Amicus Curiae Brief — Parish Ramon Carter, Petitioner v. Colorado

Supreme Court briefNov 30, 2017

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No. 17-634

In the Supreme Court of the United States

PARISH RAMON CARTER,

Petitioner,

COLORADO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE COLORADO SUPREME COURT

BRIEF OF THE RODERICK AND SOLANGE

MACARTHUR JUSTICE CENTER AND NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

David M. Shapiro

Roderick And Solange

MacArthur Justice Center

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0711

Jeffrey T. Green

Co-Chair, National

Association of Criminal

Defense Lawyers

Amicus Committee

1660 L Street, N.W.

Washington, DC 20036

(202) 872-8600

Rex S. Heinke

Counsel Of Record

Bryan M. Wittlin

Akin Gump Strauss

Hauer & Feld LLP

1999 Avenue of the Stars

Suite 600

Los Angeles, CA 90067

(310) 229-1000

rheinke@akingump.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether the bare-bones statement “you have the

right to have an attorney,” without any information

about when the suspect has a right to an attorney,

satisfies Miranda’s requirement that a suspect be

clearly informed of his right to an attorney before and

during interrogation.

(i)

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

The tactics that the interrogating officer

was trained to use on Petitioner

undermined Miranda. ........................................ 5

II. Law enforcement officers nationwide are

trained to issue ambiguous and barebones Miranda warnings. .................................. 6

