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Miranda Violations, Police Training and Volunteriness:
RECENT DEVELOPMENTS

BACKGROUND

Over the last decade, CACJ has been active in exposing and seeking to end the law enforcement practice of questioning suspects in violation of Miranda. Since the late 1980s, many police officers in California have been encouraged to question suspects who have asserted the right to counsel or the right to remain silent. Officers have been told that this does not violate any law, and that although any statement may not be admissible in the prosecution's case in chief, any statement may be admissible for impeachment, the fruits of the statement may also be admitted, and there are other "legitimate" purposes for this questioning. Police call the practice questioning "outside Miranda."

In 1995, CACJ joined with other plaintiffs in suing officers in Los Angeles and Santa Monica concerning this practice and training. During discovery in the litigation and in later work, CACJ uncovered training materials that had issued from individual law enforcement agencies, as well as videotapes and other materials emanating from the California Attorney General's office and the Commission on Peace Officer Standards and Training ("POSI"), an agency within the California Department of Justice. CACJ's civil rights case went to the Ninth Circuit, which held that officers who violate the rights protected by Miranda may be liable for damages and the officers are not entitled to qualified immunity. See CACJ v. Butts, 195 F.3d 1039 (9th Cir. 2000) (as amended).

CACJ has also been active in litigating issues of deliberate Miranda violations in the California Supreme Court. CACJ filed amicus curiae briefs in People v. Peevy, 17 Cal. 4th 1184 (1998), People v. Storm, 28 Cal. 4th 1007 (2002) and People v. Neal, 31 Cal. 4th 63 (2003). In People v. Peevy, the Court ruled that a statement taken in deliberate violation of Miranda was, nevertheless, admissible for impeachment. Although it so held, the California Supreme Court also stated that this tactic of questioning "outside Miranda" was impermissible. The Court rejected, in very strong terms, the argument that such questioning was legitimate. In People v. Neal, decided in July 2003, the Court found a statement involuntary where police deliberately ignored the suspect's repeated assertions of the right to counsel. A unanimous Court castigated the officers who questioned Mr. Neal. Neal is described in more detail below.

Because the Neal case underscores the link between Miranda violations and voluntariness, there should be a renewed interest among the defense bar in intentional violations of Miranda and police training. We are therefore making available the transcripts of two particularly egregious law enforcement training videos about Miranda, Peevy and the voluntariness doctrine. Defense counsel may wish to seek other training materials from relevant agencies under the Public Records Act or through motions or subpoenas. (For a particularly useful overview of police training materials and how they may be used, see John T. Philipsborn, Putting Police Interrogation Tactics and the Psychology of Interrogation on the Front Burner in the Post-Dickerson Era, 28 CACJ Forum 27 (Sept. 2001)). The transcripts set forth below are examples of widely-distributed training materials. They show just how police have been trained to persist in this practice, in the face of condemnation by the courts, and these and other similar materials may assist counsel in demonstrating that a statement is involuntary and should not be admitted.

PEOPLE V. NEAL

On July 14, 2003, the Court decided Neal, issuing a unanimous opinion written by Chief Justice George. The Court summarized the issue as related to the issue in Peevy, but distinct:

"Here, a law enforcement officer, in his initial custodial interrogation of defendant, intentionally continued interrogation of defendant in deliberate violation of Miranda in spite of defendant's repeated invocation of both his right to remain silent and right to counsel--indeed, as we shall see, defendant nine times requested to speak with an attorney. Furthermore, the officer here not only continued the questioning improperly but badgered defendant, accusing him of lying and informing defendant that "this is your one chance" to help himself and that "if you don't try and cooperate ..., the system is going to stick it to you as hard as they can." Despite this badgering, defendant did not admit his guilt at that session. After the session ended, however, defendant was placed in custody and kept in jail overnight without access to counsel or other noncustodial personnel and without food or drink or toilet facilities. The following morning, defendant asked to speak to the officer, who thereafter met with him, resumed questioning, and ultimately obtained two confessions from him.

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"As we shall explain, we conclude that in light of all the surrounding circumstances--including the officer's deliberate violation of Miranda; defendant's youth, inexperience, minimal education, and low intelligence; the deprivation and isolation imposed on defendant during his confinement; and a promise and a threat made by the officer--defendant's initiation of further contact with the officer was involuntary, and his two subsequent confessions were involuntary as well. As a result, we conclude not only that those confessions were inadmissible in the People's case-in-chief because they were obtained in violation of Edwards, but also that they were inadmissible for any purpose because they were involuntary. The consequence of the officer's misconduct--the absolute inability to introduce the confessions at trial--is severe, but is intended to deter other officers from engaging in misconduct of this sort in the future."

