Seventh Circuit Criminal Case of the Week: Doing the Interrogation Two-Step

As all law students (and viewers of crime dramas) know, an incriminating statement generally cannot be used against a defendant if the defendant was not given the basic Miranda warnings before the statement was elicited by police.  But what if the defendant gives a second, warned statement after a first, unwarned statement?  In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court seemed to give a green light to the use of such statements.  More recently, though, the Court ruled that a second statement was not admissible in Missouri v. Seibert, 542 U.S. 600 (2004), in which police officers deliberately employed a two-step interrogation technique in order to minimize the effectiveness of the Miranda warnings. 

The trouble is that no single opinion drew a majority in Seibert.  A plurality opinion adopted a multifactor test for two-step interrogations, in which the reviewing court would determine whether a “reasonable person in the suspect’s shoes” would have understood that it was possible to refuse further questioning after the Miranda warnings were given.  Meanwhile, Justice Kennedy, providing the crucial fifth vote for the Court’s holding, wrote separately and advocated a different test that focused on whether the police were deliberately circumventing Miranda.  The Seibert split has caused continuing confusion in the lower courts.  (As Jon Deitrich observed in a post earlier today, Justice Scalia recently saved the Supreme Court from a similarly divided result in Arizona v. Gant.)

The Seventh Circuit had an opportunity to choose between the plurality and Kennedy approaches in its opinion last week in United States v. Heron (No. 07-3726). 

The court (per Judge Wood) reasoned that it was not required to follow the Kennedy approach as the narrowest ground on which a majority of the Supreme Court agreed.  The court also identified some tension in earlier Seventh Circuit decisions interpreting Seibert, noting one that seemed to endorse the Kennedy approach and another that seemed to endorse the plurality approach. 

However, after a nice discussion of the jurisprudential difficulties posed by Seibert, the court ultimately decided not to decide, figuring that Heron’s second, warned statement was admissible under either the plurality or the Kennedy approach.

Heron did not walk away empty-handed, though: the court reversed his conviction on the alternative ground that his trial should have been delayed when a key government witness changed his story about Heron’s involvement in the offense the day before the trial began.  Notwithstanding defense counsel’s understandable desire to have an opportunity to investigate the new testimony, the trial judge denied counsel’s motion for a continuance without meaningful explanation.  In the Seventh Circuit’s view, this amounted to an abuse of the trial judge’s discretion.

The Seventh Circuit had two other new opinions in criminal cases last week:

United States v. DiSantis (No. 07-3692) (affirming conviction of police officer for civil rights violations notwithstanding officer’s objections to jury instructions).

United States v. Gooden (No. 08-3240) (affirming reasonableness of defendant’s 50-year sentence for six-day violent crime spree).

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