III. Law enforcement officers routinely use

tactics to minimize Miranda warnings to

induce waiver as was done here. ..................... 12

A. Tactic 1: Trivializing the warnings as

mere bureaucratic formalities seen on

television or glossing over them in

conversation so as to not call

attention to them. ...................................... 13

B. Tactic 2: Rushing through the

warnings to minimize their impact on

the interrogation. ....................................... 17

C. Tactic 3: Failing to clarify that a

suspect has understood his or her

rights after each warning or at the

end of all of the warnings. ......................... 19

D. Tactic 4: Reciting the warnings from

memory instead of reading written

warnings..................................................... 20

E. Tactic 5: Failing to explain that

suspects can invoke their rights at

any time. .................................................... 22

V. These tactics prevent suspects from

understanding their Miranda rights. .............. 23

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

California Attorneys for Criminal

Justice v. Butts,

195 F.3d 1039 (9th Cir. 1999) .............................. 10

California v. Beheler,

463 U.S. 1121 (1983) ...................................... 10, 11

California v. Prysock,

453 U.S. 355 (1981) ................................................ 4

Carter v. People,

398 P.3d 124 (Colo. 2017) ............................. 5, 6, 20

Chaffin v. State,

121 So. 3d 608 (Fla. Dist. Ct. App.

2013)................................................................ 16, 18

Commonwealth v. Accardi,

57 Va. Cir. 177 (2001)........................................... 15

Commonwealth v. DiGiambattista,

813 N.E.2d 516 (Mass. 2004) ............................... 17

Commonwealth v. Gaboriault,

785 N.E.2d 691 (Mass. 2003) ............................... 15

Commonwealth v. Miranda,

641 N.E.2d 139 (Mass. Ct. App. 1994) ................. 21

Commonwealth v. Woodbine,

964 N.E.2d 956 (Mass. 2012) ............................... 22

Doody v. Ryan,

649 F.3d 986 (9th Cir. 2011) .......................... 17, 21

Duckworth v. Eagan,

492 U.S. 195 (1989) ................................................ 4

Florida v. Powell,

559 U.S. 50 (2010) .................................................. 4

Frias v. State,

722 P.2d 135 (Wyo. 1986) ..................................... 17

Harris v. State,

979 So. 2d 372 (Fla. Ct. App. 2008) ..................... 16

Laurito v. State,

120 So. 3d 203 (Fla. Dist. Ct. App.

2013)...................................................................... 17

Miranda v. Arizona,

384 U.S. 436 (1966) .......................................passim

Missouri v. Seibert,

542 U.S. 600 (2004) ...................................... 3, 4, 10

Moran v. Burbine,

475 U.S. 412 (1986) .............................................. 13

Olson v. State,

262 P.3d 227 (Alaska Ct. App. 2011) ................... 15

Oregon v. Elstad,

470 U.S. 298 (1985) .............................................. 10

People v. Alfonso,

142 A.D.3d 1180 (N.Y. App. Div.

2016)...................................................................... 17

People v. Johnson,

107 Cal. Rptr. 3d 228 (Cal. Ct. App.

2010)...................................................................... 16

People v. McCaw,

137 A.D.3d 813 (N.Y. App. Div. 2016) ................. 23

People v. Musselwhite,

954 P.2d 475 (Cal. 1998) ...................................... 16

Ramirez v. State,

739 So. 2d 568 (Fla. 1999) .............................. 17, 21

Reed v. State,

96 So. 3d 1118 (Fla. Ct. App. 2012) ..................... 18

Ross v. State,

45 So. 3d 403 (Fla. 2010) ...................................... 17

Smith v. Clark,

612 F. App’x 418 (9th Cir. 2015) .................... 10, 11

State v. Diaz,

847 N.W.2d 144 (S.D. 2014) ................................. 16

State v. Doe,

50 P.3d 1014 (Idaho 2002).................................... 16

State v. Figueroa,

146 A.3d 427 (Me. 2016) ....................................... 22

State v. Grey,

907 P.2d 951 (Mont. 1995) ................................... 21

State v. Grimestad,

598 P.2d 198 (Mont. 1979) ................................... 17

State v. Hernandez,

34 A.3d 669 (N.H. 2011) ....................................... 16

State v. Herron,

318 P.3d 281 (Wash. Ct. App. 2015) .................... 23

State v. Hughes,

272 S.W.3d 246 (Mo. Ct. App. 2008) .................... 16

State v. Luckett,

981 A.2d 835 (Md. Ct. App. 2009) .................. 17, 18

State v. Quigley,

2005-Ohio-5276 (Ct. App. 2005)........................... 16

State v. Sherwood,

353 A.2d 137 (N.J. Super. App. Div.

1976)...................................................................... 23

State v. Stone,

303 P.3d 636 (Idaho Ct. App. 2013) ..................... 16

State v. Wright,

2015 Del. Super. LEXIS 59 (Del. S.

Ct. Feb. 2, 2015) ................................................... 20

Umana v. State,

447 S.W.3d 346 (Tex. App. 2014) ......................... 23

United States v. Bradshaw,

No. 09-CR-10296-RGS, 2011 WL

1085122 (D. Mass. Mar. 22, 2011) ....................... 12

United States v. Fautz,

812 F. Supp. 2d 570 (D.N.J. 2011) ....................... 10

vii

United States v. Gonzalez,

719 F. Supp. 2d 167 (D. Mass. 2010) ................... 17

United States v. Gwathney-Law,

2016 U.S. Dist. LEXIS 185388 (W.D.

Ky. Dec. 1, 2016) ................................................... 22

United States v. Lamia,

429 F.2d 373 (2d Cir. 1970) .................................. 22

United States v. Toliver,

480 F. Supp. 2d 1216 (D. Nev. 2007) ............. 18, 21

United States v. Warren,

642 F.3d 182 (3d Cir. 2011) .................................. 22

Watkinson v. State,

980 P.2d 469 (Alaska Ct. App. 1999) ................... 16

Wright v. State,

161 So. 3d 442 (Fla. Ct. App. 2014) ............... 16, 18

Other Authorities

Adam S. Bazelon, Adding (or

Reaffirming) a Temporal Element to

the Miranda Warning “You Have the

Right to an Attorney,” 90 MARQ. L.

REV. 1009 (2007) ............................................. 12, 14

D. Christopher Dearborn, “You Have the

Right to an Attorney,” But Not Right

Now: Combating Miranda’s Failure

by Advancing the Point of Attachment

Under Article XII of the

Massachusetts Declaration of Rights,

44 SUFFOLK U. L. REV. 359 (2011)........................ 24

viii

Anthony J. Domanico et. al., Overcoming

Miranda: A Content Analysis of the

Miranda Portion of Police

Interrogations, 49 IDAHO L. REV. 1

(2012) ............................................ 13, 14, 18, 19, 24

Mary D. Fan, The Police Gamesmanship

Dilemma in Criminal Procedure, 44

U.C. DAVIS L. REV. 1407 (2011) .............................. 7

Saul M. Kassin & Rebecca J. Norwick,

Why People Waive their Miranda

Rights: The Power of Innocence, 28 L.

& HUMAN BEHAVIOR 211 (2004) ........................... 13

Richard A. Leo, The Impact of Miranda

Revisited, 86 J. CRIM. L. &

CRIMINOLOGY 621 (1996) ............................ 7, 14, 15

Richard A. Leo, Questioning the

Relevance of Miranda in the TwentyFirst Century, 99 MICH. L. REV. 1000

(2001) .............................................................. 14, 18

Richard A. Leo & Welsh S. White,

Adapting to Miranda: Modern

Interrogators’ Strategies for Dealing

with the Obstacles Posed by Miranda,

84 MINN. L. REV. 397 (1999) ..........................passim

Laurie Magid, Deceptive Police

Interrogation Practices: How Far is

too Far?, 99 MICH. L. REV. 1168

(2001) ................................................................ 7, 12

Aurora Maoz, Empty Promises: Miranda

Warnings in Noncustodial

Interrogations, 110 MICH. L. REV.

1309 (2012) ..................................................... 12, 15

Alexander Nguyen, The Assault on

Miranda, THE AMERICAN PROSPECT

(Dec. 19, 2001) .................................................. 8, 12

Sandra Guerra Thompson, Evading

Miranda: How Seibert and Patane

Failed to “Save” Miranda, 40 VAL. U.

L. REV. 645 (2006) ................................................. 10

Charles D. Weisselberg, Mourning

Miranda, 96 CAL. L. REV. 1519

(2008) ................................................ 8, 9, 10, 14, 22

Charles D. Weisselberg, Saving

Miranda, 84 CORNELL L. REV. 109

(1998) ................................................................ 9, 10

INTEREST OF THE AMICI CURIAE 1

The Roderick and Solange MacArthur Justice

Center (“RSMJC”) is a public interest law firm founded in 1985 by the family of J. Roderick MacArthur to

advocate for human rights and social justice through

litigation. RSMJC has offices at Northwestern Pritzker School of Law, at the University of Mississippi

School of Law, in New Orleans, in St. Louis, and in

Washington, D.C. RSMJC attorneys have led civil

rights battles in areas that include police misconduct,

the rights of the indigent in the criminal justice system, compensation for the wrongfully convicted, and

the treatment of incarcerated men and women.

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public defenders, military defense counsel, law professors, and

judges. NACDL is the only nationwide professional

bar association for public defenders and private criminal defense lawyers. NACDL is dedicated to advancing the proper, efficient, and just administration of

1 No counsel for a party authored this brief in whole or part,

nor did any person or entity, other than amici or their counsel,

make a monetary contribution to the preparation or submission

of this brief. Counsel of record for the parties have received

timely notice of the intent to file this brief, and have consented

to this filing.

justice. NACDL files numerous amicus briefs each

year in the U.S. Supreme Court and other federal and

state courts, seeking to provide amicus assistance in

cases that present issues of broad importance to criminal defendants, criminal defense lawyers, and the

criminal justice system as a whole.

