Chapter 43: Miranda Waivers
Generally
Chapter structure
(1) "Knowing" Waivers
(2) "Intelligent" Waivers
(3) Voluntary Waivers
(4) Express and Implied Waivers
(5) Timely Waivers
(6) Waivers by Minors
(7) Pre-Waiver Communications
When waivers are required: Officers must obtain a Miranda waiver before interrogating a suspect who is in custody. See Chapter 42 Miranda: When Compulsory.
Questioning minors: There are special restrictions on interrogating minors. See “Waivers by Minors,” below.
Knowing, intelligent, voluntary: Because a waiver is an “intentional relinquishment or abandonment of a known right,”[1] a Miranda waiver must be “made voluntarily, knowingly and intelligently,”[2] as discussed below.
Burden of proof: Prosecution; preponderance of the evidence.[3]
Totality of circumstances: In determining whether the defendant knowingly, intelligently, and voluntarily waived his rights, the courts consider the totality of circumstances surrounding the interview.[4]
Recording waivers and interviews: See Chapter 47 Interrogation (General Principles, Recording interviews and waivers).
"Knowing" Waivers
: A waiver is “knowing” if the suspect was correctly informed of the rights he waived and the consequences of doing so.[5] This will ordinarily occur if officers provided the suspect with a Miranda warning.
The Miranda warning: There are three components to a Miranda warning:
(1) Right to remain silent: The suspect must be informed of his Fifth Amendment right not to answer any questions.[6] Standard warning: You have the right to remain silent.
(2) Right to counsel
Three elements: The suspect must be informed that he has the following rights:
(a) The right to consult with an attorney before questioning.
(b) The right to have an attorney present during questioning.
(c) The right to have an attorney appointed if he cannot afford one.[7]
Standard warning: You have the right to talk to a lawyer and to have him present while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning.
(3) Consequences of waiving: The suspect must be informed of the consequences of waiving his Miranda rights.[8]
Standard warning: Anything you say may be used against you in court.
“Can and will be used”: Officers need not—and should not—tell suspects that anything they say “will” be used against them because it would be false. (Most things that suspects say during interrogation cannot or will not be used against them.) Instead, officers should notify them that anything they say “may,” “might,” or “could” be used against them.[9]
“You can invoke at any time”: Officers will sometimes supplement the standard warning by telling the suspect that, if he waives his rights, he can stop answering questions at any time. Although this is not a requirement,[10] it is an accurate statement of the law and is not objectionable.[11]
Procedure: Rules and recommendations
Incorrect Miranda warnings: If officers misrepresented the nature of the Miranda rights or the consequences of waiving them, a subsequent waiver may be deemed invalid on grounds that it was not “knowing and intelligent.”[12]
Mirandize every suspect: While most people may know their Miranda rights,[13] officers must Mirandize everyone who is subjected to custodial interrogation because prosecutors must prove such awareness by means of direct evidence.[14]
Language may vary: Officers are not required to recite the Miranda warnings exactly as they were enumerated in the Miranda decision or as they appear in departmental Miranda cards.[15] Instead, they are required to “reasonably convey” the Miranda rights.[16]
Miranda cards recommended: It is usually best to read the warnings from a standard Miranda card, especially if the warning-waiver dialogue is not recorded.[17] This will help enable officers to prove that the warning was accurate by testifying that he recited it from a Miranda card, then reading to the court the warning from that card or a duplicate.[18]
Minors: See “Waivers by Minors,” below.
"Intelligent" Waivers
: Suspects must not only know their rights in the abstract, they must have understood them. This is what the courts mean when they say that a waiver must have been “intelligent.”[19]
Express statement of understanding: Technically, officers are not required to obtain an express statement from the suspect that he understood his rights. But it is not recommended because it creates uncertainty and generates an additional issue for the trial court to resolve. Furthermore, an express statement of understanding may be necessary if the suspect’s waiver was implied, or if he was mentally impaired. Standard question: “Did you understand each of the rights I explained to you?” If he says yes, that is usually enough.[20]
Circumstantial evidence of understanding: If the suspect said he understood his rights, but claimed in court that he did not, the court may consider circumstantial evidence of understanding.[21] The following circumstances are frequently noted:
Suspect’s background, experience: The suspect’s age, experience, education, background, and intelligence.[22]
Prior arrests: Whether the suspect had been previously arrested or Mirandized.[23]
Previous invocation: Whether the suspect had previously invoked his rights.[24]
Clarifying rights: If the suspect said or indicated that he did not understand his rights, officers must try to clarify them.[25] Also see Chapter 44 Miranda Invocations (What Constitutes an Invocation, Ambiguous remarks as invocations).
English as second language: Miranda rights that are explained in English may be intelligently waived even though English was the suspect’s second language. See this endnote for examples.[26]
Mentally impaired suspects: Suspects who are mentally impaired due to the ingestion of drugs or alcohol, lack of education, a low IQ, a learning disability, or mental illness will be deemed to have understood their Miranda rights if (1) they said they understood them, and (2) their answers to the officers’ questions were responsive and coherent.[27]
Under the influence of alcohol or drugs: See this endnote for examples.[28] Also see Chapter 47 Interrogation (Suspect’s Power of Resistance, Drugs and alcohol).
Heroin withdrawal: See this endnote for examples.[29]
Mental illness: See this endnote for examples.[30]
Learning disability: See this endnote for examples.[31]
No other information is required: Officers need not furnish suspects with any additional information, even if it might have been useful in deciding whether to waive.[32] For example, officers need not inform them of the subjects they would be discussing,[33] the nature of the crime under investigation,[34] the possible punishment upon conviction,[35] or the “severity of [their] predicament, or the chances [they] will be charged.”[36] In addition, if they have not been arraigned on the crime under investigation, they need not be notified that their attorney is present and wants to talk to them.[37] See Chapter 49 Questioning Charged Suspects.
Utilizing deception: Although officers must correctly explain the Miranda rights, they may ordinarily lie to the suspect about other matters before obtaining a waiver.[38] For example, waivers have been deemed knowing and intelligent even though officers told the suspect that his victim was “hurt” when, in fact, she was dead;[39] or when FBI agents told the suspect that they wanted to question him about “terrorism” when, in fact, he was under investigation for having sex with children.[40] Also see Chapter 47 Interrogation (Interrogation tactics, Deception).
Voluntary Waivers
: A suspect’s decision to waive his rights must have been voluntary.[41]
Generally: The principles and circumstances that are relevant in determining the voluntariness of a waiver are essentially the same as those for determining the voluntariness of a statement.[42] Do not confuse voluntary Miranda waivers with voluntary statements. A waiver is involuntary if officers coerced a suspect into waiving his rights. A statement is involuntary if officers, after obtaining a voluntary waiver, coerced him into making an incriminating statement. See Chapter 47 Interrogation.
Voluntary waivers: See this endnote for examples of comments by courts in ruling that waivers were voluntary.[43]
Involuntary waivers: A waiver is apt to be involuntary if either of the following circumstances existed:
Coercion: Officers utilized threats, promises, or other forms of coercion to obtain the waiver.[44]
“Slightest pressure” test abrogated: In the past, some courts indicated that a waiver might be involuntary if it was a result of the “slightest pressure.” This standard was abrogated by the Supreme Court.[45]
Exploiting physical or mental vulnerability: The officers were aware that the suspect had an impaired mental state (e.g., intoxication, low IQ, young age, stress) and they obtained the waiver by exploiting it. See Chapter 47 Interrogation (The surrounding circumstances, Threats and promises).
Express and Implied Waivers
: Waivers may be express or implied.
Express waivers: An express waiver results if the suspect signed a waiver; or if he said, or otherwise reasonably indicated, that he was waiving his rights.
How obtained: An express waiver will result if the suspect responded in the affirmative when, after being advised of his rights, he said he was willing to speak with the officers. Standard question: “Having these rights in mind, do you want to talk to us?” Note that while an affirmative response is technically only a waiver of the right to remain silent (because the suspect said only that he was willing to “talk” with officers), the courts have consistently ruled it also constituted a waiver of the right to counsel.[46]
Strong proof: An express waiver is “usually strong proof” of a valid waiver.[47]
Lack of enthusiasm: If the suspect said he was willing to speak with officers, it is immaterial that he did not appear to be happy or enthusiastic about it.[48]
Refusal to sign form, give written statement: It is immaterial that the suspect refused to sign a waiver form or provide a written statement.[49]
Implied waivers: Implied waivers of both the right to remain silent and the right to counsel will result if the following circumstances existed:
(1) Correctly advised: The suspect was correctly advised of his rights.
(2) Understood: The suspect expressly said he understood his rights. See “Intelligent Waivers” (Express statement of understanding), above.
(3) Submit to questioning: The suspect submitted to the officers’ questioning.
(4) No coercion: Officers neither coerced nor pressured the suspect into waiving his rights.[50]
Timely Waivers
: The suspect must have waived his rights near the start of the interview so that it reasonably appeared he had not forgotten them. In other words, the waiver must have been “reasonably contemporaneous” with the start or resumption of the interview.[51]
When timeliness becomes an issue: As a practical matter, there are only two situations in which a new warning or a reminder is apt to be required:
Delay in the start of questioning: Officers in the field will sometimes Mirandize an arrestee and maybe even obtain a waiver even though they plan to transport him to the station to be interviewed by investigators. If this happens, the investigators may be required to re-Mirandize the arrestee and obtain a second waiver before they begin to question him. (This is one reason why adult suspects should never be Mirandized unless officers intend to question them immediately.)
Interview recessed: A new warning and waiver may be required before resuming an interview that had been recessed for a significant amount of time.
