment "when there [is] used against him at his trial evidence of his own incriminating words, which federal agents ... deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U. S. 201, 206 (1964); cf. Patterson v. Illinois, supra (holding that the Sixth Amendment does not bar postindictment questioning in the absence of counsel if a defendant waives the right to counsel).