Amicus Curiae Brief — Rudy Alvarez, Petitioner v. United States

No. 22-7741

IN THE

Supreme Court of the United States

RUDY ALVAREZ

v.

UNITED STATES

Petitioner,

Respondent.

On Petition for a Writ Of Certiorari to the United States

Court Of Appeals for the Ninth Circuit

BRIEF OF CRIMINAL LAW AND PROCEDURE

PROFESSORS, AS AMICI CURIAE IN SUPPORT OF

PETITIONER

James C. Dugan

Counsel of Record

WILLKIE FARR &

GALLAGHER LLP

787 Seventh Avenue

New York, NY 10019

(212) 728-8000

jdugan@willkie.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI

CURIAE ............................................................. 1

SUMMARY OF ARGUMENT.................................... 9

ARGUMENT ............................................................ 10

I.

II.

THIS CASE DEMONSTRATES THE

INAPPLICABILITY OF THE MARKS

PRINCIPLE TO SEIBERT WHERE

THERE IS NO COMMON

DENOMINATOR BETWEEN THE

RATIONALE OF THE PLURALITY

AND CONCURRING OPINION. .................... 10

A.

The Seibert Ruling Resulted in No

Clear Consensus. ..................................... 11

B.

Justice Kennedy’s Concurrence Does

Not Provide the Narrowest Grounds

for the Decision. ....................................... 13

COURTS ADOPTING JUSTICE

KENNEDY’S SEIBERT

CONCURRENCE RUN AFOUL OF

THIS COURT’S WELL-ESTABLISHED

MIRANDA PRECEDENT. ............................... 18

-i-

A.

Under This Court’s Miranda

Precedent, an Officer’s Subjective

Intent Should Not Be OutcomeDeterminative. ......................................... 19

B.

Courts Routinely Credit an Officer’s

Statements Regarding Subjective

Intent Over Objective Evidence of a

Miranda Violation. .................................. 21

III. THE HYBRID APPLICATION OF THE

SEIBERT PLURALITY AND JUSTICE

KENNEDY’S CONCURRENCE

FURTHER ERODES KEY MIRANDA

PROTECTIONS. .............................................. 23

IV. IN DECIDING WHETHER TO GRANT

CERTIORARI, THIS COURT SHOULD

CONSIDER THE ALARMINGLY HIGH

PERCENTAGE OF PEOPLE WHO ARE

SUSCEPTIBLE TO COERCIVE

INTERROGATION TECHNIQUES AND

FALSELY CONFESS. ..................................... 27

A.

Modern Police Interrogations Result

in High Rates of False Confessions. ........ 28

B.

False Confessions Carry a Heavy

Biasing Effect. .......................................... 30

CONCLUSION ......................................................... 31

- ii -

TABLE OF AUTHORITIES

Cases

Page(s)