SUMMARY OF ARGUMENT

Law enforcement officers across the country continue to drain the substance out of Miranda. Law enforcement training programs and manuals exacerbate

the systemic subversion of Miranda’s protections.

Interrogating officers trivialize Miranda warnings, calling them a mere formality or, in this case,

“formal little rights things.” As they did in this case,

officers regularly do all of the following. Officers

speed up the warnings and avoid eye contact to convey that the warnings are not important. Officers recite the warnings from memory, often failing to inform suspects of their complete Miranda rights. Officers often fail to ask suspects if they understand the

Miranda warnings. And officers often fail to tell suspects that they can invoke their rights at any time.

These interrogation tactics are pervasive. One study

found that they are used in nearly half of interrogations.

These interrogation tactics are symptomatic of

the flawed law enforcement trainings that encourage

them. Widely used training materials teach law enforcement officers to “introduce Miranda casually”

and to give the warnings in a way that signals that

they are a barrier to communicating important information. Officers are taught that they may have

“something to gain” by obtaining an admission that

can be used—even without a proper Miranda warn-

ing—for impeachment. And, other widely used materials train officers to inform suspects who seem unlikely to waive their Miranda rights that they are not

in custody, and then interview them without a Miranda warning. These interrogation tactics are widespread.

This Court has sharply rebuked such interrogation tactics. Missouri v. Seibert, 542 U.S. 600, 617

(2004) (plurality) (“Strategists dedicated to draining

the substance out of Miranda cannot accomplish by

training instructions what . . . Congress could not do

by statute” to impair Miranda). This Court has also

found that even practices that are perhaps “exception[s]” can be “sufficiently widespread to be the object of concern” and can merit this Court’s attention.

Miranda v. Arizona, 384 U.S. 436, 447 (1966); see also

Seibert, 542 U.S. at 609 (plurality) (“Although we

have no statistics on the frequency of this practice, it

is not confined to Rolla, Missouri.”).

The systemic use of these tactics undermines Miranda’s goals of ensuring that suspects are adequately informed of their rights and that their waivers are

voluntary. Such tactics, when combined with the

failure here to inform a suspect that he or she is entitled to an attorney immediately, at the interrogation

itself, diminishes Miranda to the vanishing point.

This Court should grant the Petitioner’s petition for a

writ of certiorari from the Colorado Supreme Court,

and should ultimately reverse the decision below, and

restore the promise of Miranda.

ARGUMENT

Miranda established safeguards to encourage truly voluntary waivers and subsequent confessions free

from “all interrogation practices . . . [that] exert such

pressure upon an individual as to disable him from

making a free and rational choice.” Miranda, 384

U.S. at 464-65. Indeed, Miranda rights can be

waived only with informed and knowing consent.

California v. Prysock, 453 U.S. 355, 359 (1981); see

also Duckworth v. Eagan, 492 U.S. 195, 203 (1989);

Florida v. Powell, 559 U.S. 50, 51 (2010). And a Miranda warning is constitutional only if it “reasonably

conve[ys] to [a suspect] his rights as required by Miranda.” Prysock, 453 U.S. at 361.

Training programs and manuals teach law enforcement officers to use tactics that induce Miranda

waivers, even though many of those tactics violate

Miranda’s admonitions. 2 In 2004, this Court found in

Seibert that the warnings at issue did not reasonably

convey the suspect’s rights where the police used interrogation tactics, learned during their training,

that were “adapted to undermine the Miranda warnings.” Seibert, 542 U.S. at 616-17 (plurality).

Regrettably, law enforcement officers continue to

give unconstitutional Miranda warnings to induce

waivers on a large scale, because officers are still

commonly trained to use tactics to evade Miranda. 3

This Court’s intervention is therefore necessary to restore the protections set forth in Miranda.

2 Richard A. Leo & Welsh S. White, Adapting to Miranda:

Modern Interrogators’ Strategies for Dealing with the Obstacles

Posed by Miranda, 84 MINN. L. REV. 397, 419 (1999).

3 Id.

The tactics that the interrogating officer

was trained to use on Petitioner undermined Miranda.

This case demonstrates the modern tactics law

enforcement officers use. The record below shows

that the detective interrogating Petitioner coupled

the bare-bones warning “you have a right to an attorney” with several tactics that exacerbated the barebones warning:

•

Minimized the importance of the Miranda

warnings by calling them “formal little

rights things”; 4

•

Sped through the warnings in only 10 to

15 seconds; 5

•

Recited the warnings (incompletely) from

memory though the complete written

warnings were easily accessible to her; 6

•

Failed to confirm Petitioner’s understanding after each warning, and failed to do so

even after giving all of the warnings; 7

•

Failed to ask at the end of the warnings,

“having these rights in mind, do you wish

to speak to me now,” or any similar ques-

4 Carter v. People, 398 P.3d 124, 125 (Colo. 2017).

Detective Fronapfel Testimony at Pre-Trial Evidentiary

Hearing (Aug. 24, 2007), at 221.

6 Carter, 398 P.3d at 134 (Hood, J., dissenting); Fronapfel

Testimony, supra at 202.

7 Carter, 398 P.3d at 125.

tion, and proceeded directly to interview

Petitioner; 8

•

Failed to inform Petitioner that he could

exercise his rights at any time. 9

The detective admitted that she began using

these techniques after attending a training program

by the Aurora, Colorado Police Department that

taught her to “[m]inimize the impact of Miranda on

the interview.” 10

This case is not an anomaly. These interrogation

tactics are largely a byproduct of systemic defects in

law enforcement training programs and manuals

across the country.

II. Law enforcement officers nationwide are

trained to issue ambiguous and bare-bones

Miranda warnings.