Relevant circumstances: The following circumstances are relevant in determining whether a waiver and interview were reasonably contemporaneous:
Time lapse: The most important circumstance is how much time elapsed between the waiver and the start or resumption of the interview.[52] There is, however, no set time after which a fresh warning or reminder will be required.[53]
Changed circumstances: A new warning and waiver may also be required if, in addition to a lengthy time lapse, there was a significant change in circumstances between the pre- and post-break interviews. The theory here is that, if the circumstances changed much, the suspect may believe that the rights that were read to him earlier no longer applied. Thus, the courts may consider whether the waiver and interview occurred at the same location, whether the officer who obtained the waiver also took part in the subsequent interview, and whether there was a significant change in the topics under discussion.[54]
Examples: See this endnote for examples of timely waivers.[55]
Option: Miranda reminders: If the recess was not too lengthy, a new warning and waiver may not be required if officers simply reminded the suspect of his Miranda rights; e.g., “Do you remember the rights I read to you earlier?”[56]
Waivers by Minors
: In the wake of the “defund the police” movement, the governor signed into law a bill that effectively prohibits officers from interrogating minors who are in custody unless the minor has consulted “with legal counsel in person, by telephone, or by video conference.[57] Because minors cannot waive this requirement, and because attorneys will obviously instruct them not to talk to officers, the apparent purpose of this statute was to prevent officers from questioning all minors—regardless of the seriousness of the crime or the minor’s age, maturity, experience, and extensive criminal record.[58] (But also see “Consequences of violation” (No suppression), below.)
“Custodial interrogation” defined: By adopting the term “custodial interrogation,” the Legislature apparently intended to import the definition of this term as interpreted in the Miranda cases. See Chapter 42 Miranda: When Compulsory.
Detained suspects: It appears that consultation with an attorney is not required if the minor was merely detained, unless the detention was conducted in a manner that was consistent with an arrest. See Chapter 8 Investigative Detentions and Chapter 42 Miranda: When Compulsory.
Exception: Exigent circumstances: Consultation with an attorney is not required if (1) officers “reasonably believed that the minor’s information was necessary to protect life or property from an imminent threat,” and (2) the officer’s questions were “reasonably necessary to obtain that information.”[59]
Consequences of violation
No suppression: If officers interrogate a minor in custody who has not consulted with an attorney, the law does not require suppression of any subsequent statements. Furthermore, suppression would be prohibited pursuant to California’s Proposition 8. See Appendix B Citation Guide (Proposition 8).
Evidence Code section 352: Instead of requiring suppression, the law requires that trial courts apply Evidence Code section 352 and determine whether, as the result of the violation, the probative value of the minor’s statement was “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” But because California courts were required to do this even before section 625.6 was enacted, the practical significance of this statute is unknown.
Pre-Waiver Communications
: Before seeking a waiver, officers will usually have some conversation with the suspect. This does not violate Miranda if (1) the conversation did not constitute “interrogation” (see Chapter 42: Miranda: When Compulsory (“Interrogation”)), and (2) the conversation was not used to undermine the Miranda protections.
Permissible pre-waiver communications
Small talk: A waiver is not required if the pre-waiver conversation was relatively brief and consisted of small talk that was intended merely to soften the atmosphere. As the Ninth Circuit observed, “There is nothing inherently wrong with efforts to create a favorable climate for confession.”[60] Also see Chapter 42 Miranda: When Compulsory (“Interrogation,” Other relevant circumstances, Casual conversation).
Confront with evidence: See Chapter 42 Miranda: When Compulsory (“Interrogation,” The tone of the interview, Confront with evidence).
Impermissible pre-waiver communications
Pressure to waive: See “Voluntary Waivers,” above.
Interrogation: Any pre-waiver communication with a suspect in custody is prohibited if it constituted “interrogation”; i.e., it was reasonably likely to elicit an incriminating response. See Chapter 42 Miranda: When Compulsory (“Interrogation”).
Trivializing the Miranda warnings: A court might invalidate a waiver if officers obtained it after trivializing the Miranda rights by, for example, “playing down” their significance, or “minimizing their legal significance.”[61]
The “two-step”
Defined: The two-step was a tactic in which officers would begin by interrogating a suspect in custody without obtaining a Miranda waiver. Then, if the suspect confesses or makes a damaging admission, officers will seek a waiver and, if he waives, try to get him to repeat the statement.[62] The two-step works on the theory that the suspect will usually waive his rights and repeat his incriminating statement because he will think (erroneously) that his first statement could be used against him and, thus, he had nothing to lose by repeating it.
When illegal: A statement will be suppressed if it was obtained as the result of a deliberate or tactical “two step” procedure.[63]
Burden of proof: The prosecution must prove that the two-step violation was not deliberate.[64]
Indications of deliberate or tactical violation
Intensive pre-waiver conversation: The pre-waiver interview consisted of extensive questioning pertaining to the crime under investigation.[65]
Interrogation tactics: During the pre-waiver interview, the officers utilized interrogation tactics that were designed to produce an admission; e.g., “good cop/bad cop.”
Overlapping content of the two interrogations: During the post-waiver interview, the officer referred to the suspect’s pre-waiver admission or otherwise reminded him that he had already “let the cat out of the bag.”[66]
Time lapse: There was an insignificant time lapse between the pre- and post-waiver interviews and, thus, the pre- and post-waiver interviews were virtually continuous.[67]
Same officers: The pre- and post-waiver interviews were conducted by the same officers.
“Softening up”
Defined: “Softening up” is a tactic whereby officers, who have reason to believe that a suspect will not waive his rights, engage him in a lengthy pre-waiver conversation for the purpose of causing him to believe it would be advantageous to talk; e.g., officers disparaged the victim to make it appear they were on the suspect’s “side.”[68]
Legality of softening up: It is unclear whether softening up is illegal. See this endnote.[69]
Notes
[1] QUOTE FROM: Bickel v.
City of Piedmont (1997) 16 C4 1040, 1048; P v.
$241,600 (1998) 67 CA4 1100, 1109.
[2] QUOTE FROM:
Colorado v. Spring (1987) 479 US 564, 572. NOTE:
"Admissions of guilt resulting from valid Miranda waivers
are more than merely desirable; they are essential to society's
compelling interest in finding, convicting, and punishing those
who violate the law." McNeil v. Wisconsin (1991) 501 US
171, 181.
[3] USSC: Colorado v.
Connelly (1986) 479 US 157, 168 ["the State need prove
waiver only by a preponderance of the evidence"]. CAL:
P v. Wash (1993) 6 C4 215, 236 ["the voluntariness
of defendant's waiver and confession must be established by a
preponderance of the evidence"].
[4] USSC: Fare v.
Michael C. (1979) 442 US 707, 725, 728;
North Carolina v. Butler (1979) 441 US 369,
374-75; Moran v. Burbine (1986) 475 US 412, 421.
CAL: P v. Clark (1993) 5 C4 950, 986;
P v. Hector (2000) 83 CA4 228, 235.
[5] USSC: Moran v.
Burbine (1986) 475 US 412, 421-22 ["the waiver must have
been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it"]. OTHER: Garner v. Mitchell (6C 2009) 557 F3
257, 261 ["The relevant question is not whether the criminal
suspect knew and understood every possible consequence of a waiver
of the Fifth Amendment privilege, but rather whether the suspect
knew that he could choose not to talk to law enforcement officers,
to talk only with counsel present, or to discontinue talking at
any time."].
[6] USSC: Miranda v.
Arizona (1966) 384 US 436, 467-68. OTHER:
US v. Diaz-Rosado (1C 2017) 857 F3 116, 123 ["And though
the Fifth Amendment confers the 'right to remain silent, that
right simply means the right not to be compelled by the government
into offering evidence against oneself."].
[7] USSC: Miranda v.
Arizona (1966) 384 US 436, 472; California
v. Prysock (1981) 453 US 355, 361 ["He was told of
his right to have a lawyer present prior to and during
interrogation, and his right to have a lawyer appointed at no cost
if he could not afford one."]; Duckworth v.
Eagan (1989) 492 US 195, 204 [Miranda requires "that
the suspect be informed that he has the right to an attorney
before and during questioning, and that an attorney would be
appointed for him if he could not afford one."]. CAL:
P v. Smith (2007) 40 C4 483, 501 ["a suspect may not
be subjected to custodial interrogation unless he or she knowingly
and intelligently has waived the right to remain silent, to the
presence of an attorney, and to appointed counsel in the event the
suspect is indigent"]. ALSO SEE: P v.
Acuna (1988) 204 CA3 602, 607 [the Miranda right to
counsel "is not an independent right, but rather a prophylactic
rule derived from Fifth Amendment principles and not from the
Sixth Amendment right to counsel which attaches only upon the
filing of formal criminal charges"]. NOTE: The suspect need
not be informed of the right to have an attorney present during
questioning if he was told he could invoke his right to speak with
an attorney at any time during the interview. See Florida
v. Powell (2010) 559 US 50, 54;
Balbuena v. Sullivan (9C 2020) 970 F3 1176, 1188 [it was
sufficient to notify the suspect "that he had the right to an
attorney prior to questioning and was also advised that the had
the right to an attorney."].
[8] USSC: Miranda v.
Arizona (1966) 384 US 436, 469.
[9] USSC: Berghuis v.
Thompkins (2010) 560 US 370, 380 ["can be used"];
Michigan v. Mosley (1975) 423 US 96, 100,
fn.6 ["may be used"]; Colorado v.
Spring (1987) 479 US 564, 577 ["may be used"];
Florida v. Powell (2010) 559 US 50, 59 ["can be used"];
Dickerson v. US (2000) 530 US 428, 435 ["can be used"];
Duckworth v. Eagan (1989) 492 US 195, 201-202
["can be used"]; Berkemer v. McCarty (1984)
468 US 420, 428 ["may be used"]; Oregon v.
Elstad (1985) 470 US 298, 315, fn.4 ["could be used"].
