Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing.  The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence.  We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth.  In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing.  But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury. 

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).