As one can see, the first factor stated by the Court in finding the statement involuntary was the deliberate violation of Miranda. The Miranda violations led some of the Court's most conservative members to concur separately, castigaing the officers for their conduct. The concurrence, written by Justice Baxter (joined by Justices Chin and Moreno), states:

"Perhaps the most disturbing aspect of this fiasco is Martin's admission that he was taught on the job to disregard Miranda in order to obtain statements for use as evidence in criminal cases against the declarants. Martin testified he knew he was supposed to stop questioning a custodial suspect who asked for a lawyer, but he ignored this prong of Miranda in hopes of eliciting evidence that could be used to impeach defendant if he testified in his own behalf in a criminal trial. According to Martin, he received training from a Sergeant Lomeli, who informed Martin that this tactic "can be a useful tool.

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"[I]t is unconscionable for police departments or supervisors to give contrary instruction or encouragement to the officers under their jurisdiction. Law enforcement agencies have the responsibility to educate and train officers carefully to avoid improper tactics when conducting custodial interrogations. Officers must be made aware that they have an absolute obligation to play by the rules when questioning suspects in custody, and that their deliberate failure to do so will be severely disciplined. There can be no suggestion--formal or informal, direct or indirect--that improper interrogation tactics are required, encouraged, approved, condoned, or tolerated. Exactly the opposite impression must be conveyed to each and every officer. Only in this way can the police perform the crucial responsibilities they carry.

"In a free society, we place the police in a position of unique power, but only on condition that they will do their best to uphold the law, and to enforce it nobly and fairly. Their ability to function effectively depends upon their credibility in that role. The community must trust that they do not operate by deliberately violating the very standards they are sworn to observe. When the police dishonor proper procedures, community respect for the police, and for the law itself, is undermined. (See In re Gilbert E., supra, 32 Cal.App.4th 1598, 1602.)

"Police officers are human beings, charged with the important, difficult, and "often competitive enterprise of ferreting out crime." ( Johnson v. United States (1948) 333 U.S. 10, 14 [92 L. Ed. 436, 68 S. Ct. 367].) Individual mistakes and overreaching will occur despite the best efforts of departments, supervisors, and officers acting in good faith. But our community should never be subjected to cynical efforts by police agencies, or the supervisors they employ, to exploit perceived legal loopholes by encouraging deliberately improper interrogation tactics. Such practices tarnish the badge most officers respect and honor."

Training and other materials showing deliberate violations of Miranda may be powerful evidence in habeas corpus proceedings, appeals and in motions to suppress.

POST TRAINING ON VOLUNTARINESS AND MIRANDA VIOLATIONS

Neal shows why counsel should carefully consider voluntariness claims whenever statements were taken in deliberate violation of Miranda. Prior to Neal, a number of courts of appeals had found some statements to be involuntary when officers questioned "outside Miranda." Prosecutors were certainly aware of these decisions. Rather than tell police to stop this practice and to obey Miranda, many instructors gave police advice on ways to conduct these interrogations so that a court would be less likely to find a statement involuntary.

The transcripts of two training videos that contain this advice are reprinted below. Counsel may wish to learn whether officers who have questioned their clients have viewed or been exposed to these videos.

The first video was broadcast by satellite on July 11, 1996 by POST to law enforcement agencies throughout California. POST broadcasts a one-hour training video every month to California law enforcement agencies. Each hour-long broadcast, called "Case Law Updates" (later called "Case Law Today"), contains several segments designed to bring police officers up to date on developments in the law.

The first transcript features (former) Deputy District Attorney Dan McNerney. He is now a Superior Court Judge. The video segment lasts 12:16 minutes, and is called "Miranda: Post-Invocation Questioning." As you will read, he offers strategies to officers who conduct interrogations.

The second transcript features (former) Deputy District Attorney Devallis Rutledge, who is now in private practice. It was broadcast by POST on July 9, 1998. This segment is 5:00 minutes in length and is called "Questioning 'Outside Miranda' for Impeachment." Rutledge addresses the holding in Peevy and underscores that even statements taken in deliberate violation of Miranda are admissible for impeachment. He characterizes the Court's condemnation of "outside Miranda" questioning as non-binding dicta.