Berkemer v. McCarty,

468 U.S. 420 (1984)..............................................19

Commonwealth v. Selby,

420 Mass. 656 (Mass. 2004) ................................29

Corley v. United States,

556 U.S. 303 (2009)..............................................28

Dickerson v. United States,

530 U.S. 428 (2000)........................................21, 28

Edwards v. United States,

923 A.2d 840 (D.C. 2007) ......................... 14, 15, 25

Fernandez v. Lee,

No. 10 Civ. 9011(ALC) (JCF), 2012

WL 4473294 (S.D.N.Y. July 12,

2012) .....................................................................16

Frazier v. Cupp,

394 U.S. 731 (1969)..............................................29

Lornitis v. State,

394 So. 2d 455 (Fla. Dist. Ct. App.

1981) .....................................................................20

Marks v. United States,

430 U.S. 188 (1977).................. 9, 10, 11, 13, 18, 25

- iii -

Miranda v. Arizona,

384 U.S. 436 (1966).............................. 1, 18, 19, 21

Missouri v. Seibert,

542 U.S. 600 (2004)..........................................9, 11

Morse v. Nevada Attorney General,

687 F. App’x 662 (9th Cir. 2017) ...................16, 17

Morse v. Nevada,

No. 55271, 2011 WL 2748846 (Nev.,

July 14, 2011) .................................................16, 17

Neri v. Hornbreak,

550 F. Supp. 2d. 1143 (C.D. Cal.

2008) ...............................................................21, 22

New York v. Quarles,

467 U.S. 649 (1984)........................................20, 21

People v. Verigan,

488 P.3d 75 (Colo. App. 2015), aff’d

on other grounds, 420 P.3d 247

(Colo. 2018) ..........................................................18

Ramirez-Marentes v. Ryan,

No. SACV-05,551 GHK (CW), 2010

WL 2902524 (C.D. Cal. 2010) ..............................22

Reyes v. Lewis,

833 F.3d 1001 (9th Cir. 2016)........................18, 24

- iv -

Rhode Island v. Innis,

446 U.S. 291 (1980)........................................20, 21

State v. Fleurie,

968 A.2d 326 (Vt. 2008) .................................21, 22

State v. Martinez,

No. 1 CA-CR 13-0107, 2014 WL

5342708 (Ariz. App., Oct. 21, 2014) ..............23, 24

State v. Medley,

787 S.E.2d 847 (S.C. Ct. App. 2016)....................16

U.S. v. Heron,

564 F.3d 779 (7th Cir. 2009)................................25

United States v. Alvarez,

No. 21-50068, 2022 WL 17958625

(9th Cir. Dec. 27, 2022) ..................................13, 14

United States v. Bailon,

60 F.4th 1032 (7th Cir. 2023) ..............................25

United States v. Capers,

627 F.3d 470 (2nd Cir. 2010) .........................13, 21

United States v. Courtney,

463 F.3d 333 (5th Cir. 2006).................... 13, 25, 26

United States v. Guillen,

995 F.3d 1095 (10th Cir. 2021)............................13

-v-

United States v. Lawton,

216 F. Supp. 3d 1281 (D. Kan. 2016) ..................16

United States v. Naranjo,

426 F.3d 221 (3d Cir. 2005) ...........................13, 19

United States v. Nuñez,

478 F.3d 663 (5th Cir. 2007)................................26

United States v. Price,

No. 04-40035-SAC, 2004 WL

2457858 (D. Kan., Oct. 22, 2004) ........................16

United States v. Stewart,

191 F. App’x 495 (7th Cir. 2006) .........................24

United States v. Stewart,

388 F.3d 1079 (7th Cir. 2004) .............................24

United States v. Stewart,

536 F.3d 714 (7th Cir. 2008)..........................19, 24

United States v. Street,

472 F.3d 1298 (11th Cir. 2006)............................13

United States v. Taing,

No. 21-50408, 2022 WL 3131809

(5th Cir. 2022) ......................................................26

United States v. Torres-Lona,

491 F.3d 750 (8th Cir. 2007)................................13

- vi -

United States v. Williams,

435 F.3d 1148 (9th Cir. 2006).................. 12, 13, 14

United States v. Williams,

681 F.3d 35 (2nd Cir. 2012) .................................21

Other Authorities

Fifth Amendment of the U.S.

Constitution ...................................................21, 26

Brandon L. Garrett, Contaminated

Confessions Revisited, 101 VA. L.

REV. 395 (2014) ....................................................28

Brandon L. Garrett, The Substance of

False Confessions, 62 STAN. L. REV.

1051 (2010) ...........................................................30

David Coffey, Why do people confess to

crimes they didn’t commit?

Livescience (2020),

https://www.livescience.com/whypeople-fasely-confess-to-crimes.html ..................30

Leading Police Consulting Group Will

No Longer Teach the Reid

Technique, Innocence Project (2017),

available at

https://innocenceproject.org/policeconsultants-drop-reid-technique/ ........................29

- vii -

Locke Houston, Miranda-in-the-Middle:

Why Justice Kennedy’s Subjective

Intent of the Officer Test in Missouri

v. Seibert is Binding and Good

Public Policy, 82 MISS. L.J. 1129

(2013) ....................................................................25

Saul M. Kassin, et al., Police-Induced

Confessions: Risk Factors and

Recommendations, 34 J. Law &

Human Behavior 7 (2010) ....................... 28, 29, 31

Saul M. Kassin, False Confessions:

Causes, Consequences, and

Implications for Reform, 1 Sage J.

112 (2014) .............................................................27

Saul M. Kassin, Why Confessions

Trump Innocence, 67 Am. Psychol.

431 (2012) .............................................................30

Steven A. Drizin & Richard A. Leo, The

Problem of False Confessions in the

Post-DNA World, 82 N.C. L. REV.

891 (2004) .......................................................28, 31

- viii -

STATEMENT OF INTEREST OF AMICI

CURIAE 1

Amici curiae are fifty-one law professors and

scholars at U.S. law schools who teach, research and

write about criminal law and criminal procedure.

They share a common interest in ensuring a proper,

practical application of this Court’s precedent

stemming from Miranda v. Arizona.

Colin Miller

Professor of Law

University of South Carolina School of

Law

Deborah Aherns

Associate Professor of Law

Seattle University School of Law

Maryam Ahranjani

Don L. & Mabel F. Dickason Professor

University of New Mexico School of Law

Peter Arnella

Professor of Law Emeritus

UCLA School of Law

1 All parties were provided proper notice of

the filing of this brief

pursuant to the Court’s Rule 37.2. Pursuant to the Court’s Rule

37.6, we note that no part of this brief was authored by counsel

for any party, and no person or entity other than amici or their

members made any monetary contribution to the preparation or

submission of this brief.