This Court’s concern over training defects dates

back to Miranda itself. In Miranda, this Court established safeguards specifically to target training materials that encouraged sharp practices during custodial interrogations. This Court emphasized that police

manuals and texts “present the most . . . effective

means presently used to obtain statements through

custodial interrogation.” Miranda, 384 U.S. at 449.

The Miranda Court highlighted the defects in the

training manuals that existed at the time, one of

which advised:

8 Id.

9 Id.

10 Id. at 134 (Hood, J., dissenting).

If at all practicable, the interrogation should

take place in the investigator’s office or at

least in a room of his own choice. The subject

should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more

keenly aware of his rights and more reluctant

to tell of his indiscretions or criminal behavior within the walls of his home. Moreover,

his family and other friends are nearby, their

presence lending moral support. In his office,

the investigator possesses all the advantages.

The atmosphere suggests the invincibility of

the forces of the law. 11

Despite Miranda’s admonitions, systemic deficiencies in law enforcement training persist. With

the goal of eliciting confessions, law enforcement officers are incentivized to “game” the rules of constitutional criminal procedure by “pushing on blind spots,

blurry zones, or gaps in rules and remedies” that they

perceive as barriers to conducting successful interrogations. 12 Many officers see the Miranda warnings

as one such “stumbling block,” and some admit that

they “try to de-emphasize it, at least its importance,

when [they are] doing the interrogation.” 13

11 Miranda, 384 U.S. at 449-50 (quoting Charles E. O’Hara

& Gregory L. O’Hara, Fundamentals of Criminal Investigation

99 (1956)).

12 Mary D. Fan, The Police Gamesmanship Dilemma in

Criminal Procedure, 44 U.C. DAVIS L. REV. 1407, 1409 (2011).

13 Richard A. Leo, The Impact of Miranda Revisited, 86 J.

CRIM. L. & CRIMINOLOGY 621, 663 (1996); see also Laurie Magid,

Deceptive Police Interrogation Practices: How Far is too Far?, 99

MICH. L. REV. 1168, 1175 (2001).

To be sure, an interrogating officer’s subjective

intent to evade Miranda does not make a given Miranda warning unconstitutional. Rather, law enforcement’s objective to evade Miranda explains why

tactics that inject ambiguity into Miranda warnings

are pervasive.

Since this Court’s decision in Miranda, police

manuals have issued new and sophisticated strategies for interrogators to overcome “obstacles” while

The examples

they give Miranda warnings. 14

abound:

•

John E. Reid & Associates 15 Training

Manual on Criminal Interrogation and

Confessions: 16 Interrogators should “introduce Miranda casually,” stand in front of

the suspect while holding a thick folder as

a prop, and finger through the case folder

to create the impression that it contains

material of an incriminating nature about

the suspect. 17

14 Leo & White, supra at 407-08.

15 John E. Reid & Associates is the largest national provider

of interrogation training. Charles D. Weisselberg, Mourning

Miranda, 96 CAL. L. REV. 1519, 1530 (2008). Reid & Associates

states that more than 300,000 law enforcement professionals

have attended their three-day program since it began in 1974.

Id.

16 This is the leading training manual for police interroga-

tions. Alexander Nguyen, The Assault on Miranda, THE AMERICAN PROSPECT (Dec. 19, 2001), http://prospect.org/article/assault-

miranda.

Id.; Weisselberg, supra at 1560 (citing John E. Reid &

Associates, Inc., Conducting a Custodial Behavior Analysis In17

•

Seminar materials developed by a private

training institute for police departments:

Give Miranda warnings in a way that signals that they are a barrier to communicating important information to a suspect.

For example, preface warnings with: “As

you know, we are investigating . . . (issue) .

. . . I want to fill you in on what’s going on

with . . . (issue) . . . , but before we go on I

want you to know that . . . .” 18

California District Attorneys Association

Training Bulletin: Police officers have “little to lose and perhaps something to gain”

by not complying with Miranda and obtaining a confession that is admissible for

impeachment. 19

Training materials produced by POST 20

and other law enforcement entities instruct

that:

o If a subject appears cooperative and

ready to waive his or her Miranda

rights, administer a Miranda warn-

terview,

Investigator

Tips

(Jan.-Feb.

http://www.reid.com/educational_info/r_tips.html).

2008),

18 Weisselberg, supra at 1560.

19 Charles D. Weisselberg, Saving Miranda, 84 CORNELL L.

REV. 109, 133-34 (1998) (citing Oregon v. Hass, 420 U.S. 714,

723 (1975)).

California Commission on Peace Officer Standards and

Training (POST) is an agency in the California Department of

Justice that sets standards for police training, certifies courses

for law enforcement officers, and distributes its own training

materials. Weisselberg, Mourning Miranda, supra at 1542.

ing and obtain a waiver, thus eliminating the issue; or

o If a subject appears to be uncooperative and unlikely to waive his or her

Miranda rights, take the coerciveness (i.e., the “custody”) out of the

interrogation by simply informing

the suspect that he or she is not under arrest and interview the subject

without a Miranda admonishment

and waiver. 21

Trainings that encourage interrogation “outside

Miranda” and “question first, warn later” tactics as

discussed in Elstad 22 and Seibert 23 also persist and

appear to be spreading. 24

For example, in Smith v. Clark, 612 F. App’x 418

(9th Cir.), reh’g denied, 804 F.3d 983 (2015), cert. de21 Id.; see California v. Beheler, 463 U.S. 1121 (1983) (per

curiam) (finding that Miranda warnings were not required for a

suspect who was not in custodial interrogation); Smith v. Clark,

612 F. App’x 418, 424 (9th Cir. 2015) (describing officers using

this practice and calling it “Beheler-ing”).

