So you think you can dance?  While not a new dance craze, the Miranda Two-Step should be on everyone’s radar and is worthy of discussion.  Thanks to Second Circuit Blog for bringing it up.

Here’s the deal.  Cops engage in a deliberately unconstitutional interrogation of a defendant.  No Miranda warnings, coercive, whatever.  They induce the defendant to give a statement.   A little later, they give Miranda warnings and then get the defendant to repeat the statement by using the fact that it’s nothing new, he’s already told them and it’s too late to take it back.  Boom.  Good confession.

Sound familiar?  Missouri v. Seibert, 542 U.S. 600 (2004).  Justice Souter’s opinion for the Court explains that this doesn’t happen by chance.  It’s another instance of an intentional law enforcement strategy calculated to circumvent a constitutional right. 

The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation… . At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.”

While Seibert recognizes not only the problem, but the Machiavellian scheme by law enforcement, many courts refuse to admit or acknowledge that this is for real.  Cops, ever vigilant, have figured out that they shouldn’t openly admit that this is what they are intentionally doing, and hence lie thought their teeth (but with the best of intentions) about it. 

Also, variations on a theme have developed, such as the manipulative interrogation followed by the tape-recorded confirmatory statement.  While Seibert and its progeny tend to be highly fact specific, with some courts doing cartwheels to explain why the obvious application of this technique does not fall within the rule, the rationale offers some decent argument to be made to the jury as to why they should not buy the step 2 interrogation as reflecting a true admission, after the police manipulated the step 1, especially where the stop 2 is recorded and the step 1 is left to the officer’s fertile imagination.