CAL: P v. Valdivia (1986) 180 CA3 657,
664 ["In the latter part of the Miranda opinion the Court
employed the overstatement 'can and will be used.' But at an
earlier point the Court described the warning as being that what
is said 'may be used,' and this alternative has been consistently
approved by the lower courts. The courts have also upheld other
formulations, including use of 'can' alone, of 'might,' and of
'could.'"]; P v. Johnson (2010) 183 CA4 253,
292 ["could be used"].
[10] CAL: P v.
Castille (2005) 129 CA4 863, 886.
[11] USSC: Berghuis v.
Thompkins (2010) 560 US 370, 384 ["you have the right to
decide at any time before or during questioning to use your right
to remain silent and your right to talk with a lawyer"];
Florida v. Powell (2010) 559 US 50, 54 [you
have "the right to use any of his rights at any time he wanted
during the interview"]. CAL: P v.
Whitson (1998) 17 C4 229, 250; P v.
Lopez (2005) 129 CA4 1508, 1526 ["A person who initially
waives his or her Miranda rights retains the right to cut
off further police interrogation."]; P v.
Kelly (1990) 51 C3 931, 949 [OK to tell suspect that he
could "stop talking anytime you want to and you don't have to
answer any question"]; P v. Clark (1992) 3 C4 41,
120-21 ["The detectives repeatedly made clear to him that he could
stop the interview at any time by merely saying he wanted an
attorney," edited.].
[12] USSC: Colorado v.
Spring (1987) 479 US 564, 576, fn.8 ["the Court has found
affirmative misrepresentations by the police sufficient to
invalidate a suspect's waiver of the Fifth Amendment privilege"].
CAL: P v. Bradford (2008) 169 CA4 843,
851 [confession inadmissible because the officer forgot to inform
defendant that he had a right to remain silent]; P v.
Russo 1983) 148 CA3 1172 [statement inadmissible because
the officer told the suspect, "If you didn't do this, you don't
need a lawyer"]. 9th CIR: Doody v.
Ryan (9C 2011) 649 F3 986, 1005 [statement inadmissible
because the officers told a minor that he had a right to counsel
"if" he was "involved in a crime"].
[13] USSC: Michigan v.
Tucker (1974) 417 US 433, 439 ["virtually every schoolboy
is familiar with the [Miranda] concept, if not the language
of the [Miranda warning]"]. OTHER: Anderson
v. Terhune (9C 2008) 516 F3 781, 783 ["We are
steeped in a culture that knows a person in custody has the right
to remain silent. Miranda is practically a household
word."].
[14] USSC: Miranda v.
Arizona (1966) 384 US 436, 471-72 ["No amount of
circumstantial evidence that the person may have been aware of
this right will suffice to stand in its stead."]. CAL:
P v. Bennett (1976) 58 CA3 230, 239 ["The
prosecution was required to prove that appellant was
in fact aware of his rights"]; P v.
Nitschmann (1995) 35 CA4 677, 683 ["those who know the
Miranda rights, including 'con-wise' arrestees, such as
appellant, are entitled to the admonition"].
[15] USSC: California v.
Prysock (1981) 453 US 355, 359 ["This Court has never
indicated that the 'rigidity' of Miranda extends to the
precise formulation of the warnings given a criminal defendant."];
Duckworth v. Eagan (1989) 492 US 195, 202-3
["We have never insisted that Miranda warnings be given in
the exact form described in that decision."]. CAL:
P v. Suarez (2020) 10 C5 116, 159 ["The advisement form in
this case touches all of the bases required by Miranda."];
P v. Kelly (1990) 51 C3 931, 948 ["[Miranda
warnings] need not be presented in any precise formulation or
talismanic incantation."]; P v. Hensley (2014) 59 C4 788,
809 [no Miranda violation when, instead of asking "Having
these rights in might do you want to talk to us now?" the officer
said "I want to talk to you about what you've been doing over the
past couple of days. Can I talk to you about that?" and defendant
said "Yeah"]; P v. Samayoa (1997) 15 C4 795, 831
[failure to add the words "in court" after informing the suspect
that anything he said may be used against him did not invalidate
the waiver]. OTHER: US v. Clayton (6C 2019) 937 F3
630, 638 ["Indeed, there is no 'talismanic incantation' officers
must follow. Rather, what officers must do is warn a suspect in a
manner that, to invoke a baseball analogy, 'touches all of the
bases' reasonably to convey to a suspect his rights under
Miranda."].
[16] QUOTE FROM: Duckworth
v. Eagan (1989) 492 US 195, 203. CAL:
P v. Nitschmann (1995) 35 CA4 677, 682 ["A reviewing court
need not examine the Miranda warnings as if it were
construing a will or defining the terms of an easement."];
P v. Wash (1993) 6 C4 215, 236-37 ["The essential
inquiry is simply whether the warnings reasonably convey to a
suspect his rights as required by Miranda."]; P v.
Samayoa (1997) 15 C4 795, 830 [the test is "whether the
warnings reasonably would convey to a suspect his or her rights as
required by Miranda"]. 9th CIR:
US v. Loucious (9C 2017) 847 F3 1146. OTHER:
US v. Clayton (6C 2019) 937 F3 630, 637 ["While the officer
in question would have been better served to read the entire
Miranda instruction, we do not require any specific
formulation of those rights. What we require is a warning that
reasonably conveys the rights at issue."].
[17] CAL:
P v. Miranda-Guerrero (2022) 14 C5 1, 17 ["It is not clear
why the officers, who had access to a printed card with properly
translated Miranda advisements, chose to advise
Miranda-Guerrero at the first interview with a Spanish translation
developed on the fly."]; P v. Prysock (1982) 127 CA3
972, 985 ["If officers begin to vary from the standard language,
their burden of establishing that defendants have been adequately
advised before waiving their rights will increase
substantially."]; Florida v. Powell (2010)
559 US 50, 64 [quote from DOJ amicus brief: "Law enforcement
agencies have little reason to assume the litigation risk of
experimenting with novel Miranda formulations."].
9th CIR: US v. Loucious (9C 2017) 847 F3 1146, 1151
["the police can always be certain that Miranda has been
satisfied if they simply read his rights from a prepared card."].
ALSO SEE: US v. Warren (3C 2011) 642
F3 182, 187 [although the warning was sufficient, it was
"disconcerting" that officer did not use a Miranda card,
especially "considering the resources that have been expended to
consider the [suppression] claim"].
[18] USSC: Oregon v.
Elstad (1985) 470 US 298, 314-15 ["[The officer] testified
that he read the Miranda warnings aloud from a printed card
and recorded Elstad's responses."].
[19] USSC: Moran v.
Burbine (1986) 475 US 412, 421 ["the waiver must have been
made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it"];
Brady v. US (1970) 397 US 749, 748 [suspect
must have "sufficient awareness of the relevant circumstances and
likely consequences"]. CAL: P v. Simpson (1998) 65
CA4 854, 859, fn.1 ["While we also usually indicate waivers must
be 'intelligent,' that term can be confusing; it conjures up the
idea that the decision to waive Miranda rights must be
wise. That, of course, is not the idea. Essentially, 'intelligent'
connotes knowing and aware."]; P v. Clark (1993) 5
C4 950, 985 ["All that is required is that the defendant
comprehend all of the information the police are required to
convey."]. NOTE: The courts have sometimes lumped "knowing"
and "intelligent" together, treating them as interchangeable or
redundant. As noted, however, they are separate requirements.
[20] CAL: P v.
Cruz (2008) 44 C4 636, 668-69 [suspect's response "more or
less" was sufficient in light of totality of circumstances];
P v. Memro (1995) 11 C4 786, 834 ["Defendant said on
both occasions that he understood the consequences of speaking,
and elected to proceed"]. 9th CIR: US v.
Labrada-Bustamante (9C 2005) 428 F3 1252, 1259 [courts
rejects argument that suspect who told officers he understood his
rights did not really understand them because he was unfamiliar
with the criminal justice system].
[21] CAL: P v. Tremayne (1971)
20 CA3 1006, 1019 [defendant told the officers that "If I had been
smart, I would have taken my dad's advice and not said anything
from the beginning"; "this remark," said the court, "is proof
defendant knew he could remain silent"];
P v. Winkler (1986) 178 CA3 750, 754;
In re Eduardo G. (1980) 108 CA3 745, 757; P v.
Nitschmann (1995) 35 CA4 677, 682.
[22] USSC: Fare v.
Michael C. (1979) 442 US 707, 725-26; Oregon
v. Elstad (1985) 470 US 298, 315, fn.4 ["A recent
high school graduate, Elstad was fully capable of understanding
this careful administering of Miranda warnings."].
CAL: P v. Riva (2003) 112 CA4 981, 989
["the evidence shows Riva was 18 years of age at the time of his
arrest. He had a job, a driver license and attended college. He
had previously been arrested as a juvenile."]; In re
Brian W. (1981) 125 CA3 590, 602 ["He had an I.Q. of 81 and
the mental age of 11 or 12 but this is only a factor to be
considered in determining whether he lacked the ability to
understand his rights."]; In re Charles P. (1982)
134 CA3 768, 771-72 ["A presumption that all minors are incapable
of a knowing, intelligent waiver of constitutional rights is a
form of stereotyping that does not comport with the realities of
every day living in our urban society."]; In re
Eduardo G. (1980) 108 CA3 745, 756 ["there is no
presumption that a minor is incapable of a knowing, intelligent
waiver of his rights"]; P v. Samayoa (1997) 15 C4
795, 831; P v. Ventura (1985) 174 CA3 784, 790;
In re John S. (1988) 199 CA3 441, 445; In re
Frank C. (1982) 138 CA3 708, 712; P v.
Lewis (2001) 26 C4 334, 383-84; P v.
Maestas (1987) 194 CA3 1499, 1508.
[23] CAL: P v.