-1-

Shima Baradaran Baughman

Associate Dean of Research and Faculty

Development

University of Utah S.J. Quinney College

of Law

Lara Bazelon

Professor of Law and Director of the

Criminal & Juvenile Justice and Racial

Justice Clinics

University of San Francisco School of

Law

Valena Beety

Professor of Law and Deputy Director of

the Academy for Justice

Arizona State University Sandra Day

O'Connor College of Law

John Blume

Samuel F. Leibowitz Professor of Trial

Techniques

Cornell Law School

Michal Buchhandler-Raphael

Assistant Professor of Law

Widener Commonwealth Law School

-2-

John Burkoff

Professor Emeritus of Law

University of Pittsburgh School of Law

Geoffrey Corn

The Gary A. Kuiper Distinguished

Professor of National Security Law

South Texas College of Law Houston

Russell Covey

Professor of Law

Georgia State University College of Law

Steven Duke

Professor Emeritus of Law

Yale Law School

Jules Epstein

Edward D. Ohlbaum Professor of Law

Temple University Beasley School of

Law

Ian P. Farrell

Associate Professor of Law

The University of Denver Sturm College

of Law

Brian Gallini

Dean and Professor of Law

Willamette University College of Law

-3-

Norman Garland

Professor of Law

Southwestern Law School

Brandon Garrett

L. Neil Williams, Jr. Professor of Law

Duke University School of Law

Michael Gentithes

Associate Professor

University of Akron School of Law

Cynthia Godsoe

Professor of Law

Brooklyn Law School

Bruce Green

Louis Stein Chair of Law; Director, Stein

Center

Fordham University School of Law

Catherine Grosso

Professor of Law

Michigan State University College of

Law

Alexis J. Hoag

Assistant Professor of Law

Brooklyn Law School

-4-

Thaddeus Hoffmeister

Professor of Law

University of Dayton School of Law

Andrew Horwitz

Assistant

Dean

for

Experiential

Education

Roger Williams University School of

Law

David Jaros

Professor

University of Baltimore School of Law

Kit Kinports

Professor of Law

Penn State Law

Dan Kobil

Professor of Law

Capital University Law School

Richard Leo

Hamill Family Professor of Law and

Psychology

University San Francisco School of Law

Katherine Macfarlane

Associate Professor of Law

Southern University Law Center

-5-

Justin Marceau

Professor of Law

The University of Denver Sturm College

of Law

M. Isabel Medina

Ferris Distinguished Professor of Law

Loyola University New Orleans College

of Law

Daniel Medwed

University Distinguished Professor of

Law and Criminal Justice

Northeastern University School of Law

Michael Meltsner

Matthews

Distinguished

Univ.

Professor of Law

Northeastern University School of Law

Rachel Moran

Associate Professor of Law

University of St. Thomas School of Law

Jerry Norton

Professor Emeritus

Loyola University Chicago School of

Law

-6-

Anna Offit

Assistant Professor of Law

SMU Dedman School of Law

Timothy O’Neill

Professor Emeritus of Law

University of Illinois Chicago School of

Law

Leroy Purnell

Professor of Law

Florida A&M University College of Law

William Quigley

Emeritus Professor of Law

Loyola University New Orleans College

of Law

Deborah Ramirez

Professor of Law and Faculty CoDirector, Center for Law, Equity and

Race

Northeastern University School of Law

Ira P. Robbins

Professor of Law and Justice

American

University

Washington

College of Law

-7-

David Rudovsky

Senior Fellow

University of

School of Law

Pennsylvania

Carey

Jonathan Simon

Lance Robbins Professor of Criminal

Justice Law, Faculty Affiliate

Center for the Study of Law & Society

UC Berkeley, School of Law

Dean A. Strang

Distinguished Professor in Residence

Loyola University Chicago School of

Law

Patrice Amandla Sulton

Professorial Lecturer in Law

The George Washington University Law

School

Katharine Tinto

Clinical Professor of Law

University of California, Irvine School of

Law

Rodney Uphoff

Elwood L. Thomas Missouri Endowed

Professor Emeritus of Law

University of Missouri School of Law

-8-

Rebecca Wexler

Assistant Professor of Law

University of California,

School of Law

Berkeley,

Kenneth Williams

Professor of Law

South Texas College of Law Houston

Ellen Yaroshefsky

Associate Dean for Research and

Faculty Development

Hofstra University Maurice Deane

School of Law

SUMMARY OF ARGUMENT

Since 2004, this Court’s plurality decision in

Missouri v. Seibert, 542 U.S. 600 (2004) has been

subject to widely conflicting interpretations. A

number of lower courts, claiming to follow Marks v.

United States, 430 U.S. 188 (1977), have applied

Justice Kennedy’s concurrence, and the subjective

test set forth therein, on the mistaken premise that it

is the narrowest ground supporting the Seibert

holding, even though it is the opinion of only a single

Justice. Other courts, grappling with the lack of a

common denominator between the Seibert plurality

opinion and Justice Kennedy’s concurrence, have

chosen to apply the objective test adopted by the

-9-

plurality. Other courts have adopted a hybrid test

consisting of elements of both opinions.

