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
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
* 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
www.charlieunger.com or at 244-8694.