Supreme Court takes on Missouri attempt at Miranda end-around

July 9, 2004 12 AM PT

CHARLES J. UNGER

We finally won one. By we, I am referring to citizens of this country

and criminal defense attorneys alike. In late June, the U.S. Supreme

Court, in a frighteningly close 5-4 vote, decided that statements

obtained from what is referred to as a “two-step interrogation” would

not be admissible in a court of law.

This is the matter of the State of Missouri v. Seibert. In this

matter, Patrice Seibert was arrested for allegedly setting her home

on fire in an attempt to cover up the death of one of her children.

The death was an accident. In this case, the Missouri Police

Department did what had become their custom, as they had discovered

what they thought was an excellent way to get around giving people

their Miranda warnings and telling them they have the right to an

attorney before being questioned.

In this case, the officer who was to question Ms. Seibert was told

that he should first ask her what he wanted to ask her without giving

her Miranda warnings. He did so and she answered his questions. After

obtaining her confession, he then gave her the Miranda warning before

questioning her again. She again answered his questions.

The court’s opinion was written by Justice David Souter, who

called this “by any objective measure, a police strategy adapted to

undermine the Miranda warnings.” Justice Souter wrote that to first

ask questions without giving a person her Miranda rights, then to

give her the Miranda rights “in the midst of coordinated and

continuing interrogations, misleads suspects about their

constitutional rights.” Justice Souter took issue with the fact that

the police did not advise Ms. Seibert that the un-Mirandized

statements she had initially given could not be used against her. Any

reasonable individual would think that they might as well answer the

questions the second time after having been given their Miranda

rights, as they have already given it all away when they were asked

the questions the first time.

Most people don’t have the courage to ask a police officer why the

officer hasn’t given them their Miranda rights before questioning.

Most people who are in custody try to get along with the officer as

well as possible. If a police officer asks you a set of questions

without Mirandizing you, then gives you your Miranda rights and then

asks the same questions again, of course you are going to answer

them. It would seem foolish at that point in time to say, “No, I want

to speak to an attorney.” The Supreme Court justices came down hard

on Missouri, viewing the police tactic as a “calculated way to

undermine the Miranda warning,” according to Justice Anthony M.

Kennedy. Four justices adopted Justice Souter’s reasoning; Justice

Kennedy wrote the concurring opinion and the four more conservative

justices dissented.

I am really impressed by the reaction of the No. 1 law enforcement

officer in the state of Missouri, Atty. Gen. Jay Nixon. After reading

the Supreme Court’s ruling, he said that the community relies on

police officers to investigate crimes, and that it is not appropriate

for police officers to be trained to use the type of techniques that

were used in this case. He indicated that police departments

throughout the state should take note.

In a nutshell, the approach of the Missouri Police Department in

this case is designed to obtain a confession from an individual, then

read them their rights and get them to confess again. Fortunately,

the U.S. Supreme Court decided that this is not how the state of

Missouri should be doing business. This is the kind of ruling that

gladdens my heart and lets me knows that at least five justices in

the highest court in the land decided that what the Missouri Police

were doing was wrong and that it was time to bring this practice to

an end.

* CHARLES J. UNGER is a criminal defense attorney in the Glendale

law firm of Flanagan, Unger & Grover, and a therapist at the Foothill

Centre for Personal and Family Growth. Mr. Unger writes a bimonthly

column on legal and psychological issues. He can be reached at