22 Oregon v. Elstad, 470 U.S. 298, 301 (1985).

23 Seibert, 542 U.S. at 609-11, 616 n.6 (plurality).

Sandra Guerra Thompson, Evading Miranda: How

Seibert and Patane Failed to “Save” Miranda, 40 VAL. U. L. REV.

645, 670 (2006) (citing Weisselberg, Saving Miranda, supra at

132-37); see California Attorneys for Criminal Justice v. Butts,

195 F.3d 1039, 1041 (9th Cir. 1999) (police officers were trained

to continue interrogations “outside Miranda” despite suspects’

invocation of their Miranda rights); United States v. Fautz, 812

F. Supp. 2d 570, 592 (D.N.J. 2011) (police officers were trained

to not administer Miranda warnings to suspects who previously

indicated their interest in obtaining an attorney).

nied, 136 S. Ct. 1464 (2016), the Ninth Circuit affirmed a defendant’s conviction and denied his petition for federal habeas corpus relief because this

Court’s guidance in California v. Beheler, 463 U.S.

1121 (1983) (per curiam), never clarified how much

weight a statement that a suspect “is not under arrest” should be given. Indeed, California police departments commonly interpret Beheler to mean that

so long as a suspect is told he or she is not under arrest, Miranda warnings are unnecessary. The Ninth

Circuit gave nearly dispositive weight to the fact that

the defendant had been told he was not under arrest,

even though all other circumstances suggested that

the defendant was “in custody” for Miranda purposes.

Smith, 612 F. App’x at 421, 423.

In Smith, the police intensely interrogated the

16-year-old defendant in a small, windowless room in

the police station, for hours, without any family

members present. Id. at 422 (Watford, J., concurring). In considering the defendant’s petition for habeas relief, the only factor the court identified in finding that the defendant was not in custody was that he

had been advised three times that he was not under

arrest. Id. One interrogating officer asked another

after the defendant’s initial interrogation, “You Beheler-ing here?” Id.

As Judge Watford points out in his concurring

opinion, “[u]ntil the Supreme Court says otherwise,

California courts will remain free to validate the ‘Beheler-ing’ of suspects, even when that practice is used

to evade Miranda’s requirements.” Id. (emphasis

added). Law enforcement’s systemic effort to skirt

Miranda’s requirements, often guided by training

practices and manuals, like Beheler-ing, will continue

to undermine Miranda unless this Court intervenes.

This Court’s intervention is especially needed

given that courts continue to weigh these interrogation trainings, though defective, in favor of law enforcement officers’ credibility when analyzing the adequacy of the Miranda warnings and the voluntariness of the resulting waivers. See, e.g., United States

v. Bradshaw, No. 09-CR-10296-RGS, 2011 WL

1085122 (D. Mass. Mar. 22, 2011) (rejecting defendant’s claim that no Miranda warnings were given,

finding that one likely was given because (1) Miranda

is embedded in police practice and culture and (2) the

officers received interrogation training). Yet, law enforcement officers are taught to frame the Miranda

warnings in ways that convince suspects to not exercise their rights, induce waivers, and elicit confessions. 25

III. Law enforcement officers routinely use tactics to minimize Miranda warnings to induce waiver as was done here.

Researchers have found that “virtually all successful interrogations . . . involve some deception.” 26

Law enforcement officers readily admit that there are

“a lot of ways to get around Miranda . . .. Most guys

know how to get somebody to waive their rights.” 27

25 Aurora Maoz, Empty Promises: Miranda Warnings in

Noncustodial Interrogations, 110 MICH. L. REV. 1309, 1320

(2012); Adam S. Bazelon, Adding (or Reaffirming) a Temporal

Element to the Miranda Warning “You Have the Right to an Attorney,” 90 MARQ. L. REV. 1009, 1034 (2007).

26 Magid, supra at 1168.

27 Nguyen, supra.

These tactics are so successful that suspects waive

their rights 80 to 93 percent of the time. 28

Law enforcement’s tactics cut against suspects

having “full awareness of both the nature of the

right[s] being abandoned and the consequences of the

decision to abandon [them].’” Moran v. Burbine, 475

U.S. 412, 421 (1986). The bare-bones warning “you

have a right to an attorney” is even more troubling

and deserving of this Court’s review when coupled

with tactics that further inject ambiguity into the Miranda warnings. Some commonly employed tactics

that were used against Petitioner include:

A. Tactic 1: Trivializing the warnings as

mere bureaucratic formalities seen on

television or glossing over them in conversation so as to not call attention to

them.

“Perhaps the most common strategy employed by

interrogators seeking Miranda waivers is to deemphasize the significance of the required warnings.” 29 Researchers have studied this practice extensively, finding that law enforcement officers minimize the Miranda warnings by:

28 Anthony J. Domanico et. al., Overcoming Miranda: A

Content Analysis of the Miranda Portion of Police Interrogations,

49 IDAHO L. REV. 1, 8 (2012); see also Saul M. Kassin & Rebecca

J. Norwick, Why People Waive their Miranda Rights: The Power

of Innocence, 28 L. & HUMAN BEHAVIOR 211, 214-15 (2004)

(study showing effect of various interrogation tactics on waiver

rates).

