Less trumpeted than in prior years—not all issues are sexy—there have nevertheless been some significant confession opinions issued in recent months. Decisions on whether an inmate is automatically in custody for purposes of Miranda, the relevance of age to the custody inquiry, and clarification of the dual rights to counsel have been reached. The admissibility of pre-arrest, pre-Miranda statements as substantive evidence has also been re-broached but, in both state and federal high courts and the Fifth Circuit, remains undecided.
Inmate interviews may not require Miranda warnings
As we all know, “custodial interrogation” involves a “custody” prong, and if custody does not exist, there is no need to consider the “interrogation” prong. We all know, too, that in determining custody, the focus is whether a reasonable person would feel free terminate the interview and leave.1 But for many years it was an open question in Washington D.C., as to whether an incarcerated person was automatically in custody for purposes of Miranda. Catching up with the Court of Criminal Appeals (finally), the Supreme Court of the United States (SCOTUS) has now confirmed that such a person is not inevitably so.
Fields was serving a state prison sentence in Michigan when, one evening, a corrections officer took him to a conference room to be interviewed by two sheriff’s deputies about allegations that, prior to prison, he had sexual relations with a child.2 Initially and later on, Fields was told that he was free to leave to return to his cell. While the deputies were armed, Fields was free of all restraints and the door to the room was not consistently shut. Although, at one point, he became agitated and yelled so that a deputy allegedly warned him that he could cooperate or leave, he eventually confessed. The interview lasted for about five hours and Fields neither received Miranda warnings nor an admonishment that he did not have to talk. Before trial, he sought to suppress his confession on grounds that he told the deputies several times he didn’t want to talk. The state courts affirmed but the Sixth Circuit, relying on what it perceived as clear SCOTUS precedent, reversed.
Not quite gobsmacked, the Supreme Court tolerantly explained that the lower court had misread precedent and that, in fact, the SCOTUS had never before decided the issue whether, for purposes of Miranda, a prisoner is always in custody when isolated from the general prison population and questioned about conduct outside prison. But after reviewing “all the features of the interrogation” including “the language used to summon the prisoner to the interview and the manner in which the interrogation was conducted,” the court held that Fields had not been taken into custody for purposes of Miranda. The three elements of 1) imprisonment, 2) questioning in private, and 3) questioning about events in the outside world are not necessarily enough to create custody for Miranda purposes. The absence of restraints or threats, the facilities, and the offer of food and water all supported a finding that Fields could leave and return to his cell.
Five years ago, under similar circumstances, the Court of Criminal Appeals (CCA) decided Herrera.3 The majority of the court may have had to wait for affirmation of its decision, but its analysis, including a review of cases from other jurisdictions, was spot on. Moreover, the CCA additionally held that article 38.22 of the Code of Criminal Procedure was not violated by admission of a confession obtained this way, albeit because the defendant failed to meet his burden to show that—beyond the fact he was incarcerated—he was in “custody” for purposes of Miranda.
The right to counsel invoked at magistration is independent from that at a subsequent custodial interrogation
You may remember Pecina from the Court of Criminal Appeal’s opinion in 2008, where the court held that the defendant had invoked his 6th Amendment right to counsel at magistration.4 The decision is in line with Rothgery v. Gillespie.5 Well, Pecina was kicked back down by the CCA and bounced right back up from the lower appellate court again. This time, the question was whether the defendant had invoked his 5th Amendment right to counsel at magistration.6
Pecina injured himself while stabbing his wife to death. Officers obtained his arrest warrant and took a magistrate to the hospital to warn him.7 The magistrate told Pecina that the officers wanted to speak to him. Out of the officers’ presence, the magistrate warned him, and Pecina affirmed both that he wanted a court-appointed attorney and that he wanted to talk to the officers. Back with the officers, he repeatedly waived his rights and gave a statement. The trial judge, finding that Pecina had effectively waived his right to counsel, denied a motion to suppress. The Second Court of Appeals ruled that Pecina had waived both his 5th and 6th Amendment rights to counsel, but the CCA, holding that he had invoked his 6th Amendment right, remanded for a harm analysis. Maybe chagrined, the intermediate court then held that Pecina had invoked his 5th Amendment right to counsel. This was so despite the SCOTUS issuing in the meantime Montejo v. Louisiana.8
In the CCA’s second review of this case, Judge Cochran writing for the majority usefully described the 5th Amendment right as a right to “interrogation counsel” and the 6th Amendment right as a right to “trial counsel.”9 She continued by clarifying the two rights and stating that a defendant’s invocation of the right to counsel during an art. 15.17 magistration hearing “says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation.” Further, she maintained, in correcting the intermediate court’s incomplete statement of the 5th Amendment right to counsel, that to protect the “privilege against self-incrimination, the police may not continue or reinitiate custodial interrogation of a suspect who has previously requested assistance of counsel after the police informed him of his right to counsel at the beginning of custodial interrogation.”