The lack of any uniform rule governing the

admissibility of post-Miranda confessions has

resulted in disparate and inequitable treatment for

criminal defendants like Rudy Alvarez, who, for

whatever reason, make incriminatory statements

prior to receiving a Miranda warning. In the absence

of clear guidance, the protections afforded by

Miranda’s warning requirements have been eroded.

This Court should therefore grant the petition for

certiorari to clarify the proper test that should apply

to guard against the admission of tainted confession

evidence.

ARGUMENT

I.

THIS CASE DEMONSTRATES THE

INAPPLICABILITY OF THE MARKS

PRINCIPLE

TO

SEIBERT

WHERE

THERE IS NO COMMON DENOMINATOR

BETWEEN THE RATIONALE OF THE

PLURALITY

AND

CONCURRING

OPINION.

In Marks, this Court articulated a standard for

lower courts to follow when assessing the precedential

effect of a plurality opinion – namely, that the holding

of a plurality decision should “be viewed as th[e]

- 10 -

position taken by those [m]embers who concurred in

the judgment on the narrowest grounds.” 2

However, Seibert illustrates the limits of

Marks’ principle. Courts interpreting Seibert under

the Marks principle have been unable to agree on

which opinion represents the narrowest grounds

supporting the decision of those who concurred in the

judgment, leading to a split among the lower courts

as to the precedent established by Seibert.

A.

The Seibert Ruling Resulted in No

Clear Consensus.

The Seibert court found in favor of the appelleedefendant through the judgment of five justices: a

four-member plurality and Justice Kennedy’s solo

concurrence. There, defendant challenged the

admissibility of her post-Miranda statements where

she confessed, received Miranda warnings, and again

repeated her confession. 3 The Seibert plurality held

that, for any two-stage interview, the sufficiency of

Miranda warnings hinged upon five factors: “the

completeness and detail of the questions and answers

in the first round of interrogation, the overlapping

content of the two statements, the timing and setting

of the first and the second, the continuity of police

personnel, and the degree to which the interrogator’s

2 Marks v. United States, 430 U.S. 188, 193 (1977).

3 Missouri v. Seibert, 542 U.S. 600, 604–06 (2004).

- 11 -

questions treated the second round as continuous

with the first.” 4

Concurring only in the judgment, Justice

Kennedy found that, in a two-stage interrogation, the

admissibility of the post-Miranda warning should not

hinge upon an “objective inquiry from the perspective

of the suspect,” as the plurality concluded. 5 Rather,

admissibility of the post-warning statement should

depend upon whether an officer intentionally

withheld Miranda warnings to undermine the

protection’s efficacy. 6 When there is a finding that the

officer intentionally delayed a Miranda warning,

post-warning statements must be excluded under

Miranda unless the police took “specific, curative

steps,” such as: (1) “a substantial break in time and

circumstances between the prewarning statement

and the Miranda warning;” and (2) “an additional

warning that explains the likely inadmissibility of the

prewarning custodial statement.” 7 In determining

whether officers employed a deliberate two-step

strategy to circumvent Miranda, courts consider

evidence of the officer’s subjective state of mind, such

as the officer’s testimony. 8

4 Id. at 615.

5 Id. at 621-22 (Kennedy, J. concurring).

6 Id.

7 Id. at 622.

8 See, e.g., United States v. Williams, 435 F.3d 1148, 1158 (9th

Cir. 2006).

- 12 -

B.

Justice Kennedy’s Concurrence

Does Not Provide the Narrowest

Grounds for the Decision.

Select appellate courts, including the Ninth

Circuit in Alvarez, have applied the Marks principle

to Seibert to conclude that Justice Kennedy’s

concurrence is the controlling opinion. 9 Under Marks,

where “no single rationale explaining the result

enjoys the assent 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.” 10

The Ninth Circuit has concluded that Justice

Kennedy’s concurrence fits within the scope of the

Seibert plurality ruling on the admissibility of

E.g., United States v. Alvarez, No. 21-50068, 2022 WL

17958625, at *2 (9th Cir. Dec. 27, 2022) (“Justice Kennedy’s

concurring opinion controls.”); United States v. Guillen, 995 F.3d

1095, 1125 (10th Cir. 2021) (“There is a coherent way to apply

Marks here, which no doubt explains why most courts have

reached the same conclusion: Justice Kennedy’s concurrence in

Seibert is the controlling opinion from that case.”); United States

v. Capers, 627 F.3d 470, 476 (2nd Cir. 2010); United States v.

Street, 472 F.3d 1298, 1313 (11th Cir. 2006); United States v.

Courtney, 463 F.3d 333, 338 (5th Cir. 2006); Williams, 435 F.3d

at 1158; United States v. Naranjo, 426 F.3d 221, 231 (3d Cir.

