The Criminal Docket

  A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

    January 2007

Volume II, Number   


KLEIN’S KORNER
JUDGE ROSS KLEIN
LOS ANGELES SUPERIOR COURT
TELEPHONE: (562) 804-8045

Klein's Korner Column: Miranda Rights
Proposition 36 Analysis:
     Part I: All Cases Through December 2006
     Part II: Reference Guide: Cases and Penal Code

KLEIN’S KORNER

If a defendant makes an incriminating statement without being advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and subsequently makes a second incriminating statement after being Mirandized, is the second statement admissible at trial?  The United States Supreme Court and California appellate courts have addressed this issue.

The seminal case is Oregon v. Elstad (1985) 470 U.S. 298.  In Elstad, the defendant was arrested and, while at his home, he was questioned without being advised of his Miranda rights.  He acknowledged being present at a burglary.  After being taken to the police station, approximately one hour later he was read his Miranda rights and fully confessed.  The Oregon court suppressed the second statement on the grounds that it was impermissibly tainted by the prior questioning as “fruit of the poisonous tree” (citing Wong Sun v. United States (1963) 371 U.S. 471)   The United States Supreme Court reversed this decision.

Elstad held that if a defendant first makes an unMirandized but uncoerced statement and then later makes an incriminating statement after an informed and voluntary waiver, the second statement is admissible.  The Elstad court further held that the Fourth Amendment “fruit of the poisonous tree” analysis did not apply to a Miranda violation as long as the second, Mirandized, confession was made voluntarily.  “(One argument) would require that respondent’s confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the tainted fruit of the poisonous tree of the Miranda violation...(The argument) should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda statements as prohibited by the Fifth Amendment.” (470 U.S. at 303-304).

The court stated that “The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony.  Failure to administer Miranda warnings creates a presumption of compulsion.  Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.”  (470 U.S. at 306-307)

United States v. Wauneka
(1985) 770 F. 2nd 1434, 1439-40: “In determining the admissibility of a defendant’s statement given after the Miranda warning, the court should look first to determine whether the statement made by a defendant before the Miranda warning was actually coerced in violation of the Fifth Amendment.  If it was then the court must suppress the evidence unless the violation was sufficiently attenuated to permit the use of the evidence.”

In People v. Montano (1991) 226 Cal. App. 3rd 914, the defendant was Mirandized and made incriminating statements that continued after he invoked his right to counsel 11 times.  Four hours later, the defendant asked to speak with the investigating officer, and he was again Mirandized and he confessed a second time.  The Court of Appeal stated that the trial court’s admission of the second statement was reversible error.  Since the first statement’s “predicate illegality was of constitutional magnitude, the prosecution had to show that the defendant’s confession was sufficiently an act of free will to purge the primary taint.”  (226 Cal. App. 3rd 937).  The factors that the Montano court said must be considered include: was the Miranda violation “technical or procedural,” the temporal proximity between the coerced first confession and the second confession, the presence of intervening circumstances (i.e. did the defendant remain at the police station, did he have an opportunity to speak with family members or an attorney), and the flagrancy of the officers’ misconduct. (226 Cal. App. 3rd 937-939).


In some instances, it has found to be inappropriate for an officer to “soften up” an individual in order to get him to waive his Miranda rights.  In People v. Honeycutt (1977) 20 Cal 3rd 150 the Supreme Court disapproved of the officers’ “clever softening up” of the defendant “by disparagement of the victim and ingratiating conversation.”  The defendant’s waiver of his Miranda rights was held to be involuntary.  This prohibited conduct was subsequently labeled “premeditated trickery” in People v. Posten (1980) 108 Cal App 3rd 633.  Contrast this with the facts in People v. Mickey (1991) 54 Cal 3rd 612 in which the defendant made incriminating statements to the officers accompanying him on a plane flight to the United States from Tokyo.  The Supreme Court upheld the admission of the defendant’s statements and held that the officers did not “soften up” the defendant.  The Court found that there was no preplanned intention by the officers to soften him up and there was no custodial interrogation prior to the defendant’s admissions.   In People v. Inman (1986) 186 Cal App 3rd 1137 the defendant invoked his Miranda rights.  He then returned on his own to the police station five days later while out on bail. He was “reminded” that his previously-given Miranda rights were still in effect.  His statement was admissible because he was found not to be in custody, voluntarily spoke with the officers and then left the police station on his own volition.

In determining the admissibility of the second Mirandized statement, California courts are to apply the stringent exclusionary analysis of the Elstad decision.  (People v. Gastile (1988) 205 Cal. App. 3rd 1376) (disapproved on other grounds in People v. Wrest (1992) 3 Cal 4th 1088, 1104) The defendant has the burden of proving that the second confession was obtained by exploiting the earlier unMirandized statement.  (People v. Beardslee (1991) 53 Cal. 3rd 68)

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