Suspect Reinitiates Questioning After a Miranda Assertion (Part III)

"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College

“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”

Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.

TITLE: Suspect Reinitiates Questioning After a Miranda Assertion

This is the third in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases. So consider the following question:

You have arrested a suspect for spousal rape and aggravated assault by threatening his wife with a knife. Upon being given a Miranda admonition, he demands counsel. You give the suspect your business card, telling him that you will not question him further, but you would still like to hear his side of the story. If he should want to speak in the future, he should feel free to call you. The defendant is arraigned and a public defender is appointed to represent him. At PX, he is bound over for trial

Three weeks later, you receive a phone call from the suspect. He says he's had a change of mind and wants "to get things off his chest”. You contact him at jail, confirm that no one has promised or induced him to make the call, give Miranda, the defendant waives, and incriminating statements are obtained.

Later at a “402” motion, the public defender objects to the introduction of these statements on Sixth Amendment (Massiah) grounds because the officer failed to contact her first, nor was she present at the time of the interview.

The statements should be ....

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