2005); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.

2007).

10 Marks, 430 U.S. at 193 (internal quotation marks omitted).

9

- 13 -

confessions

warnings. 11

following

midstream

Miranda

Though Justice Kennedy’s concurrence is

narrower than the plurality opinion in some respects,

his opinion is also broader in other, critical

circumstances. 12

Justice Kennedy’s concurrence narrows the

Seibert plurality in instances where police officers do

not use a deliberate two-step interrogation strategy. 13

Imagine a scenario where a suspect produces a

detailed confession while seated in a police station,

and the questioning officer fails to appreciate that the

suspect is in fact in custody. The officer then

Mirandizes the suspect and elicits a substantially

similar confession post-Miranda.

Given the significant overlap of the two rounds

of interrogation, the continuous nature of the

questioning, the continuity of police personnel, and

the extent to which the second round of interrogation

11 See Williams, 435 F.3d

at 1157; Alvarez, 2022 WL 17958625,

at *2.

12 See, e.g., Edwards v. United States, 923 A.2d 840, 848, n.10

(D.C. 2007) (“As the government points out, Justice Kennedy’s

test is narrower than the plurality’s in that it would only apply

to the deliberate use of a two-step procedure, but, within that

subset of cases, it is broader in that it would not allow admission

of a suspect’s statements unless curative steps were taken even

if a court determined that the Miranda warnings could function

effectively.”).

13 See id.

- 14 -

followed the first, the suspect’s confession would

almost certainly be inadmissible under the plurality’s

objective test. 14 Meanwhile, under Justice Kennedy’s

concurrence, the confession would be admissible

because the officer did not use a deliberate two-step

interrogation strategy. 15

But Justice Kennedy’s concurrence is broader

than the Seibert plurality in cases where police

officers use a deliberate two-step interrogation

strategy. 16 Justice Kennedy found that post-warning

statements “related to the substance of pre-warning

statements must be excluded absent specific, curative

steps” where police officers use a deliberate two-step

interrogation strategy. 17 On the other hand, under

the Seibert plurality, such post-warning statements

can be admissible even without specific, curative

steps. 18 A hypothetical is again instructive here:

assume that a police officer questions a suspect – first

outside and then inside his home. Using a deliberate

two-step interrogation strategy, the officer asks an

open-ended question, obtains a general confession,

Mirandizes the suspect, and then elicits a detailed

confession. The suspect’s second confession would be

inadmissible under Justice Kennedy’s concurring

14 See Seibert, 542 U.S. at 616.

15 See Seibert, 542 U.S. at 620 (Kennedy, J., concurring) (“An

officer may not realize that a suspect is in custody and warnings

are required.”).

16 See Edwards, 923 A.2d at 848.

17 See Seibert, 542 U.S. at 621.

18 See id.

- 15 -

opinion because the officer did not take any “specific,

curative steps.” 19 However, the same post-warning

confession, under the Seibert plurality, would likely

be admitted where the questions and answers in the

first round of interrogation were neither complete nor

detailed, the two confessions did not feature much

overlap, and though there was a change in the setting

of the interrogations, neither of which took place at a

police station. 20

The disparate application of the Seibert

plurality and Justice Kennedy’s concurrence is not

merely academic conjecture. 21 This exact scenario has

been borne out in Morse v. Nevada. 22 In that case, the

Supreme Court of Nevada deemed a post-warning

admission following an earlier, pre-warning

statement admissible without citing to Justice

Kennedy’s

concurrence

or

addressing

“the

23

deliberateness question it poses.” The Morse court

deemed the Miranda warnings preceding the

19 See id.

20 See id. at 616.

21 See Morse v. Nevada Attorney General, 687 F. App’x 662, 663

(9th Cir. 2017).

22 Morse v. Nevada, No. 55271, 2011 WL 2748846 (Nev., July 14,

2011).

23 Morse, 687 F. App’x at 663; see also State v. Medley, 787 S.E.2d

847, 852–53 (S.C. Ct. App. 2016); United States v. Lawton, 216

F. Supp. 3d 1281, 1294-95 (D. Kan. 2016); Fernandez v. Lee, No.

10 Civ. 9011(ALC) (JCF), 2012 WL 4473294, at *11 (S.D.N.Y.

July 12, 2012); United States v. Price, No. 04-40035-SAC, 2004

WL 2457858, at *4–*5 (D. Kan., Oct. 22, 2004).