Nelson (2012) 53 C4 367, 375 [two prior arrests]; P
v. Mickle (1991) 54 C3 140, 170 [suspect "was
familiar with the criminal justice system and could reasonably be
expected to know that any statements made at this time might be
used against him in the investigation and any subsequent trial"];
P v. Riva (2003) 112 CA4 981, 994 [defendant
was a college student and had had "previous experience with law
enforcement having been arrested as a juvenile"]; P v.
Lewis (2001) 26 C4 334, 386 [minor "had prior experience
with the police"]; In re Charles P. (1982) 134 CA3
768, 772 ["He was on probation and had been advised of his
Miranda rights on a prior occasion"]; P v.
Hector (2000) 83 CA4 228, 236 ["substantial prior
experience with the criminal justice system"]; In re
Jessie L. (1982) 131 CA3 202, 216 ["prior arrest for
arson"].
[24] CAL: In re
Bonnie H. (1997) 56 CA4 563, 578 [defendant previously
"asserted her right to counsel when [the officers] read her
Miranda rights"]; In re Frank C. (1982) 138
CA3 708, 712 [defendant "initially asserted the very rights he now
on appeal claims he failed to understand"]; P v.
Hill (1992) 3 C4 959, 981. 9th CIR: US
v. Andaverde (9C 1995) 64 F3 1305, 1314 ["the
fact that Andaverde later in the interview expressly invoked his
right to silence demonstrates that he was conscious of his right
to remain silent"]; US v. Lopez-Diaz (9C 1980) 630 F2 661,
664 [suspect's limited invocation indicates he knew he could
invoke at any time].
[25] CAL: P v.
Cruz (2008) 44 C4 636, 668 [after reading the
Miranda rights, the detective described them "in less
'formal' terms so as to ensure that defendant could better
understand"]; P v. Farnam (2002) 28 C4 107, 181;
P v. Turnage (1975) 45 CA3 201, 211 [the law
"permits clarifying questions with regard to the individual's
comprehension of his constitutional rights or the waiver of
them"]; P v. Wash (1993) 6 C4 215, 239 ["where a
defendant expresses ambiguous remarks falling short of an
invocation of his Miranda rights, the officers may continue
talking for the purpose of obtaining clarification of his
intentions"]. OTHER: Tolliver v.
Sheets (6C 2010) 594 F3 900, 921 ["The difference between
permissible follow-up questions and impermissible interrogation
clearly turns on whether the police are seeking clarification of
something that the suspect has just said, or whether instead the
police are seeking to expand the interview."].
[26] EXAMPLES: The following are
examples of rulings in which the courts determined that the
suspect understood his rights despite not being fluent in English:
• "There was no indication by any of the officers that Mr.
Rodriguez had difficulty understanding English nor that the
officers had trouble understanding his English."
US v. Rodriguez-Preciado (9C 2005) 399 F3 1118, 1127-28.
• The officer testified that after he explained his rights in
English, "appellant stated that he understood his rights. [The
officer] testified that "I asked him if he understood [his
rights], if he understood all of the wording, and he stated that
he did. He didn't have any questions. I also made sure that his
mother understood what his rights were. And I explained to both of
them and asked them if they understood. And they stated that they
did." At no time did appellant indicate that he did not understand
his rights. US v. Bernard S. (9C 1986) 795 F2 749, 752.
• "The record shows that appellant was orally read his rights
in both Spanish and English, that he appeared to understand them,
that he read and signed cards explaining his rights in both
languages, and that he continued to converse with [the officer] in
both languages thereafter." US v. Gonzales (9C 1984) 749 F2
1329, 1336.
• "Finally, his contention that he did not understand the
dialect in which the warnings were read to him is seriously
weakened by the fact that he continued to converse in Spanish with
the officer who had read him the warnings, and it was in the
course of that conversation that the inculpatory statements were
made." US v. Martinez (9C 1978) 588 F2 1227, 1235.
[27] CAL: P v. Clark (1993) 5 C4
950, 988 ["this court has repeatedly rejected claims of incapacity
or incompetence to waive Miranda rights premised upon
voluntary intoxication of ingestion of drugs, where, as in this
case, there is nothing in the record to indicate that the
defendant did not understand his rights and the questions posed to
him"]; P v. Frye (1998) 18 C4 894, 988 ["To have
prevailed, defendant would have had to establish his consumption
of alcohol so impaired his reasoning that he was incapable of
freely and rationally choosing to waive his rights and speak with
the officers."]. OTHER: US v.
Burson (10C 2008) 531 F3 1254, 1258 ["these cases reveal a
defendant must be impaired to a substantial degree to overcome his
ability to knowingly and intelligently waive his [rights]"];
US v. Littledale (7C 2011) 652 F3 698, 701, fn.1 [although
the suspect had Asperger's syndrome, "nothing in the record
indicates that [his] mental health condition was objectively
apparent to a reasonable officer," edited].
[28] EXAMPLES: The following are
examples of rulings in which the courts determined that the
suspect understood his rights despite the consumption of alcohol
and/or drugs:
• The suspect "answered the officers' questions coherently
and intelligibly. He never told officers that he was confused,
tired, or intoxicated." US v. Daniels (8C 2014) 775 F3
1001, 1005.
• The suspect, whose blood-alcohol content was between .14%
and .22% two hours after the interview was terminated, "made
meaningful responses to questions asked" and "nothing indicated
that [he] was anything but rational." P v.
Conrad (1974) 31 CA3 308, 321.
• The suspect "had been drinking and had a history of
emotional instability" but "was able to respond to the questions
asked of her coherently." P v. Palmer (1978) 80 CA3
239, 257.
• Although the suspect appeared to be under the influence of
"some drug," his answers were "logically consistent."
P v. Markham (1989) 49 C3 63, 66.
• The suspect was under the influence of PCP but his answers
were "rational and appropriate to those questions." P v.
Loftis (1984) 157 CA3 229, 232.
• The suspect had ingested a small quantity of alcohol and
drugs but "acted sober and appeared to understand the
proceedings."
P v. Avalos (1984) 37 C3 216, 231.
• The suspect's blood-alcohol content was approximately .21%,
and the arresting officer testified his condition was such that he
could not safely drive a car, but "he otherwise knew what he was
doing." P v. Moore (1971) 20 CA3 444, 450.
• Although the suspect had a blood-alcohol content of .229%,
this fact "neither proves nor disproves defendant's capacity to
understand and rationalize, since there is no established
statutory or decisional standard correlating blood alcohol content
with cerebral impairment of which this court can take judicial
notice. P v. Stroud (1969) 273 CA2 670, 679.
• Although the suspect had ingested methamphetamine and
cocaine earlier that day, and had not slept "for days," his
answers were "logical and rational." US v.
Burson (10C 2008) 531 F3 1254, 1260.
• Although there was testimony that the suspect was "loaded
on alcohol and drugs," he admitted that he understood his
Miranda rights. P v. Ventura (1985) 174 CA3
784, 791.
• When questioned, the suspect had been admitted to a
hospital, suffering from acute psychosis and was under the
influence of drugs. "While [the officer] acknowledged defendant
was sometimes irrational during the interrogation, he also
testified that defendant was responsive to his questioning"
P v. Panah (2005) 35 C4 395, 472.
• The suspect claimed he was high on ecstasy and brandy, but
there was a 36-hour time lapse, plus the officers testified he
"talked normally, denied knowing about the shooting, and showed no
signs of intoxication or drug impairment." US v.
Phillips (8C 2007) 506 F3 685, 686-87.
• A hospitalized defendant's waiver was intelligent although
he was in pain and was "groggy" because he had been given Demerol.
The court noted he was "relatively coherent" and "spoke freely"
with the officers. US v. Martin (9C 1985) 781
F2 671, 674.
• Hospitalized suspect had been given Demerol but he
"answered those [questions] that he could and would explain his
answers quite often. He was responsive to the questions asked of
him."
P v. McFadden (1970) 4 CA3 672, 686.
• "Although the defendant was seriously injured in the
collision, there was no direct evidence that during any of
his interviews with the police, his judgment was clouded or
otherwise impaired by pain, medications, or surgical procedures.
The police officers testified, without contradiction, that
defendant's answers were clear and responsive."
• Not an "intelligent" waiver: The 13-year old
suspect had consumed nine cans of beer on the night of his arrest,
and during the interrogation "it became clear that [he] was highly
intoxicated, at times loud and boisterous and alternating between
responsiveness and silence. He was so ill that at times he had
'dry heaves' and appeared to be vomiting. Appellant's condition
was such that in sitting down he nearly fell out of his chair."
In re Peter G. (1980) 110 CA3 576, 584.
[29] EXAMPLES: The following are
examples of rulings in which the courts determined that the
suspect understood his rights despite heroin withdrawal:
• Although the defendant "began to display physical signs of
withdrawal," experiencing "chills, shaking, and trembling," his
waiver was intelligent because he "remained coherent and
responsive, was aware of what was going on, and told the agents
that he was able to continue with questioning."
US v. Kelly (9C 1992) 953 F2 562, 565.
• The suspect was going through heroin withdrawal but an
officer testified that "[Rodriguez] was coherent, sitting up
facing me. He spoke and interacted. He seemed normal." The court
added, "our case law supports the finding that individuals going
through heroin withdrawal can voluntarily and intelligently waive
their
Miranda rights. US v. Rodriguez-Rodriguez (9C 2004)
364 F3 1142, 1146.
• The suspect was shaking as a result of narcotic withdrawal
but he "spoke coherently and the officer had no trouble
understanding him." P v. Williams (1970) 8 CA3 44, 50-51.
• "Although Defendant's heroin withdrawal caused lethargy and
physical discomfort, such symptoms alone are insufficient to
establish involuntariness." US v. Colman (9C
2000) 208 F3 786, 791.
[30] EXAMPLES: The following are
examples of rulings in which the courts determined that the
suspect understood his rights despite mental illness:
• Suspect who was diagnosed as a paranoid schizophrenic
"participated in his conversations with detectives, and indeed was
keen enough to change his story when [a detective] revealed that
the fire originated from inside the car."
