Doing the Interrogation “Two-Step” Again

Doing the Interrogation “Two-Step” Again

Robert C. Phillips
DDA (Ret.)
April, 2016

Over three decades ago, the United States Supreme Court decided the case of Oregon v. Elstad,[1] where it held that when law enforcement officers talk to an in-custody suspect, a few un-Mirandized questions and answers do not necessarily poison a later Miranda[2] waiver and confession.  Clever police interrogators, seeing a potential loophole in the admonishment and waiver requirements of Miranda, latched onto this decision like ice cream on warm apple pie, thinking they could pervert the Elstad rule into a viable interrogation tactic and increase the odds of a waiver and confession.

Think about it.  How nice would it be to be able to revert to the good old pre-Miranda days when a police interrogator didn’t have to try to convince a criminal suspect that remaining silent, or to at least to take advantage of an offer of free legal advice before talking, was really in his best interest   Under Elstad, an officer could cleverly seek a full confession without complicating things with that pesky old Miranda admonishment and waiver rule.  Then, once the proverbial “cat (is) out of the bag,”[3] the officer could dutifully comply with the admonishment and waiver rules of Miranda and get the confession for a second time.  Using such a tactic, the average beaten suspect, unschooled in the psychological pressures at work, would likely see no reason to invoke his rights once he’s already told officers everything.  At trial, then, although the jury would never hear the first, illegally obtained confession, the second confession would be admitted into evidence against him.

If you think that ....

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