- 16 -

interview effective under the Seibert plurality where

the “discussion in the vehicle was informal,

conversational, and frequently veered away from the

topic of [Defendant’s] ‘mistake’” and where, “[u]pon

entering the more formal setting of the interview

room, [Defendant] would have faced a genuine choice

about whether to continue speaking.” 24 In upholding

the denial of defendant’s habeas petition, the Ninth

Circuit held that the Supreme Court of Nevada’s

opinion was not an unreasonable application of the

Seibert plurality. 25 The Ninth Circuit added that if it

were reviewing the case de novo under Justice

Kennedy’s concurrence, it “might well have” deemed

the post-warning statement inadmissible because the

officer employed neither of the curative measures

identified by Justice Kennedy. 26 Specifically, the

Ninth Circuit noted that it “might well have

concluded that the ‘break in time and circumstances

between the prewarning statement and the Miranda

warning,’ was insufficient to ensure that [Defendant]

could ‘distinguish the two contexts and appreciate

that the interrogation ha[d] taken a new turn.’” 27 The

Ninth Circuit likewise determined that at no point did

the detective “warn [Defendant] that his statements

in the police car were likely inadmissible.” 28

24 Morse, 2011 WL 2748846, at *2.

25 See id.

26 Morse, 687 F. App’x at 664.

27 Seibert, 542 U.S. at 622.

28 See id.

- 17 -

Blanket application of the Marks principle to

Seibert creates the illogical result where certain postwarning statements that may be admissible under

the Seibert plurality could be inadmissible under

Justice Kennedy’s concurrence. Yet some postwarning statements that could be admissible under

Justice Kennedy’s concurrence may be inadmissible

under the Seibert plurality. 29

II.

COURTS

ADOPTING

JUSTICE

KENNEDY’S SEIBERT CONCURRENCE

RUN AFOUL OF THIS COURT’S WELLESTABLISHED MIRANDA PRECEDENT.

This Court’s long-established precedent in

Miranda and Justice Kennedy’s Seibert concurrence

are profoundly at odds. 30 In Miranda, this Court

established that “a [Miranda] warning is a clear cut

29 See, e.g., Reyes v. Lewis, 833 F.3d 1001, 1008–09 (9th Cir.

2016) (Callahan, J., dissenting) (“There are likely to be cases

involving deliberate Miranda violations where most of the

plurality’s ‘effectiveness factors’ are met but, because no

explanation of the prewarning statement’s inadmissibility or

other ‘specific, curative step’ was taken, Justice Kennedy’s

curative measures requirement isn’t.”); People v. Verigan, 488

P.3d 75, 82 (Colo. App. 2015), aff’d on other grounds, 420 P.3d

247 (Colo. 2018) (“Because, no matter the facts of a given case,

the four-justice plurality and Justice Kennedy would apply

wholly different rules, neither the plurality’s five-factor test, nor

Justice Kennedy’s rule, nor any part of either, enjoyed the assent

of five justices.”).

30 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Seibert, 542

U.S. at 600.

- 18 -

fact . . . [designed] to insure that the individual knows

he is free to exercise the privilege [against selfincrimination].” 31 The Miranda requirement is

measured objectively and “the only relevant inquiry is

how a reasonable man in the suspect’s position would

have understood his situation.” 32 Lower courts

applying Justice Kennedy’s Seibert concurrence have

improperly held that an officer’s subjective intent can

be outcome determinative when assessing whether a

deliberate violation of Miranda has occurred in a

question-first interrogation. 33

A.

Under

This

Court’s

Miranda

Precedent, an Officer’s Subjective

Intent Should Not Be OutcomeDeterminative.

This Court’s persistent findings that an

officer’s subjective intentions should not determine

whether an individual’s Miranda rights have been

31 See Miranda, 384 U.S. at 469.

32 See Berkemer v. McCarty, 468 U.S. 420, 442 (1984).

33 See United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008)

(affirming district court finding that officer’s subjective intent

evidenced no deliberate attempt to circumvent Miranda

notwithstanding officer’s admission that he should have given

Miranda warnings earlier but chose not to); Naranjo, 223 F.

App’x at 168–69 (affirming district court finding that officer did

not deliberately delay Miranda warnings because the officer

testified that he believed Miranda warnings were not required

until the suspect was under arrest, even though the officer had

handcuffed and interrogated the suspect at length).

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violated are in direct conflict with Justice Kennedy’s

subjective-based deliberateness test in Seibert. 34

In Rhode Island v. Innis, this Court concluded

that any words or actions that the police should know

would be reasonably likely to elicit incriminating

responses would be analyzed by focusing primarily

upon the perceptions of the suspect, rather than the

intent of the police. 35 This Court reasoned that “[t]his

focus reflects the fact that the Miranda safeguards

were designed to vest a suspect in custody with an

added measure of protection against coercive police

practices, without regard to objective proof of the

underlying intent of the police.” 36 In Lornitis v. State,

the district court noted that “[w]hile Innis recognizes

that the officer’s subjective intent may tend to prove

the objective effect of his words or actions, the

prescribed inquiry is whether the officer should have

known that his words or actions were ‘reasonably

likely to elicit incriminating responses.’” 37

See, e.g., Rhode Island v. Innis, 446 U.S. 291, 301 (1980);

Lornitis v. State, 394 So. 2d 455, 458 (Fla. Dist. Ct. App. 1981);

New York v. Quarles, 467 U.S. 649, 655–56 (1984).