Here, Pecina had undergone magistration, then, separately, custodial interrogation, and his invocation of his right to counsel at magistration did not carry over to custodial interrogation. Thus, by voluntarily speaking to the officers, he had waived both his 5th and 6th Amendment rights to counsel for purposes of custodial interrogation. When wrangling with the 5th and 6th Amendment rights, this case, like Montejo, is far too important not to understand. Fortunately, the law has become much simpler.
Youth informs the custody inquiry
Historically, in deciding whether a person is in custody, we must consider all the circumstances. In other words there is no focus on particular factors—even if there is recognition of a suspect’s peculiarities such as his health, IQ, language, etc. In fact, less than a decade ago, Justice Kennedy writing for the majority of the SCOTUS reversed the Ninth Circuit for placing undue reliance on a suspect’s youth and inexperience with law enforcement when deciding whether he was in custody.10
In a sharp break from traditional analysis, however, the SCOTUS has now ruled that a person’s youth is relevant to the custody inquiry for purposes of Miranda. Once again, the court draws on its death penalty opinions to transform the law. As age was already a factor under the objective test, the court has plainly added weight to this factor in J.D.B.
J.D.B., a 13-year-old, was questioned by police near the scene of two homes that had been burgled.11 His grandmother and aunt were also questioned. Five days later, after learning that a camera similar to one stolen had been seen at school in J.D.B.’s possession, a juvenile investigator visited the school to re-interview the youth. The investigator advised the school administration of his intent and a uniformed police officer with the school escorted J.D.B. out of class to a closed-door conference room where the investigator questioned J.D.B. for at least half an hour. The two officers and two school administrators were present, J.D.B. was not given Miranda warnings, he was not told that he was free to leave, and his grandmother was not notified. Under the urging of the assistant school principal and the investigator and told that, regardless, the case was going to court and that he faced the prospect of juvenile detention in the meantime, J.D.B. confessed. (OK, so the facts could have been better). He gave a written statement and was then permitted to leave so he could catch the bus home. The trial court denied a motion to suppress filed on grounds that J.D.B. was improperly denied Miranda warnings, and the state appellate court affirmed.
The closely divided SCOTUS (Kennedy, J., was the swing vote), observing the coerciveness of most custodial interrogation, recognized recent studies indicating that this is a “troublesome” and especially “acute” problem with juveniles. Although the inquiry of whether a suspect is in custody remains objective—not involving the actual mindset of the suspect—the SCOTUS rejected any notion that a child’s age has no place in the inquiry:
So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances unknowable to them nor to anticipate the frailties or idiosyncrasies of the particular suspect whom they question.12
In an apparent attempt to temper this departure from its precedent, the majority continues: “This is not to say that a child’s age will be a determinative, or even a significant, factor in every case.” And with that comment—one that is more disturbing than ameliorative—we can but wonder if the decision means anything. Is this the start of a slippery slope as other inherent qualities of suspects are highlighted during the custody inquiry, thereby transforming the objective test into one that is increasingly subjective? Or does this mean that the issue of age during the custody inquiry will evade principled results at the convenience of the court deciding the issue? If either is the result, this softening judicial mindset could become more than a troublesome and acute problem for law enforcement.13 In any event, the case was remanded for the state courts to determine whether J.D.B., taking into account all of the relevant circumstances of the interrogation including J.D.B.’s age, was in custody.
Federal courts split on pre-arrest, pre-Miranda silence
It is just about axiomatic now that a defendant’s post-arrest, post-Miranda silence may not be used against him in court.14 But the issue of whether the prosecution may use a defendant’s pre-arrest, pre-Miranda silence against him is much less certain. The CCA, Fifth Circuit, and SCOTUS have yet to dispositively decide the issue, but the recent Fifth Circuit case of Ashley recognized the split in the circuits.15
Ashley was a United States Postal Service (USPS) worker on duty the days that letters containing gift cards passed through the facility where she worked. Each time, a few days later, store videotapes recorded her husband—one time accompanied by her—using stolen gift cards to purchase items. A USPS investigator attempted to question the pair, but they refused to discuss the matter. At Ashley’s trial, however, her husband testified that he received the cards by trading merchandise with an unidentified Hispanic person. In its case-in-chief, the prosecution offered and the trial court admitted Ashley’s pre-trial silence before she had been taken into custody or admonished of her Miranda rights.