29 Leo & White, supra at 433.

•

Calling attention to the formality of the warnings as a business matter that needs to be dispensed with before questioning;

Trivializing the legal significance of the warnings by referring to their popularity on television and in movies, perhaps joking that the

suspect is already well-aware of his or her

rights and can likely recite them from memory;

Characterizing the warnings as “mutually beneficial” to downplay that these rights belong to

the suspect; and

Camouflaging the warnings by blending them

into the conversation, delivering them in a perfunctory or bureaucratic tone of voice, and refraining from doing or saying anything unusual to ensure that the suspect pays no special

attention to the Miranda warnings. 30

Using these tactics, officers attempt to convey

that the warnings should not concern the suspect and

that waiver is a foregone conclusion. The interrogators’ “hope is that the suspect will . . . come to see the

Miranda warning and waiver requirements . . . as

equivalent to other standard bureaucratic forms that

one signs without reading or giving much thought.” 31

One study found that officers minimized Miranda’s

importance in 45 percent of interrogations. 32 Other

30 Id. at 433-35; Leo, supra at 662-63; Richard A. Leo, Ques-

tioning the Relevance of Miranda in the Twenty-First Century,

99 MICH. L. REV. 1000, 1018-1019 (2001); Weisselberg, Mourning

Miranda, supra at 1558; Domanico, supra at 8; Bazelon, supra

at 1034-35.

31 Leo & White, supra at 435.

32 Domanico, supra at 15-16.

researchers have confirmed the use of this tactic in

several independent studies of police interrogations. 33

The officer in this case was trained to use this

strategy and she admittedly used this strategy by

calling Petitioner’s Miranda rights “formal little

rights things.”

Yet the Colorado Supreme Court

found that the Miranda warnings here were adequate.

Troublingly, the court below was not alone.

Courts routinely approve of this tactic, refusing to

suppress the statements given to officers who used it.

See, e.g., Olson v. State, 262 P.3d 227, 229 (Alaska Ct.

App. 2011) (“I have to read you Miranda. Only because, that’s the way the rules are . . . and that way

we are allowed to have our conversation without getting me in trouble.”); Commonwealth v. Gaboriault,

785 N.E.2d 691, 696 (Mass. 2003) (“just a formality”);

Commonwealth v. Accardi, 57 Va. Cir. 177, 179

(2001) (“kind of a formality that I got to go through.

33 Leo, supra at 663 (citing three examples where these tac-

tics were used and resulted in waiver); Leo & White, supra at

434 (citing two interrogations as examples of these tactics where

officers said “don’t let this ruffle your feathers or anything like

that it’s just a formality that we have to go through” and “before

we talk to anybody about anything, there’s a thing called Miranda and I don’t know if you’ve heard about it, if you’ve seen it

on TV, um . . . the . . . just to cover ourselves and to cover you, to

protect you, we need to, to advise you of your Miranda rights . . .

”); Maoz, supra at 1320 (citing an example where an interrogator said “In order for me to talk to you . . . I need to advise you of

your rights. It’s a formality. I’m sure you’ve watched television

with the cop shows, right, and you hear them say their rights

and so you can probably recite this better than I can, but it’s

something I need to do and we can [get] this out of the way before we talk about what’s happened.”).

I’m just going to read you this, kind of get it out of the

way.”); State v. Diaz, 847 N.W.2d 144, 151 (S.D. 2014)

(“protocol that I’ve gotta go through first, okay? Not

a big deal at all and we’ll get through this and well

getcha taken care of.”); State v. Quigley, 2005-Ohio5276, ¶ 21 (Ct. App. 2005) (“as a courtesy”); People v.

Musselwhite, 954 P.2d 475, 487 (Cal. 1998) (defendant argued that the interrogating officer characterized the warnings as “an unimportant ‘technicality’”);

People v. Johnson, 107 Cal. Rptr. 3d 228, 259 (Cal.

Ct. App. 2010) (defendant argued that the interrogating officer characterized the warnings as “clearing a

‘technicality’”); Chaffin v. State, 121 So. 3d 608, 613

(Fla. Dist. Ct. App. 2013); (“formality”); State v. Doe,

50 P.3d 1014, 1018 (Idaho 2002) (“this little piece of

paper”); State v. Stone, 303 P.3d 636, 644 (Idaho Ct.

App. 2013) (defendant argued that the interrogating

officer characterized the warnings as “mere formalities”); Wright v. State, 161 So. 3d 442, 449 (Fla. Ct.

App. 2014) (“something I have to do”); State v.

Hughes, 272 S.W.3d 246, 255 n.6 (Mo. Ct. App. 2008)

(defendant argued that the interrogating officer

“clearly intended . . . to minimize the effect of the Miranda warning . . . and weaken his ability to knowingly and voluntarily exercise his rights” and the officers presented him the wavier form “in such a way

as to suggest that his signature on the form was a

mere administrative task such as getting the correct

spelling of his name”); Watkinson v. State, 980 P.2d

469, 471 (Alaska Ct. App. 1999) (defendant argued

that the interrogating officers “downplayed” his

rights); State v. Hernandez, 34 A.3d 669, 676 (N.H.

2011) (“minimization techniques”); Harris v. State,

979 So. 2d 372, 373-74 (Fla. Ct. App. 2008) (defendant argued that the interrogating officers “minimized

the significance of the rights”).

Other courts have recognized that this strategy is

unfairly coercive and induces involuntary waivers of

suspects’ Miranda rights. See, e.g., Doody v. Ryan,

649 F.3d 986, 991, 1004-05 (9th Cir. 2011) (en banc)

(“formality” and “mutual benefit”); People v. Alfonso,

142 A.D.3d 1180, 1180-81 (N.Y. App. Div. 2016) (“[expletive] form that he had to get past” and “detective

testified . . . that he characterized the form in this

way to ‘downplay’ it and ‘minimize its importance’”);

Ross v. State, 45 So. 3d 403, 430 (Fla. 2010) (“just a

matter of procedure”); State v. Grimestad, 598 P.2d

198, 200 (Mont. 1979) (“part of the procedure”); Frias

v. State, 722 P.2d 135, 142-43 (Wyo. 1986) (“seriously

downplayed” and “lip service” and “formalities”);

Ramirez v. State, 739 So. 2d 568, 575-76 (Fla. 1999)

(“minimize and downplay” and “casual, offhand manner”); State v. Luckett, 981 A.2d 835, 848 (Md. Ct.