35 Innis, 446 U.S. at 301.

36 Id.

37 Lornitis, 394 So. 2d at 458; see also Quarles, 467 U.S. at 655–

56 (“[T]he application of the [public safety] exception [to

Miranda warnings] . . . should not . . . depend on post hoc

findings at a suppression hearing concerning the subjective

motivation of the arresting officer.”).

34

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The subversion of Miranda and its progeny

carries illogical consequences for Rudy Alvarez and

countless others similarly situated. This Court clearly

delineated the boundaries for establishing when

police conduct violates an individual’s Fifth

Amendment right against self-incrimination. 38 Yet

Justice Kennedy’s concurrence in Seibert has

muddled these boundaries by focusing the analysis on

an intent-based test that unduly favors an officer’s

subjective belief.

B.

Courts Routinely Credit an Officer’s

Statements Regarding Subjective

Intent Over Objective Evidence of a

Miranda Violation.

Most courts have held that both objective and

subjective evidence should inform whether an officer

engaged in a deliberate two-step interrogation

strategy. 39 However, in weighing objective evidence

against subjective intent, courts have credited

officers’ testimony regarding their subjective intent to

conform with Miranda requirements even where the

“objective factors considered by the Court [] tend[ed]

to weigh in favor of a finding of ‘deliberateness.’” 40 In

38 See, e.g., Miranda, 384 U.S. at 436; Dickerson v. United States,

530 U.S. 428 (2000); Innis, 446 U.S. at 291; Quarles, 467 U.S. at

655-56.

39 See, e.g., United States v. Williams, 681 F.3d 35, 41 (2nd Cir.

2012); Capers, 627 F.3d at 482.

40 Neri v. Hornbreak, 550 F. Supp. 2d. 1143, 1162 (C.D. Cal.

2008); see State v. Fleurie, 968 A.2d 326, 333 (Vt. 2008)

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Neri v. Hornbreak, the California Central District

admitted post-warning statements based on the

officers’ subjective intent even though the officers

transported the suspect to the police station, held her

for seven hours and interrogated her for an additional

hour and a half. 41 Even more, once the officers

secured a pre-warning confession, they finally issued

the Miranda warning and, within minutes, asked the

suspect to repeat her pre-warning statements. 42

In Ramirez-Marentes v. Ryan, the California

district court refused to find an intentional

subversion of Miranda where officers conducted a

three-hour interrogation and “pressed” defendant for

incriminating information. 43 If courts continue their

overreliance on an officer’s subjective testimony,

lower courts are unlikely to recognize subversions of

Miranda unless an officer explicitly testifies to doing

so. 44

(admitting defendant’s post-warning statements because it was

not “clear that the officers intended to undermine the efficacy of

Miranda warnings” notwithstanding the court’s finding that

“the initial unwarned custodia[n] interrogation was no mere

oversight or good-faith mistake.”).

41 Hornbreak, 550 F. Supp. 2d. at 1161.

42 Id.

43 Ramirez-Marentes v. Ryan, No. SACV-05,551 GHK (CW), 2010

WL 2902524, at *5–6, 20 (C.D. Cal. 2010).

44 Fleurie, 968 A.2d at 333 (citing Seibert, 542 U.S. at 605–06);

see also Hornbeak, 550 F. Supp. 2d at 1162.

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III.

THE HYBRID APPLICATION OF THE

SEIBERT PLURALITY AND JUSTICE

KENNEDY’S CONCURRENCE FURTHER

ERODES KEY MIRANDA PROTECTIONS.

Lower courts’ hybrid application of the Seibert

plurality and Justice Kennedy’s concurrence have

worsened already disparate suppression outcomes for

defendants and created an uncertain set of standards

for law enforcement officers.

The incongruous application of the Seibert

decisions has allowed rules governing interrogations

and criminal convictions to turn on geographical

boundaries. In State v. Martinez, the Arizona Court of

Appeals applied a composite test consisting of the

Seibert plurality and Justice Kennedy’s concurrence

in the case of a murder suspect who alleged that the

police engaged in a deliberate two-step interrogation

technique to sidestep Miranda. 45 The Martinez court

considered whether any curative measures were

taken as the sixth factor after the Seibert plurality’s

five-factor objective test. 46 Tellingly, the Arizona

appeals court concluded that the Seibert plurality’s

factors favored admission of the suspect’s postwarning statement while the lack of any curative

measures “weigh[ed] against admissibility.” 47 The

45 State v. Martinez, No. 1 CA-CR 13-0107, 2014 WL 5342708, at

*5–*7 (Ariz. App., Oct. 21, 2014).