Here are the transcripts of the broadcasts:

  1. July 11, 1996 - Dan McNerney, "Miranda: Post-Invocation Questioning"

    Today we're going to talk again about one of our favorite controversial topics on this program and that is the issue of continuing to question a suspect after they've invoked their Miranda rights. We've talked in other segments about this, other presenters have discussed it and given you different points of view, and we want to continue to apprise you of the evolving law in this area because it's a very hot subject right now, and the law is in a state of flux so we want give you as much information as you can so that you can make the best decision about what to in the course of conducting an interview with a suspect.

    Back in 1988, the Supreme Court of California in a case called People v. May, held that voluntary statements by a suspect taken after he has invoked his Miranda rights, may still be admissible, not in our case in chief, but to impeach them if they take the stand and testify differently. Basically the Court in People v. May put California on a par with the rest of the country which, since 1971 had been operating under Harris v. New York, which had held way back in1971, "Lookit, if you violate their Miranda rights by continuing to question them you can still use answers given for impeachment purposes." And the whole theory behind that was this: we want to honor Miranda, we want to advise them of their rights for silence and their right to counsel, and if they ask to remain silent, or if they ask for counsel, we want to afford them the rights that they're guaranteed under the Constitution. But, at the same time, in protecting the rights to counsel and the right to remain silent, we don't want to do anything to facilitate or encourage the commission of perjury. So if we violate somebody's Miranda rights by continuing to question them, we're not going to allow the prosecution to use that in our case in chief. On the other hand, if our defendant turns around and takes the stand and commits perjury by testifying to some other story, we don't want to let them get away with that. That's not what Miranda was designed for, so at that point we're going to let those statements come in, if they were voluntarily given. So ever since the California Supreme Court in May came down with this decision putting California on a par with the rest of the country, we on this program, or some of us in this program, have been encouraging you to continue to question a suspect after they've invoked their Miranda rights, and the reason we've encouraged you to do that we want to lock them into their story now, so they can't change it later on, so they can't start shifting gears when they see how the evidence develops.

    Despite the fact that that is the law, despite the fact we've been encouraging you to do this for the last eight years, some judges, including judges that may occasionally appear in this program, have taken exception to that and everybody's entitled to their opinion, and certainly judges are entitled to think that "You know, that's just not a good idea." But some judges in the courts of appeals have gone so far as to find a way to prohibit those kinds of statements from coming in even for impeachment purposes.

    Keep in mind that under May and under Harris v. New York, the requirement of those statements to be admissible for impeachment purposes, is that they be voluntarily given. In other words, if we coerce someone to talk to us, after they've invoked their Miranda rights, we cannot use coerced or involuntarily made statements for any reason, even for impeachment purposes. And some courts, some judges recently have seized on that issue, of the voluntariness of post-Miranda statements as a means of excluding them even for impeachment purposes. Courts have found in a couple of cases that we're going to find those statements to have been involuntarily made, because they were in violation of their Miranda rights, and because they were involuntarily made we're not going to allow you to use them for any purpose.

    Two cases we're going to talk about today are going to illustrate this point and this trend at least with a couple of courts. The first is a case that's been reviewed in this program previously, People v. Bey, back in 1993. What happens in the Bey case is that our suspect gets arrested for murder. He's taken to the police station, he's read his Miranda rights, and he asks for a lawyer. O.K. The police tell him something to the effect of this: "O.K., we understand you're not waiving your rights. You want a lawyer. That's fine. I'm going to continue to ask you some questions, but because you haven't waived your rights, I won't be able to use your statements in court." That's pretty much what the police tell him. So, the suspect then continues to talk and makes some statements that they use for impeachment purposes at trial. Case goes up on appeal and the Bey court describes this police or the detective's efforts to continue to question after Mr. Bey has invoked his Miranda rights, they describe this as "very troubling." They acknowledge that the police are obviously doing this to capitalize on Harris v. New York, and People v. May to preserve any statements that he may make for purposes of impeachment. But they say this is very troubling because the police did not "scrupulously honor" his invocation of his Miranda rights. So without really giving any other explanation, the court in Bey simply says, we find that these statements, made after he'd asked for a lawyer were obtained by coercion, and because they were obtained by coercion, they are involuntary, therefore they cannot and should not have been used for purposes of impeachment. No voluntariness, no can use for impeach.