App. 2009) (“downplayed”); Commonwealth v.

DiGiambattista, 813 N.E.2d 516, 526 (Mass. 2004)

(“minimization”); Laurito v. State, 120 So. 3d 203, 205

(Fla. Dist. Ct. App. 2013) (“minimized”); United

States v. Gonzalez, 719 F. Supp. 2d 167, 177 (D.

Mass. 2010) (“designed in a way to minimize the risk

that Gonzalez would exercise his Miranda rights”).

The use of this pervasive tactic makes the barebones Miranda warning in this case even more troubling and deserving of this Court’s review.

B. Tactic 2: Rushing through the warnings

to minimize their impact on the interrogation.

Another way interrogators skirt Miranda warnings is by delivering the warnings quickly, without

pausing or looking at the suspect, to communicate

that the warnings are insignificant. 34 The officer in

this case sped through the warnings in only 10 to 15

seconds of a two-hour interview. 35

This case is far from an anomaly. One study

shows that officers speak significantly (31%) faster

when they are delivering the Miranda warnings than

when they are speaking in the thirty seconds before

or after the warnings. 36 Listeners find this increased

rate of speaking difficult to understand. 37 Courts

have also noted this tactic. See, e.g., United States v.

Toliver, 480 F. Supp. 2d 1216, 1224 (D. Nev. 2007),

aff’d, 380 F. App’x 570 (9th Cir. 2010) (“spoke rapidly”); Luckett, 981 A.2d at 848 (“tongue was faster

than the ear”); Reed v. State, 96 So. 3d 1118, 1118

(Fla. Ct. App. 2012) (Wolf, J., concurring) (“rapid fire

manner”); cf. Chaffin v. State, 121 So. 3d 608, 614

(Fla. Ct. App. 2013) (“normal cadence”); Wright v.

State, 161 So. 3d 442, 450 (Fla. Ct. App. 2014) (“moderate pace”).

A speedy recitation of the warnings does not satisfy Miranda if the listener cannot follow the words

being spoken. This tactic, which was used here, further undermines Miranda and substantiates the need

34 Leo, Questioning the Relevance, supra at 1018-19; Leo &

White, supra at 433-34.

35 Fronapfel Testimony, supra at 221, 226.

36 Domanico, supra at 17.

37 Id. (“In our sample, detectives read the Miranda warning

at an average rate of 268 words per minute (wpm). This finding

is worrisome because speech comprehension declines slightly up

to a speaking rate of 275 wpm (and even more rapidly beyond

that point.)”).

for this Court’s review to confirm that failing to inform a suspect that he or she is entitled to an attorney immediately, at the interrogation itself, violates

Miranda.

C. Tactic 3: Failing to clarify that a suspect

has understood his or her rights after

each warning or at the end of all of the

warnings.

Law enforcement officers also fail to clarify

whether suspects understand their Miranda rights.

To preserve Miranda, officers should encourage comprehension by asking suspects whether they understand each right after reciting the respective warning. Yet studies show that officers rarely confirm

whether suspects understand their Miranda rights

after each warning, and do not even do so after reading the warnings in their entirety.

While it is difficult to gather data on Miranda

warnings, one study considered 29 interrogations.

The police rarely took steps to ensure that suspects

understood their Miranda rights. In 23 of 29 interrogations (79%), police officers asked the suspects if

they understood their rights only after all of the Miranda warnings were read. In four interrogations

(14%), officers asked the suspects if they understood

their rights after some, but not all, of the individual

warnings had been read. Only in two interrogations

(7%), did officers ask the suspects if they understood

their rights after each Miranda warning.” 38

The officer in this case gave the warning “you

have a right to an attorney” without asking Petitioner

38 Domanico, supra at 15.

if he understood his rights. Instead, after speeding

through the warnings, the officer went straight into

questioning. And yet, the court below concluded that

he knowingly waived his right to have an attorney

present at the interrogation.

D. Tactic 4: Reciting the warnings from

memory instead of reading written warnings.

Law enforcement officers also recite the Miranda

warnings from memory rather than read the warnings directly from their department’s written cards.

Much like the reasons behind saying the warnings

are something the suspect has perhaps already memorized from television, officers recite warnings from

memory to trivialize the warnings’ legal significance. 39 Indeed, the detective interrogating Petitioner admitted that she abandoned the practice of reading the warnings from her department’s card and

gave them from memory after being trained to

“[m]inimize the impact of Miranda on the interview.”

Carter, 398 P.3d at 134 (Hood, J., dissenting).

Reciting the Miranda warnings from memory also risks misstating them and often results in officers

leaving out crucial admonishments. State v. Wright,

2015 Del. Super. LEXIS 59, at *6-7 (Del. S. Ct. Feb. 2,

2015) (noting that the “risk [of misstating the Miranda rights], even for seasoned detectives, of not using

39 Leo & White, supra at 435 (“[I]nterrogators seek to trivi-

alize the warnings’ legal significance. Their hope is that the

suspect will not come to see the Miranda warning and waiver

requirements as a crucial transition point in the questioning or

as an opportunity to terminate the interrogation . . . .”).

a Miranda cards” was illustrated by the officer omitting the suspect’s right to counsel).

This tactic was used, for example, in Doody where

the Ninth Circuit held that the officer’s “ad libbed”

warning regarding the right to counsel was unconstitutional because the interrogating detective “downplayed the warnings’ significance” and “deviated from

an accurate reading of the Miranda waiver form.”

Doody, 649 F.3d at 991, 1003. The court thus found

that the Miranda warnings were unconstitutional,

and granted the defendant’s writ of habeas corpus.

Id. at 1023.