On appeal, although Ashley claimed the introduction of the evidence was impermissible, the court found any error harmless and did not reach the propriety of the admission. Nevertheless, helpfully, the court did acknowledge decisions from the seven other circuits that had decided the matter. The Fourth, Ninth, and Eleventh Circuits permit the use of such evidence as substantive evidence of guilt while the First, Sixth, Seventh, and Tenth Circuits do not. The former hold that the evidence is admissible because the government has not yet implicitly assured a defendant that his silence would not be used against him. The latter hold that with some exceptions including impeachment, a defendant has a right to remain silent even before arrest because to hold otherwise would impair the constitutional right that does not even require the protection of the Miranda warnings for its existence. Interestingly, an opinion of the Ninth Circuit16 interprets a 1986 opinion of the Fifth Circuit as supporting the position that pre-arrest, pre-Miranda silence can be used, but while the Fifth Circuit might have hinted so, it did not decide so.17
The CCA, a dozen years ago in a footnote in Lee, similarly observed the split in the circuit courts. It provided a list of cases that might serve to inform the ultimate decision.18 Also, nearly a quarter of a century ago, by way of dicta in Waldo, the CCA also declared that “[p]re-arrest silence is a constitutionally permissible area of inquiry.”19
In the intermediate state courts, the most recent expression on the topic is Steadman.20 There, the Eleventh Court of Appeals held that the pre-arrest silence of a defendant who has not received any Miranda warnings is a constitutionally permissible subject of inquiry. But the issue of whether a defendant’s pre-arrest, pre-Miranda silence can be used against a defendant as substantive evidence is ripe for dispositive decisions from the CCA and the SCOTUS. We are well past the “best by” date on this particular issue. Although one might not have thought so, judging by the two-decades-old-split in the federal circuits, the question is a close one.
Surprise! Within minutes of this edition of The Prosecutor going to the printer, the Court of Criminal Appeals ruled in Salinas that a defendant’s pre-arrest, pre-Miranda silence is not protected by the 5th Amendment.21 Wishes do come true.
1 See, e.g., Berkemer v. McCarty, 468 U.S. 420 (1984); Stansbury v. California, 511 U.S. 318 (1994) (per curiam). J.D.B. reveals below, however, that the test is no longer quite so objective now that age may take greater prominence in the inquiry.
2 Howes v. Fields, 182 L.Ed.2d 17 (2012).
3 Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007).
4 Pecina v. State, 268 S.W.3d 564 (Tex. Crim. App. 2008) (“Pecina II”).
5 554 U.S. 191 (2008) (6th Amendment right to counsel attaches at an art. 15.17 magistration hearing).
6 Pecina v. State, No. PD-1095-10, 2012 Tex. Crim. App. LEXIS 143 (Tex Crim. App. Jan. 25, 2012) (“Pecina IV”).
7 The standard magistrate’s warnings were supplemented by a warning that the defendant “may be subject to deportation if you are not a U.S. citizen.” Id. at n.4. Such a warning is not required by statute and it may be better not given on grounds of chilling any interrogation or because it is more than the law requires for the proceedings and is simply something else the defendant can raise on appeal. See Tex. Code Crim. Proc. art. 15.17.
8 556 U.S. 778 (2009) (overruling Michigan v. Jackson and clarifying the scope of the two rights to counsel).
9 Former Presiding Judge McCormick had identified the two rights in another practical fashion: the 5th Amendment addresses a “suspect” while the 6th Amendment addresses an “accused.” See Holloway v. State, 780 S.W.2d 787, 790 (Tex. Crim. App. 1989).
10 Yarborough v. Alvarado, 541 U.S. 652, 666 (2004) (“Our opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration”).
11 J.D.B. v. North Carolina, 131 S.Ct. 1553 (2011).
12 Citations and quotation marks omitted.
13 We can be sure that it will not take the defense bar long to latch onto the majority’s analysis in an attempt to spread it to a suspect’s other peculiarities.
14 See, e.g., Doyle v. Ohio, 426 U.S. 610 (1976); Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986).
15 United States v. Ashley, 664 F.3d 602 (5th Cir. 2011).
16 United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998).
17 United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996).
18 State v. Lee, 15 S.W.3d 921, 924 n.5 (Tex. Crim. App. 2000), overruled on other gr’ds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).
19 Waldo v. State, 746 S.W.2d 750, 755 (Tex Crim. App. 1988) (deciding the inadmissibility of post-Miranda silence).
20 Steadman v. State, 328 S.W.3d 566, 568-71 (Tex. App. — Eastland 2010), rev’d on other gr’ds, No. PD-1356-10, 2012 Tex. Crim. App. LEXIS 474 (Tex Crim. App. March 7, 2012).
21 Salinas v. State, No. PD-0570-11, (Tex Crim. App. April 25, 2012).