P v. Lewis (2001) 26 C4 334, 384.
• "A schizophrenic condition does not render a defendant
incapable of effectively waiving his rights. Nor does the presence
of evidence of subnormality require the automatic exclusion of a
confession." P v. Watson (1977) 75 CA3 384, 397.
• A suspect who claimed to be mentally ill "coherently
responded to all questioning and acknowledged his understanding of
his rights." P v. Mitchell (1982) 132 CA3 389, 405-6.
• A suspect who had just attempted suicide "was conscious,
alert, and oriented" and "very much aware and awake, and knew what
was going on." Reinert v. Larkins (3C 2004) 379 F3 76, 88.
• COMPARE: Rodriguez v. McDonald (9C 2017) 872
F3 908, 923 [defendant "was not only young [14 years old]; he also
had Attention Deficit Hyperactivity Disorder and a 'borderline'
I.S. of seventy-seven. An I.Q. between 70 and 75 or lower is
typically considered the cutoff I.Q. score for the intellectual
function prong of the mental retardation definition"].
[31] EXAMPLES: The following are
examples of rulings in which the courts determined that the
suspect understood his rights despite a learning disability:
• A suspect whose IQ was 47 testified he "knew what an
attorney was, that he could get one, that he did not have to speak
to police unless he wanted to, and that they could not force him
to talk." In re Norman H. (1976) 64 CA3 997, 1002.
• A suspect who "possessed relatively low intelligence" was
"sufficiently intelligent to pass a driver's test, and to attempt
to deceive officers by [lying to them]."
P v. Whitson (1998) 17 C4 229, 249.
• A suspect with a "below average" IQ and "several mental
disorders" indicated he understood his rights; plus, he was
"street smart." US v. Robinson (4C 2005) 404 F3 850, 861.
• Although defendant's IQ was in the middle 70s and she had
no prior involvement with the criminal justice system, the
arresting officer and the government's expert witness testified
that she "understood what was happening" when she waived her
rights.
US v. Rosario-Diaz (1C 2000) 202 F3 54, 69.
• Although the suspect had an IQ of between 79 and 85 ("dull
normal" category), "he nevertheless completed the eighth grade in
school. He is able to read and write and was able to work and
function in society" Poyner v. Murray (4C 1992) 964 F2
1404, 1413.
• "He had an I.Q. of 81 and the mental age of 11 or 12 but
this is only a factor to be considered in determining whether he
lacked the ability to understand his rights."
In re Brian W. (1981) 125 CA3 590, 602.
• A waiver by a 25-year old suspect with "borderline
intellectual functioning" and who "has an impaired ability to
understand complex or abstract concepts, to apply logic, and to
use sound judgment" was knowing and intelligent because, among
other things, he "knew his rights" and the officers "repeatedly
made clear that he need not speak with them" and he "was
responsive and followed the thread of the questioning—even
crafting lies when it appeared to help him"].
US v. Rang (1C 2019) 919 F3 113, 118.
[32] USSC: Moran v.
Burbine (1986) 475 US 412, 422 ["we have never read the
Constitution to require that the police supply a suspect with a
flow of information to help him calibrate his self-interest in
deciding whether to speak or stand by his rights"];
Colorado v. Spring (1987) 479 US 564, 577
["Here, the additional information could affect only the wisdom of
a Miranda waiver, not its essentially voluntary and knowing
nature."]. OTHER: Collins v. Gaetz (7C
2010) 612 F3 574, 590 ["we do not require that a criminal
defendant understand every consequence of waiving his rights or
make the decision that is in his best interest"].
[33] USSC: Colorado v.
Spring (1987) 479 US 564, 577 ["the failure of the law
enforcement officials to inform Spring of the subject matter of
the interrogation could not affect Spring's decision to waive his
Fifth Amendment privilege in a constitutionally significant
manner"]. P v. Molano (2018) 7 C5 620, 649 ["merely
withholding certain information from a defendant does not
invalidate a Miranda waiver"].
OTHER: US v. Brenton-Farley
(11C 2010) 607 F3 1294 [affirmative misrepresentation as to
subject of interview did not mean the waiver was not made
knowingly].
[34] CAL: P v.
Tate (2010) 49 C4 635, 684 [it did not matter that the
officers did not expressly tell the defendant that they were
investigating a homicide]; P v. Hill (1992) 3 C4
959, 982 ["a suspect need not be informed of the possible charges
against him"]; P v. Mitchell (1982) 132 CA3 389, 405
[court rejects argument that a waiver was invalid because the
defendant "was not aware the pending charge of attempted murder
would be raised to murder if his victim actually died"];
P v. Boyette (2002) 29 C4 381, 411 ["A criminal
defendant's Miranda waiver is voluntary even if police fail
to inform the defendant of all the crimes about which he might be
questioned."].
[35] CAL: P v. Rountree (2013)
56 C4 823, 848 [court rejects argument that the defendant should
have been informed that this was a death penalty case];
P v. Hill (1992) 3 C4 959, 982 ["there is no basis
for concluding that he must be advised of the possible
punishment"]; P v. Clark (1993) 5 C4 950, 987, fn.11
["Defendant has no right to be advised about the penal
consequences of the charges"]; P v. Jackson (1996)
13 C4 1164, 1207, fn.4; P v. Wash (1993) 6 C4 215,
239 [court rejects argument that he should have been informed
"that his admissions could be relevant to the state's decision to
seek the death penalty"].
[36] QUOTE FROM:
P v. Suff (2014) 58 C4 1013, 1070.
[37] USSC: Moran v.
Burbine (1986) 475 US 412, 422.
[38] USSC:
Illinois v. Perkins (1990) 496 US 292, 297 [an otherwise
voluntary waiver will not be invalidated merely because officers
utilized "ploys to mislead" or "lull him into a false sense of
security," citations omitted].
[39] CAL: P v. Tate (2010) 49 C4
635, 683.
[40] CAL: P v. Molano (2018) 7
C5 620, 649 [Miranda violation did not result from officers
misleading the suspect into believing their main purpose was to
discuss sex registration when the real purpose was to question him
about a murder]. OTHER: US v. Farley (11C 2010) 607
F3 1294.
[41] USSC: Colorado v.
Spring (1987) 479 US 564, 572 [the suspect's choice to
waive must have been "unfettered"]; Colorado v.
Connelly (1986) 479 US 157, 169 ["a waiver must at a
minimum be 'voluntary'"].
[42] USSC: Colorado v.
Connelly (1986) 479 US 157, 169-70 ["There is obviously no
reason to require more in the way of a 'voluntariness' inquiry in
the Miranda waver context than in the Fourteenth Amendment
confession context."]. CAL: P v.
Guerra (2006) 37 C4 1067, 1093 [the voluntariness of a
Miranda waiver and the voluntariness of a statement are
based on "the same inquiry"].
[43] EXAMPLES: The following are
examples of comments by courts in ruling that waivers were
voluntary:
• In a subsequent interview, the defendant "agreed that he
had always talked to [the investigating officer] voluntarily, and
that the [officer] had 'never threatened him, or promised him
anything." P v. Krebs (2019) 8 C5 265, 303.
• Defendant acknowledged that he confessed "because he felt
'what he did was wrong" and because "the police had recovered [the
victim's] blood from his vehicle's seat."
P v. Krebs (2019) 8 C5 265, 303.
• The detective "neither expressly nor impliedly promised
defendant a deal should he confess." P v. Young (2019) 7 C5
905, 925.
• "The record is devoid of any suggestion that police
resorted to physical or psychological pressure to elicit the
statements."
Moran v. Burbine (1986) 475 US 412, 421.
• "There is no doubt that Spring's decision to waive his
Fifth Amendment privilege was voluntary. He alleges no coercion of
a confession by means of physical violence or other deliberate
means calculated to break his will." Colorado v.
Spring (1987) 479 US 564, 573-74.
• "There is no evidence that Barrett was threatened, tricked,
or cajoled into his waiver." Connecticut v.
Barrett (1987) 479 US 523, 527.
• "There is no suggestion the detectives resorted to physical
or psychological pressure to coerce defendant to talk to them."
P v. Parker (2017) 2 C5 1184, 1216.
• "No coercive tactics were employed in order to obtain
defendant's waiver of his rights."
P v. Sauceda-Contreras (2012) 55 C4 203, 220.
• "The record is devoid of any suggestion that the police
resorted to physical or psychological pressure to elicit
statements from defendant." P v. Whitson (1998) 17 C4 229,
248-49.
• "The officers made no threats or promises of any kind, and
there is no indication that the questioning was oppressive in any
way." US v. Doe (9C 1998) 155 F3 1070, 1075.
• "The officers made no threats or promises of any kind, and
there is no indication that the questioning was oppressive in any
way." US v. Doe (9C 1998) 155 F3 1070, 1075. Also see
US v. Rodriguez-Preciado (9C 2005) 399 F3 1118, 1128.
[44] USSC:
Berghuis v. Thompkins (2010) 560 US 370, 382 [a waiver
"must be voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception"]; Colorado v. Connelly (1986) 479
US 157, 170 ["The sole concern of the Fifth Amendment, on which
Miranda was based, is governmental coercion."]. CAL:
In re Norman H. (1976) 64 CA3 997, 1003 ["One of the evils
sought to be eliminated by the Miranda rule is obtaining of
information from a defendant who truly does not want to talk, but
whose silence or resistance to speak is overcome by coercion or
persuasion."]. COMPARE: Lynumn v. Illinois (1963)
372 US 528 [officers told the suspect that she would lose state
financial aid for her child if she did not cooperate];
P v. Hinds (1984 154 CA3 222, 234 [involuntary because
officers told the suspect that, unless he waived his rights they
"had to assume the worst, e.g., the death penalty."].
[45] USSC: Arizona v.
Fulminante (1991) 499 US 279, 285-86. CAL:
P v. Clark (1993) 5 C4 950, 986, fn.10.
