Changing Warnings In Mid-Stream

An often hidden concealed ploy in the law enforcement arsenal of interrogation is the two-step process, where agents question a person without benefit of Miranda warnings, usually under a pretense, in a deliberate effort to get the target to start talking and, if all goes well, say something he'll regret. 

Only then, after an admission or confession will they administer Miranda and then get the person to repeat what he's already said.  It's incredibly easier to get someone to say it a second time than the first. After all, the harm's been done. It can't get any worse, right?

The 9th Circuit provides a pretty clear discussion of the two-step process in United States v. Barnes, What makes this opinion rather remarkable is that the FBI agents who questioned Barnes, a parolee, apparently did the one thing no one ever anticipates government agents doing: they told the truth and admitted what they were up to.

Agent Eckstein testified that he was familiar with Miranda’s requirements, believed Barnes would think he was not free to leave the meeting, and intended to question Barnes about his involvement in a crime. He further stated that the agents played the recorded phone conversation to demonstrate that they “were investigating [Barnes],” because “unless he believed that[,] he would not cooperate” with the agents and “would not talk to [them].” Agent Eckstein explained that he did not give the warnings at the beginning of the meeting because he “wanted to allay any concerns [Barnes] had that he was being arrested that day."

Rarely will an agent openly admit his purpose was to trick his target into talking, and in furtherance of that purpose, intentionally failed to give Miranda warning because "they think they’re under arrest because they equate being Mirandized with being under arrest." 

One might think that the intentional failure to provide required notice would be the end of the question, but not quite.  As the remedy for failure to Mirandize is suppression of statements taken during a custodial interrogation without saying the magic words, Agent Eckstein's tricking Barnes into admitting involvement in a narcotics transaction pre-Miranda was itself inadmissible, but accomplished two critical things: first, the agent obtained the information he sought, and second, he got the words out of Barnes' mouth.

That's the key. Once a target tells the agents what they want to know, getting him to repeat it is a breeze. After all, he already said it. They already heard it. It's too late.

Except there is still that darned Miranda thing.  As Elie Mystal argues at Above The Law, Miranda matters. And so, the second step of the process follows:

There was no break or dividing point in the interrogation. Barnes was interrogated in the same place before and after the warnings. After Barnes waived his rights, the agents immediately resumed the interrogation and continued questioning Barnes for approximately two hours. The agents apparently stopped only long enough to read Barnes the “advice of rights” form and allow him to waive his rights.

So the deliberate two-step process, deliberately used to circumvent the purpose of Miranda, was enough to suppress the statements, right?  Well, still not quite.  Had the agents broken the interrogation into two discrete parts, with a gap between them that would have allowed Barnes to reflect on what he was doing and allow him time for the Miranda warnings to sink in, it could have been sufficiently attenuated so that the second step of the interrogation would have been allowed. Cool trick, right?

But the agents here didn't bother to take a breather, and plowed ahead.

This timing particularly reduces the impact of the recitation of constitutional rights. See Seibert, 542 U.S. at  3 (“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 . . . .”). It is clear that Barnes admitted his involvement in the crime before he received the warnings and that his post-warning confession was merely an elaboration on his pre-warning admission of guilt.

And failing to allow the target that gap of time, as if he would deeply contemplate the significance of repeating a confession in relation to his rights under Miranda, as opposed to thinking about how screwed he already was and what he could say now to unscrew himself, meant that the statements would be suppressed, right?  Well, not quite.

Finally, the agents took no curative measures to mitigate their error. They did not, for example, take a substantial time break in the interrogation or warn Barnes that what he had said before the warnings could not be used against him. See id. at 616. (“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.”); id. at 622 (Kennedy, J., concurring in the judgment) (“Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.”); see also Williams, 435 F.3d at 1161 (recognizing that a break in time between two interrogations could serve as an appropriate curative measure). Taken together, these factors demonstrate that the warnings Barnes received were not effective and that his post-warning confession should have been suppressed.

Certainly, the agents could have advised Barnes that his prior statements couldn't be used against him because of their deliberate failure to give Miranda warnings, but that wouldn't have been any fun and, similarly certain, wouldn't have helped the agents to get Barnes to repeat his confession post-warning. And so they failed to "cure" their failure to give warnings, their final chance to circumvent suppression.

Had the agents tailored their testimony at any stage with regard to their extracting the confession from Barnes, and there was clearly no shortage of opportunity, chances are pretty good that they would have gotten the defendant's statements in and undermined Miranda.  That they told the truth about what they did and why, even if it was done to violate Barnes' rights.

For those who believe that videotaping confessions is the solution to all coercion problems, consider how this would have played out had the agents only videotaped the post-Miranda portion of the interrogation and not been as forthright about their scheme.  It would have been devastating.

H/T Spencer Neal

© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/04/19/changing-warnings-in-mid-stream.aspx?ref=rss

injury attorney injury attorneys injury lawers injury lawyer injury lawyers