    Now, last year in the case of In re: Gilbert E., the court relied on Bey to reach a similar conclusion. In Gilbert, you have got a juvenile who's out graffitiing up half the city, and he's arrested, he's taken to the station, he's given his Miranda rights, he's read his Miranda rights, and he refuses to waive them. Police continue to question him. Now as they're continuing to question him, he's looking at this big tape recorder that's sitting on the table, and the detective finally says to him, "Um, I'll tell you what- if I turn this tape machine off, would you talk to me?" and the kid says "O.K.". Police officer turns the tape machine off and the kid makes some statements that essentially cops out to the crime. Now, in the Gilbert E. case, the prosecution was somehow able to convince the judge to allow those statements to come in in the People's case in chief, and Gilbert was convicted of graffiti and vandalism. The court of appeals immediately gets the case and they say, "Hey, these statements were taken in violation of his Miranda rights, therefore they should not have come in in the case in chief." But the Gilbert E. court goes even further, they drag up the Bey case and they say, "You know, when we read Bey and we read the very troubling trend that we see among police officers continue to question suspects after they've invoked their Miranda rights, we agree with the court's conclusion that these kinds of statements are coerced." And therefore what the court in Gilbert E. says by way of dicta, but is going to be pretty persuasive as these issues get argued later on in subsequent cases, what the court in Gilbert E. says is that once the suspect has invoked his Miranda rights, anything he says after that in response to questioning is going to be "presumed involuntary" meaning "We the court are just going to just presume anything he says after that is involuntary which means that the burden is going to be on the government, the police and the prosecution, to persuade us that they were voluntary."

    So what does all this mean? What it means is, our job is getting harder with respect to obtaining information from a suspect after they've invoked their Miranda rights. I'm not telling you, "Stop questioning him after that." The law under Harris v. New York, and People v. May is what it is, and those are United States and California Supreme Court decisions, and we want to take advantage of that to the extent that we can, but we need to be mindful that some judges, in some recent cases have come out with language that severely frowns upon this practice, and are going to presume that that practice is eliciting involuntary statements. What that means is, that in addition to getting them to make additional statements, you also have to establish something that we can use as evidence that these statements were voluntarily made. So how do we do that? Somehow, if it can be done, you need to have the suspect to acknowledge a willingness to continue to speak even after he's invoked his Miranda rights.

    So for example, you read him his Miranda rights, and he invokes his right to silence. What can you do? You can ask him something like this: "Would it be O.K. if I continue to ask you a few questions about something related or even peripheral to the case?" Get him to acknowledge that it would be O.K. for you to continue to ask him those questions, or if he invokes his right to silence, you could say, "Lookit, would it be O.K. if I turn the tape recorder off?" or "Would it be O.K. if I had my partner step out of the room and just you and I talked just one-on-one." If after setting the criteria, he acknowledges a willingness to talk or to answer some of your questions, at least that puts something on the record that we have acknowledging that these additional statements that he's going to be giving are voluntarily made.

    What if he asks for an attorney? You could ask him something like, "Well, O.K., you have the right to an attorney, and since you asked for a lawyer, we're going to arrange to get you one. Now would it be O.K. if we continued to ask you some questions while we're arranging to get counsel here for you." If he says, "Yeah, just as long as I've asked for a lawyer, you tell me you're going to get me one, O.K., while we're waiting for the lawyer to get here, sure, I'll answer a few of your questions." Again, what you've done there is you put something on the record establishing a willingness on his part, voluntariness on his part to continue to engage in some kind of a dialogue.

    So, what this is going to do it is it's going to help us, it's going to put something on the record to help us overcome the presumption that the courts appear to be imposing on us now, the presumption of involuntariness of these post-invocation of Miranda rights questioning.

    These are some tips that I would give to keep in mind, and again, we're giving you as much information about this as we can so that you can make the best decision for you on your case, in putting your case together when you question a suspect after they've invoked their right to silence or counsel after being read their Miranda rights. That's it for today, I'll see you again with another update.

  1. July 8, 1998 - Devallis Rutledge, "Questioning 'Outside Miranda for Impeachment"

    Hello, welcome back. If your custodial suspect invokes Miranda, says he wants to remain silent or wants an attorney, and you continue to question him for the deliberate purpose of trying to obtain an impeachment statement, is that statement still admissible?

