Vol. 14 No. 16- Follow-Up to Vol. 14 No. 14 Client Alert dated November 17, 1999

December 3, 1999

To: All Police Chiefs and Sheriffs

From: Paul R. Coble

Follow-Up to Vol. Fourteen No. Fourteen Client Alert dated November 17, 1999


Our recent Client Alert Memorandum on the Ninth Circuit decision in California Attorneys for Criminal Justice, et al. v. City of Santa Monica, et. al. has generated some concern on part of the Office of the Attorney General, as well as some District Attorneys. Concerns have focused on the first sentence of the fourth paragraph where we stated that the Ninth Circuit held that any interrogation after a suspect has invoked his Miranda rights is a deliberate violation of the suspect’s Fifth Amendment rights.

It has been correctly pointed out that the federal court of appeals’ holding was that there must be a continued interrogation after invocation of Miranda plus some additional coercive or misleading conduct on the part of the interrogating officer. Thus, in a technical sense, interrogation alone would not result in violation so long as the continued interrogation was not accompanied by some coercive or misleading conduct on the part of officers.

But the problem with this technical distinction is that virtually anything an officer says or does in furtherance of the continued interrogation might be found by the federal court to be a knowing violation of the suspect’s constitutional rights. For example, in one of the cases addressed in California Attorneys, supra, the court found wrongful conduct on the part of the officers in simply telling the suspect that the product of the continued interrogation would not be used against him in a subsequent proceeding, but failed to distinguish for the suspect that his statements outside of Miranda could be used for impeachment or as the basis for enhancement of criminal penalties.

Therefore, it must continue to be our advice to law enforcement agencies that officers not continue an interrogation beyond the point where the suspect invokes his rights under Miranda as virtually anything that the officers do in furtherance of the interrogation may result in a finding by the federal courts of a knowing and deliberate violation of the suspect’s constitutional rights.

As always, if there are questions or you wish to discuss this issue in greater detail, please do not hesitate to call.