[46] UCCS: North Carolina
v. Butler (1979) 441 US 369, 372-73 [Court rejects
argument that a suspect who agreed to speak with officers must
also expressly waive his right to counsel]. CAL:
P v. Mitchell (1982) 132 CA3 389, 406 ["The record
shows Mitchell understood his rights, including that of counsel,
and waived each by agreeing to answer the officer's questions."].
[47] QUOTE FROM:
North Carolina v. Butler (1979) 441 US 369, 373 ["An
express written or oral statement of waiver… is usually
strong proof of the validity of that waiver but is not inevitably
either necessary nor sufficient to establish waiver."].
[48] CAL: P v. Avalos (1984) 37
C3 216, 230 [express waiver resulted when, after being asked if he
wanted to talk, he said, "Yeah, whatever; I don't know. I guess
so. Whatever you want to talk about, you just tell me, I'll
answer"].
[49] USSC: Berghuis v.
Thompkins (2010) 560 US 370, 375 ["Thompkins declined to
sign the form."]; Connecticut v.
Barrett (1987) 479 US 523, 530, fn.4 ["there may be several
strategic reasons why a defendant willing to speak to the police
would still refuse to write out his answers to questions"].
CAL: P v. Maier (1991) 226 CA3 1670, 1677-78.
9th CIR: US v. Andaverde (9C
1995) 64 F3 1305, 1315 ["The Seventh and Eighth Circuits, and a
number of other circuits, have stated that a refusal to sign a
waiver form does not show that subsequent statements are
involuntary."]. OTHER: US v. Brown (7C 2011) 664 F3
1115, 1118 ["It is immaterial that defendant did not sign a waiver
form"]; US v. Plugh (2C 2011) 648 F3 118,
123; US v. Binion (8C 2009) 570 F3 1034, 1041
["Refusing to sign a written waiver of the privilege against self
incrimination does not itself invoke that privilege"].
[50] USSC:
Berghuis v. Thompkins (2010) 560 US 370, 385 ["As a general
proposition, the law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford."];
Wyrick v. Fields (1982) 459 US 42, 47 ["By requesting a
polygraph examination, he initiated interrogation. That is, Fields
waived not only his right to be free of contact with the
authorities in the absence of an attorney, but also his right to
be free of interrogation about the crime of which he was
suspected. CAL: P v. Parker (2017) 2 C5 1184, 1216
["It is well settled that law enforcement officers are not
required to obtain an express waiver of a suspect's
Miranda rights prior to a custodial interview and that a
valid waiver of such rights may be implied from the defendant's
words and actions."]; P v. Cunningham (2015) 61 C4 609, 642
["a valid waiver of Miranda rights may, as here, be
inferred from the defendant's words and actions"];
P v. Nelson (2012) 53 C4 367, 375 ["Although he did not
expressly waive his Miranda rights, he did so implicitly by
willingly answering questions after acknowledging that he
understood those rights."]; P v. Lessie (2010) 47 C4 1152,
1169 ["While defendant did not expressly waive his
Miranda rights, he did so implicitly by willingly answering
questions after acknowledging that he understood those rights."];
P v. Hawthorne (2012) 46 C4 67, 86 ["We have recognized
that a valid waiver of Miranda rights may be express or
implied. A suspect's expressed willingness to answer questions
after acknowledging an understanding of his or her
Miranda rights has itself been held sufficient to
constitute an implied waiver of such rights."];
P v. Jones (2017) 7 CA5 787, 811 ["While Jones did not
expressly waive his Miranda rights during the interview, he
did so implicitly by voluntarily answering the detective's
questions after acknowledging that he understood those rights."].
OTHER: US v. Brown (7C 2011) 664 F3
1115, 1118 ["Even if this Court were to dismiss Brown's upward nod
as ambiguous, Brown's immediate actions constituted an implied
waiver."].
[51] USSC: Wyrick v.
Fields (1982) 459 US 42. CAL: P v.
San Nicolas (2004) 34 C4 614, 640 ["where a subsequent
interrogation is 'reasonably contemporaneous' with a prior knowing
and intelligent waiver, a readvisement of Miranda rights is
unnecessary"]; P v. Lewis (2001) 26 C4 334, 386;
P v. Mickle (1991) 54 C3 140, 170 ["readvisement is
unnecessary where the subsequent interrogation is 'reasonably
contemporaneous' with the prior knowing and intelligent waiver"];
P v. Braeseke (1979) 25 C3 691, 701-2 ["A
Miranda warning is not required before each custodial
interrogation; one warning, if adequately and reasonably
contemporaneously given, is sufficient."]; P v.
Schenk (1972) 24 CA3 233, 236 ["a repeated and continued
Miranda warning need not precede every twist and turn in
the investigatory phase of the criminal proceedings"].
[52] USSC: Berghuis v.
Thompkins (2010) 560 US 370, 386 [3 hours]. CAL:
P v. Krebs (2019) 8 C5 265, 307, fn.11 ["defendant was
reminded of his rights on April 21 and readvisement that next day
may not have been necessary"]; P v. Spencer (2018) 5 C5
642, 668]["Only five hours had passed between the time of the
waiver and the interrogation"]; P v. Hensley (2014) 59 C4
788, 815 [less than 30 minutes]; P v. Duff (2014) 58 C4
527, 555 ["Questioning here [occurred] just minutes later, in the
very same location as before"]; P v.
Pearson (2012) 53 C4 306, 317 [27 hours]; P v.
Smith (2007) 40 C4 483, 504-5 [12 hours]; P v.
Mickle (1991) 54 C3 140, 170-1 [36-hours]; P v.
Lewis (2001) 26 C4 334, 386 [5 hours]; P v.
Cooper (1970) 10 CA3 96, 107 [15-20 minutes]; P v.
Bynum (1971) 4 C3 589, 600 [30-40 minutes]; P v.
Miller (1996) 46 CA4 412, 418 [6 hours]; P v.
Meneley (1972) 29 CA3 41, 58 [15 minutes]; P v.
Thompson (1992) 7 CA4 1966, 1972 [9 hours]; P v.
Braeseke (1979) 25 C3 691, 702 [90 minutes]; P v.
Schenk (1972) 24 CA3 233, 236 [20-30 minutes];
In re Frank C. (1982) 138 CA3 708, 714 [one hour];
P v. Inman (1969) 274 CA2 704, 708 [10 hours];
P v. Booker (1977) 69 CA3 654, 665 [3 days];
P v. Long (1970) 6 CA3 741, 748; P v.
Riva (2003) 112 CA4 981, 993-94 [one hour].
9th CIR: US v. Andaverde (9C
1995) 64 F3 1305, 1312 [one day]; US v.
Rodriguez-Preciado (9C 2005) 399 F3 1118, 1128-29 [16
hours]. OTHER: US v. Boyd (8C 1999)
180 F3 967, 977 [1½ to 2 hours]; US v.
Fellers (8C 2005) 397 F3 1090, 1097, 1098 [30 minutes].
COMPARE: P v. Bennett (1976) 58 CA3
230, 237-38 [6 weeks not reasonably contemporaneous].
[53] USSC:
Berghuis v. Thompkins (2010) 560 US 370, 386 ["Police are
not required to rewarn suspects from time to time."]. CAL:
P v. Suarez (2020) 10 C5 116, 162 [in major murder case,
13-14 hour passage did not require readvisement]. 9th CIR:
US v. Andaverde (9C 1995) 64 F3 1305, 1312 ["The courts
have generally rejected a per se rule as to when a suspect must be
readvised of his rights after the passage of time or a change in
questioners."].
[54] USSC: Wyrick v.
Fields (1982) 459 US 42, 47 ["Disconnecting the polygraph
equipment effectuated no significant change in the character of
the interrogation."]. CAL:
P v. Miranda-Guerrero (2022) 14 C5 1, 19 ["We have held
that interrogations taking place as long as 40 hours after a
Miranda warning and waiver do not require readvisement when
conducted by the same officers in the same location with an
experienced defendant who "evinced no reluctance to be
interviewed."]; P v. Ramirez (2022) 13 C5 997, 1107 ["we
have held that readvisement is unnecessary where the subsequent
interrogation is reasonably contemporaneous with the prior knowing
and intelligent waiver"; relevant circumstances include "any
change in the identity of the interrogator or the location of the
interview, any official reminder of the prior advisement, the
suspect's sophistication or past experience with law enforcement,
and any indicia that he subjectively understands and waives his
rights"]; P v. Spencer (2018) 5 C5 642, 668-69] ["there was
no change in the location of the interrogation"];
P v. Smith (2007) 40 C4 483, 504 ["We have established
several factors to determine whether readvisement is necessary
prior to a subsequent interrogation held after an earlier valid
Miranda waiver: 1) the amount of time that has passed since
the initial waiver; 2) any change in the identity of the
interrogator or location of the interrogation; 3) an official
reminder of the prior advisement; 4) the suspect's sophistication
or past experience with law enforcement; and 5) further indicia
that defendant subjectively understands and waives his rights."];
P v. Pearson (2012) 53 C4 306, 317 [during
the intervening time, the defendant "not only remained in custody
but was, for much of the time, in contact with the investigating
officers"]; P v. Williams (2010) 49 C4 405, 435
[advisement was reasonably contemporaneous after 40 hour lapse
because the second interview took place in the same room, one of
the officers present had been present at the first interview, and
it was apparent that the defendant wanted to talk]; P v.
Rich (1988) 45 C3 1036, 1077 [new waiver not required
merely because the defendant was notified he had failed a
polygraph test]; P v. San Nicolas (2004) 34 C4 614,
640 ["Miranda does not require a second advisement when a
new interviewer steps into the room."]; P v.
