New Miranda Rules for detectives in two-step Interrogations – State v. O’Neill
Last week’s New Jersey Supreme Court decision in State v. O’Neill establishes new procedures for New Jersey detectives who conduct two-step interrogations of criminal suspects. The two-step interrogation technique is commonly referred to in the case law as “Question First – Warn Later.” Under this procedure, the detectives will interview a criminal suspect who is in custody for Miranda purposes without providing the required warnings about the right to remain silent. Then, only after the suspect has incriminated himself, do the detectives Mirandize the defendant and take additional statements that buttress, corroborate and repeat the earlier admissions. Typically, the State will discard the pre-Miranda statements at trial and utilize only those that were made after the warnings were given.
In the O’Neill case, writing for the Court, Justice Albin found that current federal law on the propriety of this interrogation technique by the police is unclear. Accordingly, the O’Neill case will be decided under state constitutional law. Rather than completely eliminating the two-step interrogation process, the Court provided a set of guidelines for motion judges to consider when ruling upon the admissibility of a confession obtained in a two-step interrogation case. Motion judges are instructed to apply a totality of the circumstances test and look at the following factors:
(1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights;
(2) the proximity in time and place between the pre- and post-warning questioning;
(3) whether the same law enforcement officers conducted both the unwarned and warned interrogations;
(4) whether the officers informed defendant that his pre-warning statements could not be used against him; and
(5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning.
Of particular importance for motion judges will be whether the defendant was informed by the police that his “unwarned statements” cannot and will not be used against him. Providing such information would constitute powerful evidence that the defendant’s subsequent waiver of his right to remain silent was knowing, voluntary and intelligent. Other factors such as brief pre-warning questioning which does not elicit an admission or a substantial break in the time between the pre-warning and post-warning interrogation will militate in favor of a finding by the judge that there had been a voluntary waiver.
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