    Not so sure why we're still litigating this because, as long ago as 1971, in Harris v. New York, the U.S. Supreme Court said a statement lacking Miranda compliance, while inadmissible in the case in chief, is admissible for impeachment. They repeated that four years later in 1975 in Oregon v. Hass. They said, even after an invocation of counsel, a voluntary statement obtained thereafter by police, voluntary meaning you didn't use any force, threats or promises that it wouldn't be used, a voluntary statement obtained after invocation of counsel remains admissible for impeachment. They reconfirmed that, did the U.S. Supreme Court in 1990, in Michigan v. Harvey. So three times, count them, and mostly two to three decades ago, the Supreme Court said, yes, statements obtained without Miranda compliance, if they are otherwise voluntary and trustworthy, are admissible for impeachment if the defendant tries to testify differently at trial. I'm not sure why we have a flurry of litigation in California about this right now, but we do, so I want to bring it up to date although I suspect we'll get the final word again from the U.S. Supreme Court in a year or two. In the meantime here you are.

    In People v. May, the California Supreme Court, recall, said, by virtue of Proposition 8, we are bound by federal rules. We have to do whatever the U.S. Supreme Court says. That means they have to apply Harris, Hass and Harvey. And that's exactly what they did. In a recent California Court of Appeal decision People v. Branscombe, the California Court of Appeal said, well, when the guy invokes Miranda, you may either shut up and maybe have a chance that he will reinitiate later and give you a statement that you can use for all purposes, or you could continue questioning and maybe obtain an admissible impeachment statement. Here's their words, "Statements obtained through intentional violation of the Miranda rules may be used for impeachment purposes when, based on the totality of the circumstances, they are voluntarily made." Police officers are presented with a choice, says the Court of Appeal. They "may cease questioning upon defendant's invocation of the right to remain silent, or they may continue their discussion with the suspect and therefore lose the benefit of that evidence" in the prosecution's case in chief.

    The California Supreme Court came along right behind Branscombe in a case called People v. Peevy, and ruled unanimously, 7-0, that a statement is admissible even though the police deliberately took it for the conscious purpose of obtaining an impeachment statement following an invocation of counsel. They said, "Provisions of the California Constitution establish that statements taken in violation of Miranda are to be excluded from evidence only to the extent required by the Federal Constitution. We are bound, therefore, to apply the rules established in Harris and its progeny. The Harris rule applies even if the individual police officer violates Miranda and Edwards by purposefully failing to honor a suspect's invocation of his or her right to counsel." They said Harris is applicable when the interrogating officer deliberately fails to honor a suspect's request for counsel with the objective of securing evidence for impeachment purposes. Unanimously, they said. Affirming a unanimous court of appeal, which had affirmed a trial judge. All the way down the line everybody wearing a black robe had said the same thing. Yes, that statement is perfectly admissible even though the police officer deliberately took it for purposes of impeachment.

    A caution, you can't use it for any purpose, including impeachment, if you render it involuntary by assuring the person that it will be off the record and cannot be used against them in court. So you would not want to do that if you had decided to take an impeachment statement after Miranda invocation.

    Another caution. You see sometimes the newscasters giving you the news and then they want to give you their opinion about that. They want to add something that's not the facts, it's just their commentary. And so at the bottom of the screen it says, opinion or commentary. When a court does that they call it dicta. They've got the ruling, which might be the news, and then they've got their commentary, which is called dicta. It means this is not binding on anybody. This is not a statement of the law. This is just us expressing our personal opinions about something. In Parts B and C of their opinion in Peevy, the California Supreme Court expressed its displeasure with the tactic of questioning outside Miranda in order to obtain an impeachment statement. They made it very clear they don't approve of it. They thought in their opinion that it was illegal, they said. That's the word that they used, though they were unable to cite to a U.S. Supreme Court case, since there isn't one, saying that it's illegal. The U.S. Supreme Court has consistently said this an evidentiary rule that will limit use of the statement in court. They have never said it is illegal to question without Miranda compliance. Nor, I will bet my money, will they ever. But the California Supreme Court in its commentary, in its dicta said, this is illegal, it's improper.

So before you decide whether or not you want to go outside Miranda and take an impeachment statement that will be admissible if it's otherwise voluntary, you may want to do what we always caution you to do, seek advice from your departmental legal adviser, local prosecutor, city attorney or county counsel, whoever you turn to for advice. I commend you to their advice. As to the admissibility of the evidence, a statement deliberately taken outside Miranda, if it's otherwise voluntary, is admissible for impeachment. People v. Peevy. You're up-to-date as of now. I'll see you next time.

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