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 ....