Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night’s episode of Jeopardy! featured the category “A Murder Investigation,” with The Closer’s Kyra Sedgwick reading the clues. The $1000 clue in the category was: Getting confessions, Brenda’s specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you’ve waived your rights under this 1966 decision And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime. An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

This is the issue of confession contamination. The issue is not new, but Professor Garrett’s research will go some way in establishing the point to be considered.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.” . . . Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent. “You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

This is the issue I talk about frequently with bad investigations – confirmatory bias. These same issues can and do arise in court-martial under the UCMJ.

Ernesto Arturo Miranda died on 31 January 1976, in prison. Although his notable case resulted in a new trial he was reconvicted. He died in a knife fight.

The case of Miranda v. Arizona has not died yet, or has it, or will it soon. The American Constitution Society has a piece, Examining Miranda’s Future.

In spring the Obama administration announced it would seek a new law allowing investigators to interrogate terrorism suspects without informing them of their Miranda rights. Then in July the Supreme Court ruled in Berghuis v. Thompkins[.] During a recent ACS panel discussion, constitutional law experts discussed Miranda’s future in light of the recent court rulings, such as Berghuis, and the administration’s announcement that it would seek a broad exception to the Miranda rule, established in the 1966 landmark ruling in Miranda v. Arizona.

Article 31, UCMJ, formed part of the thinking when Miranda were decided. Interestingly, in light of the on off discussions of the use of foreign law in U. S. appellate considerations, the Court referred also to self-incrimination practices in Britain, Scotland, India (under British rule), and Ceylon.

The English procedure since 1912 under the Judges’ Rules is significant. As recently [384 U.S. 436, 487] strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police. 57 [384 U.S. 436, 488] The right of the individual to consult with an attorney during this period is expressly recognized. 58 The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation. 59 In India, confessions made to police not in the presence of a magistrate have been excluded [384 U.S. 436, 489] by rule of evidence since 1872, at a time when it operated under British law. 60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895. 61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him.

Ah yes, the Judges Rules (prior to the Police Evidence Act). Now how did that go, “I must caution you that you are not obliged . . . “

The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party. The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.

Seems to me the result would be the same in a court-martial where the issue could be Article 31, UCMJ, as well as Miranda.

As for the extraterritorial application of the statute, the Court found that because Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[ ] in … interstate or foreign commerce,” Congress plainly intended that the statute sweep broadly and apply extraterritorially. The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the “nationality” principle.

In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:

The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.

Slip op. at 13.

As an example, DA Form 3881, states:

(For personnel subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both. (For civilians not subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. I understand that this lawyer can be one that I arrange for at my own expense, or if I cannot afford a lawyer and want one, a lawyer will be appointed for me before any questioning begins.

The Navy IG uses this format:

I have the right to consult with lawyer/counsel prior to any questioning. This lawyer/ counsel may be a civilian lawyer retained by me at my own expense, a military lawyer appointed to act as my counsel without cost to me, or both; I have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview.

CAAF had decided the Shatzer break in custody situation for military cases, primarily in United States v. Vaughters, 44 MJ 377 (C.A.A.F. 1996).

The granted issue in this case challenges the holding of the Court of Criminal Appeals that Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), did not apply in appellant’s case. See generally Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). In Edwards, the Supreme Court held that once an individual in custody asserts his right to counsel under the Fifth Amendment all interrogation must cease until counsel is “made available” or the accused “initiates further communication…with the police.” Id. at 484-85. The service court below held that custodial interrogation may be reinitiated without counsel being present where a suspect had been released from custody for 19 days, provided a meaningful opportunity to consult with counsel, and subsequently waived his right to counsel. We agree with the Court of Criminal Appeals that this holding does not violate Edwards. See United States v. Schake, supra. In Schake, this Court addressed the question whether Edwards v. Arizona, supra, was applicable in the break-in-custody (6 days) context. A majority of this Court held [that a six day break in custody was a sufficient break so that Edwards did not bar the confession.]

United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996).

In Shatzer the Court holds that a “break in custody” allows the police to restart questioning a suspect who invoked. This is an exception to Edwards v. Arizona, 451 U.S 477 (1981). Erin Miller of SCOTUSBlog notes that seven justices would hold that if there is a break of at least 14 days, Edwards does not even apply. Vaughters had a 19 day break in custody.