Other courts have invalidated Miranda warnings

given from memory. See, e.g., Commonwealth v. Miranda, 641 N.E.2d 139, 140-41 (Mass. Ct. App. 1994)

(finding that Miranda warnings given by the officer

from memory were unconstitutional where the officer

omitted the defendant’s right to have an attorney

during the interrogation); State v. Grey, 907 P.2d 951,

955 (Mont. 1995) (finding the officer gave “mere lip

service to the Miranda requirements” and that the officer, who was trained to recite the warnings from

memory, “chose not to use a [standard] waiver form

because he did not want to jeopardize the interrogation”); Toliver, 480 F. Supp. 2d at 1243 (finding the

Miranda warnings unconstitutional where the officer

admitted that “rather than use . . . a form or card to

read the Miranda warnings to defendant, he ‘chose to

revert back to [his] training’ and recite the warnings

from memory”); Ramirez, 739 So. 2d at 578 (finding

the defendant’s waiver invalid where the officer “minimize[d] and downplay[ed] the significance of the Miranda rights” and administered them orally).

However, many other courts have admitted

statements obtained from incomplete Miranda warnings recited from memory. See, e.g., United States v.

Lamia, 429 F.2d 373, 375 (2d Cir. 1970) (finding that

the Miranda warnings given from the officer’s

memory that omitted the suspect’s right to have an

attorney present at his interrogation was adequate);

United States v. Warren, 642 F.3d 182, 190 (3d Cir.

2011) (same); State v. Figueroa, 146 A.3d 427, 429,

432 (Me. 2016) (same); United States v. GwathneyLaw, 2016 U.S. Dist. LEXIS 185388, at *31 (W.D. Ky.

Dec. 1, 2016) (same); Commonwealth v. Woodbine,

964 N.E.2d 956, 966 (Mass. 2012) (finding the Miranda warnings given from the officer’s memory at

the interrogation were complete, though there was no

recording of them and the same officer failed to give

complete warnings during cross-examination at trial

when asked to recite them from memory).

The interrogating officer in this case was trained

to improvise her Miranda warnings, and did so, inducing a waiver following her inadequate warning.

E. Tactic 5: Failing to explain that suspects

can invoke their rights at any time.

Lastly, law enforcements officers routinely fail to

advise suspects that the Miranda rights can be exercised at any time. One study found that 20 percent of

jurisdictions do not ordinarily use this warning. 40

The interrogating officer did not clarify that Petitioner could assert his rights at any time, and the Colorado Supreme Court found that the warnings here

were constitutional.

40 Weisselberg, Mourning Miranda, supra at 1565-66.

Yet courts have recognized it is “preferable practice” to give this warning. See, e.g., State v. Sherwood, 353 A.2d 137, 139 (N.J. Super. App. Div. 1976)

(“It cannot be gainsaid that it is preferable practice

for police officials to advise a suspect that he can

terminate the questioning and assert his rights at

any time after the interrogation begins.”). In a similar vein, some courts have held that Miranda requires interrogating officers to advise suspects that

they have a right to end an interview at any time.

Umana v. State, 447 S.W.3d 346, 354 n.3 (Tex. App.

2014) (“Miranda require[s] an accused be warned of:

his right to remain silent; that any statement may be

used against him in court; his right to have a lawyer

present; his right to an appointed lawyer if he cannot

employ one; and his right to terminate the interview

at any time.”) ; People v. McCaw, 137 A.D.3d 813, 814

(N.Y. App. Div. 2016) (same); State v. Herron, 318

P.3d 281, 283 (Wash. Ct. App. 2015) (same).

Here, the interrogating officer: (1) did not tell Petitioner when he had a right to an attorney, i.e., immediately; and (2) did not tell Petitioner that he could

exercise this right at any time. The officer’s failure to

advise Petitioner that he could exercise his right at

any time made it more likely that Petitioner failed to

understand the insufficient warning “you have a

right to an attorney,” further militating in favor of

review here.

V. These tactics prevent suspects from understanding their Miranda rights.

The inevitable result of these tactics is that suspects waive their rights at extraordinarily high

rates—80 to 93 percent of the time 41—because they

fail to fully understand the rights that they are waiving. Studies show that understanding the Miranda

warnings generally requires a higher level of education than most criminal defendants have. To fully

understand the Miranda warnings, a tenth-grade

reading level is required. 42 But 70 percent of criminal inmates read at a sixth-grade level or below. 43

One study found that “only 21% of juveniles and 42%

of adults fully understood the Miranda warning that

was presented to them.” 44

When suspects cannot understand the significance or the content of their Miranda rights, the

warnings have little to none of their intended effect.

This problem is exacerbated where, as here, the defendant is mentally impaired. The alarmingly high

waiver rates militate in favor of this Court granting

review on the issue whether the warning in question—“you have a right to an attorney”—is inadequate and thus unconstitutional.

CONCLUSION

Law enforcement officers routinely issue Miranda

warnings using interrogation tactics that make the

warnings even more difficult to understand. Some of

41 Domanico, supra at 8.

42 Id. at 14.

43 D. Christopher Dearborn, “You Have the Right to an Attorney,” But Not Right Now: Combating Miranda’s Failure by

Advancing the Point of Attachment Under Article XII of the Massachusetts Declaration of Rights, 44 SUFFOLK U. L. REV. 359,

374-75 (2011).

44 Domanico, supra at 10.

the tactics, taught in training programs and manuals,

are often used to deliberately evade Miranda.

The interrogating officer in this case employed

many of these pervasive and widespread tactics.

They undermine Miranda warnings. This makes it

especially unlikely that a suspect will understand, after being told “you have a right to an attorney,” that

the suspect has a right to an attorney immediately, at

the interrogation itself. This Court should thus grant

review and find that the bare-bones Miranda warning Petitioner received is unconstitutional.

Respectfully submitted,