Schenk (1972) 24 CA3 233, 236 ["a repeated and continued
Miranda warning need not precede every twist and turn in
the investigatory phase of the criminal proceedings"];
P v. Mickle (1991) 54 C3 140, 170-71 ["Indeed, the
hospital interview was conducted by the same two officers who had
interrogated defendant and placed him under arrest at the police
station."]; P v. Lewis (2001) 26 C4 334, 386 [same
room]; P v. Riva (2003) 112 CA4 981, 994
["Both interrogations were conducted by the same officer."];
P v. Quirk (1982) 129 CA3 618, 630 [new waiver was
necessary where there was a 3 day delay, and the subsequent
interview was conducted by a psychiatrist]. 9th CIR:
US v. Rodriguez-Preciado (9C 2005) 399 F3
1118, 1129 ["there were no intervening events which might have
given Rodriguez-Preciado the impression that his rights had
changed in a material way"]; Guam v.
Dela Pena (9C 1995) 72 F3 767, 769 [an arrest does not
automatically constitute a sufficient changed circumstance to
require a new waiver].
[55] EXAMPLES: The following are
examples of circumstances that were deemed to have rendered a
waiver and interview reasonably contemporaneous:
• Two hours, same officers, same location, same topics,
reminder given. Wyrick v. Fields (1982) 459 US 42, 47-48.
• Five hours, same location, different officer, same topics,
no reminder. P v. Lewis (2001) 26 C4 334, 386-87.
• Six hours, same location, same officer, same topics, no
reminder. P v. Miller (1996) 46 CA4 412, 418.
• Nine hours, same officer, different location, same topics,
no reminder. P v. Thompson (1992) 7 CA4 1966, 1972.
• Overnight, same location, different officers, different
topics, reminder given. P v. Martinez (2010) 47 C4 911,
944-50.
• Fifteen hours, same location, same officers, same topics,
reminder given. Guam v. Dela Pena (9C 1995) 72 F3
767, 770.
• Sixteen hours, same location, same officers, same topics,
reminder given. P v. Stallworth (2008) 164 CA4 1079, 1088.
• Twelve hours, same officers, same location, same topics,
reminder given. P v. Smith (2007) 40 C4 483, 504-5.
• Twenty-seven hours, same officer, same location, same
topics, reminder given. P v. Pearson (2012) 53 C4 306,
316-17.
• Thirty-six hours, same location, same officers, same
topics, reminder given. P v. Mickle (1991) 54 C3 140, 171.
[56] CAL: P v.
Pearson (2012) 53 C4 306, 317 ["Before agreeing to the
second interview, defendant was asked if he remembered his
Miranda rights, and he said he did."]; P v.
Martinez (2010) 47 C4 911, 950 ["they did remind him of the
admonition given the night before and then specifically asked him
if he remembered those rights and whether he still wanted to
talk"]; P v. Stallworth (2008) 164 CA4 1079,
1089; P v. Visciotti (1992) 2 C4 1, 55 [defendant
"was reminded of the rights he had waived earlier in the
day… [the officer] clearly implied that those rights were
still available to defendant"]; P v.
Roquemore (2005) 131 CA4 11, 25 [reminder was sufficient];
P v. McFadden (1970) 4 CA3 672, 687 [reminder after
one day lapse OK]; P v. Maier (1991) 226 CA3 1670,
1677-78 [reminder after three day lapse OK]; P v.
Brockman (1969) 2 CA3 1002, 1010 [reminder two days after
waiver OK]; P v. Mickle (1991) 54 C3 140, 170-1 ["By
asking whether he 'remembered' [the prior Miranda warnings]
and the prior conversation, the officers implied that they were
simply tying up loose ends from the earlier
Mirandized session."]. 9th CIR: US v.
Rodriguez-Preciado (9C 2005) 399 F3 1118, 1129.
OTHER: Biddy v. Diamond (5C 1975) 516
F2 118, 122 [reminder after 12 days OK].
[57] CAL: Welf. & Inst. Code§
625.6(a).
[58] NOTE: The California Legislature
apparently believes that teenagers 15 and under are incapable of
understanding their rights. Not only does this not reflect today's
reality, it is contrary to the opinions of the Court of Appeal.
See In re Charles P. (1982) 134 CA3 768, 771-72 ["A
presumption that all minors are incapable of a knowing,
intelligent waiver of constitutional rights is a form of
stereotyping that does not comport with the realities of every day
living in our urban society."]; In re Eduardo G. (1980) 108
CA3 745, 756 ["there is no presumption that a minor is incapable
of a knowing, intelligent waiver of his rights"].
[59] CAL: Welf. & Inst. Code§
625.6.
[60] QUOTE FROM: Clark
v. Murphy (9C 2003) 331 F3 1062, 1073. CAL:
P v. Gurule (2002) 28 C4 557, 559 ["the officers
engaged him in some small talk to put him at ease"].
9th CIR: Mickey v. Ayers (9C 2010) 606
F3 1223, 1235 ["Casual conversation is generally not the type of
behavior that police should know is reasonably likely to elicit an
incriminating response."]. OTHER: US v.
Tail (8C 2006) 459 F3 854, 858 ["Polite conversation is not
the functional equivalent of interrogation."].
[61] QUOTES FROM: P v.
Musselwhite (1998) 17 C4 1216, 1237 ["evidence of police
efforts to trivialize the rights accorded suspects by the
Miranda decision—by 'playing down,' for example, or
minimizing their legal significance—may under some circumstances
suggest a species of prohibited trickery and weighs against a
finding that the suspect's waiver was knowing, informed, and
intelligent"]. 9th CIR: Doody v.
Ryan (9C 2011) 649 F3 986, 1002-1003 [officer implied to a
juvenile that the warnings "were just formalities"].
[62] USSC: Missouri v.
Seibert (2004) 542 US 600. 9th CIR: US
v. Narvaez-Gomez (9C 2007) 489 F3 970, 973
["A two-step interrogation involves eliciting an unwarned
confession, administering the Miranda warnings and
obtaining a waiver of Miranda rights, and then eliciting a
repeated confession."]. OTHER: US v.
Wise (8C 2009) 588 F3 531, 536 ["Here, there was no two
part interrogation because prior to the recitation of the
Miranda warnings, officers made no deliberate and
calculated effort to elicit a confession"]; US v.
Mashburn (4C 2005) 406 F3 303 [there was "no evidence that
the agents' failure to convey Miranda warnings to Mashburn
was deliberate or intentional."].
[62] CAL: P v. Camino (2010) 118 CA4 1359 [not an
intentional two-step mainly because, at the start of the
interview, the defendant was not a suspect (he was a witness)].
9th CIR: US v. Williams (9C 2006) 435 F3 1148, 1159
[relevant circumstances include "the timing, setting, and
completeness of the prewarning interrogation, the continuity of
police personnel and the overlapping content of the pre- and
postwarning statements."]. OTHER: US v. Williams (2C
2012) 681 F3 35, 42 [officer had officer-safety reason for asking
unwarned questions]; US v. Vallar (7C 2011) 635 F3 271,
285-86 [not a two-step violation when, before obtaining a waiver,
officers played an incriminating tape recording of an intercepted
conversation of a co-conspirator]; US v. Capers (2C 2010)
627 F3 470; US v. Pacheco-Lopez (6C 2008) 531 F3 420,
427-28; US v. Moore (2C 2012) 670 F3 222, 230 [that the
officers had a legitimate public safety reason for asking a
pre-waiver question indicates they did not deliberately employ the
two-step].
[63] CAL: P v. Krebs (2019) 8 C5
265, 310 [not a deliberate violation because the officer was
legitimately confused as to whether the defendant was in
Miranda custody]; P v. Scott (2011) 52
C4 452, 478 [not a two-step violation because "there is no
evidence here that the officers were following a policy of
disregarding the teaching of Miranda"];
P v. Sumagang (2021) 69 CA5 712, 728 [post-warning
statement suppressed because two-step was deliberate].
9th CIR: Reyes v. Lewis (9C 2015) 798 F3 815, 829
["deliberate" violation of Seibert]; US v.
Reyes-Bosque (9C 2010) 596 F3 1017, 1031. OTHER:
US v. Guillen (10C 2021) 995 F3 1095, 1111 [excellent
discussion of why a two-step violation can result only if it was
intentional]; US v. Magallon (DCC 2021) 984 F3 1263, 1283
[defendant "has not alleged that law enforcement deliberately used
a two-step interrogation method"]; US v.
Mashburn (4C 2005) 406 F3 303 [there was "no evidence that
the agents' failure to convey Miranda warnings to Mashburn
was deliberate or intentional."]; US v. Williams (2C 2012)
681 F3 35, 41 ["There is no subjective evidence that [the officer]
asked Williams about the ownership of the guns in a way calculated
to undermine the Miranda warning given later at the station
house," edited]; US v. Moore (2C 2012) 670 F3
222, 230 [not a two-step if officers "did not engage in a
deliberate two-step process calculated to undermine the
defendant's Miranda rights"]; US v.
