Judge urges Legislature to bar police from using ‘deceptive schemes’ to skirt Miranda rights

California Supreme Court Justice Goodwin Liu, shown in 2011, urged the Legislature to bar police agencies from using deception to obtain confessions from suspects who have already invoked their Miranda rights.
(Paul Sakuma / Associated Press)

A judge on California’s top court implored the Legislature on Wednesday to bar a “pervasive” police practice of using deception to obtain confessions from suspects who have invoked their right to remain silent.

“The use of deceptive schemes to continue questioning a suspect who has invoked Miranda rights appears to be a common police practice throughout California,” Justice Goodwin Liu wrote in a dissent.

The dissent came in response to a Wednesday decision by the California Supreme Court to decline review of a Los Angeles case in which a suspect was tricked into confessing by an undercover deputy placed in his cell with a hidden recorder.


A Los Angeles-based state Court of Appeal upheld a decision by a trial judge in the case to admit the confession into evidence. It led to the murder conviction of Manuel de Jesus Valencia, who was 18 when arrested for the gang-related killing. Valencia was sentenced to 50 years to life in prison.

“Miranda forbids coercion, not strategic deception that tricks suspects into trusting someone they see as a fellow prisoner,” the Court of Appeal wrote in September.

Wednesday’s order by the California Supreme Court denying review contained no explanation of the majority’s reasoning.

Liu, in his dissent, complained that the court has repeatedly refused to take up similar cases.

“Compliance with Miranda is not a game, and the Legislature, if not this court, should make that clear,” wrote Liu, a Gov. Jerry Brown appointee.

He said no one disputed that Valencia had validly invoked his Miranda rights before “the police devised a scheme to extract a confession from him.” The scheme by an LAPD officer included falsely telling Valencia that a witness had picked him out of a lineup.


Liu cited a long list of decisions by California appellate courts upholding convictions despite such practices.

“These cases, which come from multiple counties up and down the state, are just the tip of the iceberg,” Liu said. “Because courts have consistently rejected challenges to such practices, and because this court has declined multiple opportunities to take up the issue, it is likely that many defendants do not raise this issue on appeal.”

Liu said the police tactic “integrates official questioning and surreptitious questioning into a single coordinated scheme to exhaust defendants into confessing” after they have invoked Miranda to remain silent and ask for a lawyer.

The Miranda right stems from the 1966 U.S. Supreme Court ruling in Miranda vs. Arizona, which set rules for police interactions with citizens.

“‘Once warnings have been given, the subsequent procedure is clear,’” Liu quoted the high court as ruling. “‘If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’”

The U.S. Supreme Court limited Miranda in 1990, ruling in Illinois vs. Perkins that an undercover officer may question a suspect without giving him or her a Miranda warning. But Liu said that case did not involve a suspect who had already invoked his Miranda right.


“Nevertheless, our courts of appeal have extended Perkins to hold that surreptitious questioning of a suspect is permissible even after the suspect has invoked Miranda rights and remains in custody,” Liu said.

He said courts in other states also have upheld the practice, except for Nevada, which has barred it. Liu also noted that Orange County prosecutors have a policy against it.

Officer Tony Im, a spokesman for the Los Angeles Police Department, said he was unfamiliar with Wednesday’s case and could not comment on it.

The California Supreme Court meets privately to discuss which appeals to accept and traditionally does not comment about its reasoning. Liu has taken to issuing full-blown dissents to some of these court orders since he joined the court in 2011.

The court now has four Democratic appointees and three justices appointed by Republican governors.

The court may decline to review a case for a variety of reasons.

Some justices might agree with the lower court’s reasoning, believe the issue should be allowed to percolate further in the lower courts or think the facts of the case would be a poor vehicle for a ruling. When courts of appeal issue contradictory decisions, the state high court generally must step in to clarify the law.


The lower court’s ruling in Valencia’s case was not published, meaning it cannot be cited as precedent.