Thomas (8C 2011) 664 F3 217, 223 ["The statements are
inadmissible only when an officer has intentionally used a
two-step interrogation process"]. NOTE:
Why intent is the determining factor: Because none of the
various views expressed by the Supreme Court in
Seibert garnered the votes of five Justices, the holding of
the Court "may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds." See
Marks v. US (1977) 430 US 188, 193. Because
Justice Kennedy concurred in the judgment of the plurality on the
narrowest grounds (he rejected the plurality's position that a
"fruits" analysis should be applied to unintentional violations),
his opinion represents the holding of the Court. And because
Justice Kennedy would apply the "fruits" analysis only if the
two-step procedure was employed deliberately, a statement will not
be suppressed if it was employed inadvertently. See P
v. Camino (2010) 116 CA4 173, 186-87;
P v. Delgado (2018) 27 CA5 1092, 1106 ["We take Justice
Kennedy's opinion as written: It requires a finding of a
deliberate intend and plan to circumvent Miranda."];
US v. Narvaez-Gomez (9C 2007) 489 F3
970, 974 ] [citing Williams, below, the court noted that
"Justice Kennedy's concurrence in Seibert is the Court's
holding because it is narrowest grounds with which the majority of
the Court would agree"]; US v. Mashburn (4C
2005) 406 F3 303, 308-9 ["Justice Kennedy's concurring opinion set
forth a narrowed test applicable only in the infrequent case in
which the two-step interrogation technique was used in a
calculated way to undermine the Miranda warning. Justice
Kennedy's opinion therefore represents the holding of the
Seibert Court."]; US v. Williams (9C
2006) 435 F3 1148, 1158 ["This narrower test—which excludes
confessions made after a deliberate, objectively ineffective
midstream warning—represents Seibert's holding."];
US v. Stewart (7C 2004) 388 F3 1079, 1090
["What emerges from the split opinions in Seibert is this:
at least as to deliberate two-step interrogations in which
Miranda warnings are intentionally withheld until after the
suspect confesses, the central voluntariness inquiry of
Elstad has been replaced by a presumptive rule of
exclusion, subject to a multifactor test for change in time,
place, and circumstances from the first statement to the
second."]; US v. Aguilar (8C 2004) 384 F3
520, 525 ["[Justice Kennedy's test] requires that the confession
will be excluded when the two-step interrogation is used in 'a
calculated way to undermine the Miranda warning."];
US v. Fellers (8C 2005) 397 F3 1090, 1098
["Under Justice Kennedy's framework, the Elstad rule
applies in the Fifth Amendment context only in the absence of a
deliberate law enforcement strategy designed to obtain
incriminating statements in violation of Miranda."].
[64] OTHER: US v. Guillen (10C
2021) 995 F3 1095, 1121 ["the government bears the burden of
proving by a preponderance of the evidence that the interrogating
officer did not deliberately withhold the requisite warnings as
part of a calculated strategy to foil Miranda"].
[65] USSC: Missouri v.
Seibert (2004) 542 US 600, 616 [the questioning was
"systematic, exhaustive, and managed with psychological skill"];
Bobby v. Dixon (2011) 565 US 23, 30 [in discussing
Seibert, the court noted that the "detective exhaustively
questioned Seibert"]. CAL: P v. Sumagang (2021) 69
CA5 712, 729 [during the prewarning interview, the detective
"elicited a detailed narrative" of the crime];
P v. Camino (2010) 118 CA4 1359, 1376 ["this is a close
case because of the comprehensiveness of the first interview which
left little, if anything, of incriminating potential left unsaid,"
edited]; P v. San Nicolas (2005) 34 C4 614, 639 ["defendant
answered a few questions posed by the Nevada police officer
concerning the location of his car and his duffel bag. Defendant
did not speak about the crime itself"]. 9th CIR:
Reyes v. Lewis (9C 2015) 798 F3 815, 831 ["That unwarned
interrogation, as well as the unwarned interrogation the previous
day at the Riverside police station, were, like the interrogation
in Seibert, 'systematic, exhaustive, and managed with
psychological skill.'"]; US v. Barnes (9C 2013) 713 F3
1200, 1206 ["The agents' initial round of interrogation was
specific and complete."]. OTHER: US v.
Aguilar (8C 2004) 384 F3 520, 525 ["the method and timing
of the two interrogations establish intentional, calculated
conduct by the police"; the unwarned interrogation "lasted
approximately ninety minutes"]; US v.
Carrizales-Toledo (10C 2006) 454 F3 1142, 1151-52 [courts
consider "the completeness and detail of the questions and answers
in the first round of interrogation" and the extent of "the
overlapping content of the two statements"];
US v. Narvaez-Gomez (9C 2007) 489 F3 970, 974 [court noted
the brevity of the initial questioning]; US v. Walker (8C
2008) 518 F3 983, 985 [the pre-waiver interview consisted of a
single question]; US v. Fellers (8C 2005) 397 F3 1090, 1098
[the pre-waiver conversation "was relatively brief"].
[66] CAL: P v. Sumagang (2021)
69 CA5 712, 728 [the detective "incorporated incriminating
statements [the suspect] had only made prewarning"];
P v. Krebs (2019) 8 C5 265, 311 [the officer "did not
attempt to use defendant's prewarning statements to induce him to
talk"]. OTHER: US v. Faust (1C 2017) 853 F3 39, 48
["there is no evidence that police leveraged Faust's post-Miranda
statements by utilizing any of his pre-Miranda
responses"].
[67] CAL: P v. Sumagang (2021)
69 CA5 712, 730 [court notes "the continuity of police personnel,
and the degree to which the interrogator's questions treated the
second round as continuous with the first"]. COMPARE:
Bobby v. Dixon (2011) 565 US 23, 31 ["this significant
break in time [four hours] and dramatic change in circumstances
created a new and distinct experience, ensuring that Dixon's
prior, unwarned interrogation did not undermine the effectiveness
of the Miranda warnings he received before confessing to
Hammer's murder."].
[68] CAL: P v. Krebs (2019) 8 C5
265, 307 [the officer "did not disparage the victims, engage in
conversation that could be fairly characterized as
'ingratiating'"]; P v. Scott (2011) 52 C4
452, 478 [no softening up as the officers "had no prior
relationship with defendant [and] did not seek to ingratiate
themselves with him by discussing unrelated past events and former
acquaintances. No did they disparage his victims."]; P v.
Honeycutt (1977) 20 C3 150. 9th CIR: Mickey
v. Ayers (9C 2010) 606 F3 1223, 1234-35.
[69] NOTE: The following are
indications that "softening up" will not automatically result in a
Miranda violation:
First, In 1977, the California Supreme Court, in
P v. Honeycutt (1977) 20 C3 150, ruled that softening-up
was illegal. The court reasoned that the tactic rendered the
defendant's waiver involuntary. As discussed below, the court's
ruling appears to be contrary to voluntariness principles
established by the US Supreme Court. Thus, Honeycutt is
likely a dead letter. Still, it is possible that softening-up
might run afoul of the US Supreme Court's ruling in
Missouri v. Seibert in which the court ruled that a
Miranda violation will result if officers implemented
tactics that were designed to, and did, undermine the
Miranda protections.
Second, Honeycutt was a plurality decision, and its
"softening up" discussion was pure dicta, which means it is
not binding authority. See P v. Gray (1982) 135 CA3
859, 863 ["the entire 'softening up' issue in Honeycutt was
dicta joined in by at most four justices."];
Adoption of Kelsey S. (1992) 1 C4 816, 829; P v.
Mendoza (2000) 23 C4 896, 915. Second, Honeycutt was
based on the premise that "softening up" renders the waiver
"involuntary." See P v. Honeycutt (1977) 20 C3 150,
160 ["When the waiver results from a clever softening-up of a
defendant, the subsequent decision to waive without a
Miranda warning must be deemed to be involuntary,"
edited.]. But nine years after Honeycutt was decided, the
US Supreme Court rejected the idea that involuntariness can result
from anything other than coercive police conduct. See
Colorado v. Connelly (1986) 479 US 157 170
["The sole concern of the Fifth Amendment, on which
Miranda was based, is governmental coercion. The
voluntariness of a (Miranda) waiver has always
depended on the absence of police overreaching, not on 'free
choice' in any broader sense of the word," edited.];
Colorado v. Spring (1987) 479 US 564, 574
[involuntariness requires "coercive police conduct"]; P v.
Clark (1993) 5 C4 950, 988 ["An involuntary waiver of
Miranda rights, however, is a product of government
coercion."]. Because "softening up" does not, by any definition of
the term, constitute "coercion," there does not seem to be a legal
basis for suppressing a statement based on
Honeycutt's "softening up is coercion" rationale. Third, it
appears the lower courts (and later the California Supreme Court)
recognized that Honeycutt lacked any legal legitimacy
because they have not been receptive to softening-up claims and
have usually rejected or distinguished the facts from those in
Honeycutt. See P v. Young (2019) 7 C5 905, 924-25
["this case lacks what we have described as the two salient
features of Honeycutt"; i.e., the officer's "long-standing
acquaintance with the suspect and [the officer's attempt] to
ingratiate himself" by disparaging the victim];
P v. Molano (2018) 7 C5 620, 662 [saying that the victim
was "not an angel" did not constitute softening up]; P v.
Musselwhite (1998) 17 C4 1216, 1236 ["The whole of [the
officer's] one-sentence statement is nowhere close to the
half-hour of 'softening up' of the suspect we disapproved in
[Honeycutt]."]; P v. Bestelmeyer (1985) 166
CA3 520, 528 ["This record does not indicate that the few brief
comments of Detective Cullen fall into [the 'softening up']
category."]; P v. Gray (1982) 135 CA3 859, 864 [5
minute pre-waiver explanation of the evidence of the suspect's
guilt was "hardly the 'softening-up' condemned in
Honeycutt."]; P v. Michaels (2002) 28 C4 486,
511; P v. Gurule (2002) 28 C4 557, 603 [Honeycutt
did not apply because the officers did not discuss the victim, nor
was there any evidence that the officers' "small talk" overbore
defendant's free will]; P v. Patterson (1979) 88 CA3
742, 751 ["it is clear that Honeycutt involves a unique
factual situation and hence its holding must be read in the
particular factual context in which it arose"]; P v.
Kelly (1990) 51 C3 931, 954; P v.
Maxey (1985) 172 CA3 661, 667; P v.
Mickey (1991) 54 C3 612, 641-52 [a lengthy pre-waiver
conversation did not invalidate a subsequent waiver, although the
defense did not specifically raise the "softening up" issue];
P v. Posten (1980) 108 CA3 633, 647 ["Honeycutt
is distinguishable on its facts"]. BUT ALSO SEE:
P v. Esqueda (1993) 17 CA4 1450, 1484, fn.21 [under
the circumstances, good cop-bad cop routine constituted softening
up].