46 See id.

47 See id. at *7.

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hybrid test, “taken as a whole,” still compelled the

admission of defendant’s post-warning statements. 48

In State v. Martinez, the Arizona Court of

Appeals combined the Seibert plurality factors with

the curative measures mentioned in Justice

Kennedy’s concurrence to determine whether police

officers used a deliberate two-step strategy. 49 The

court ultimately concluded that the plurality’s factors

favored admission of the suspect’s post-warning

statement, while the lack of curative measures

favored exclusion. 50 Such a hybrid test creates further

confusion and again demonstrates that post-warning

statements can be admissible under the Seibert

plurality but inadmissible under Justice Kennedy’s

concurrence. 51

In the Seventh Circuit, the appellate court

issued three opinions across four years to determine

the admissibility of a suspected bank robber’s postwarning statements. 52 In United States v. Stewart,

48 See id.

49 See id. at *5–*7.

50 See generally, id.

51 See, e.g., Lewis, 833 F.3d at 1008.

52 See United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004)

(finding district court evidence insufficient to establish whether

officers deliberately employed a two-step strategy to circumvent

Miranda) (Stewart I); United States v. Stewart, 191 F. App’x 495

(7th Cir. 2006) (directing the District Court to make specific

findings into officer intent) (Stewart II); Stewart, 536 F.3d at 714

(issuing final opinion admitting defendant’s post-warning

statements) (Stewart III).

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the district court read the Seibert plurality’s

balancing test into Justice Kennedy’s allowance for

“curative steps.” 53 The Seventh Circuit then thrice

considered the application of the Seibert plurality and

Justice Kennedy’s concurrence before ultimately

admitting defendant’s post-warning statements. 54

Though the Stewart court applied a hybrid approach,

the evident confusion within the Seventh Circuit only

worsened in United States v. Heron when the court

“conclude[d] that the Marks rule is not applicable to

Seibert.” 55

The Seventh Circuit is not alone in issuing

persistently unclear guidance. 56 The Third, Fourth,

Fifth, and Eighth Circuit courts apply varying

iterations of Justice Kennedy’s concurring opinion. 57

Decisions from the Fifth Circuit in particular vacillate

between a strict and hybrid application of Justice

Kennedy’s concurrence with the Seibert plurality

opinion. 58 In United States v. Courtney, the Fifth

53 See Stewart I, at 1090.

54 See Stewart I; Stewart II; Stewart III.

55 See U.S. v. Heron, 564 F.3d 779, 884 (7th Cir. 2009).

56 See Edwards, 923 A.2d

at 848 n.10 (“[t]he Seventh Circuit

seems to favor applying a hybrid of the two tests”); see also

United States v. Bailon, 60 F.4th 1032, 1038 (7th Cir. 2023)

(applying both tests); Locke Houston, Miranda-in-the-Middle:

Why Justice Kennedy’s Subjective Intent of the Officer Test in

Missouri v. Seibert is Binding and Good Public Policy, 82 MISS.

L. J. 1129, 1146–50 (2013).

57 See Houston, supra note 56, at 1146–50.

58 See id. at 1146–47 (“[A]s the circuit stands today, it seems to

be leaning more towards an application of Justice Kennedy’s

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Circuit considered Justice Kennedy’s concurrence

controlling as the holding of the Seibert opinion and

applied it to find that the passage of time between the

first and second interrogations constituted a “curative

measure” sufficient to allay Miranda concerns. 59

Conversely, in United States v. Nuñez, the Fifth

Circuit found no evidence of a deliberate attempt to

circumvent Miranda and instead focused upon the

voluntariness of each interrogation stage. 60

Differences in suppression outcomes carry

steep consequences for defendants and law

enforcement across the nation. If the volume of cases

analyzing the Seibert plurality and concurrence is any

indication, the two-step interrogation is a frequent

phenomenon. The discord between circuit courts and

disparate outcomes among even the same circuits

underscores the sheer unpredictability of a

fundamental constitutional right: the Fifth

Amendment protection against self-incrimination.

subjective intent of the officer test, with concern for Miranda

efficacy as an afterthought.”).

59 See United States v. Courtney, 463 F.3d 333, 338–39 (5th Cir.

2006) (finding that time elapsed between questioning proved to

be a “curative measure” where officers interviewed the suspect

three times over the course of a calendar year and that a

“reasonable person” would ultimately consider the Miranda

warnings sufficient as provided).

60 See United States v. Nuñez, 478 F.3d 663, 668–69 (5th Cir.

2007); see also United States v. Taing, No. 21-50408, 2022 WL

3131809, at *4 (5th Cir. 2022) (evaluating both the intentions of

the officers and the objective voluntariness of the confession).

- 26 -

Amici urge this Court to issue clear guidance on the

application of the Seibert decisions and to discourage

courts from further chipping away at a fundamental

constitutional safeguard.

IV.

IN DECIDING WHETHER TO GRANT

CERTIORARI, THIS COURT SHOULD

CONSIDER THE ALARMINGLY HIGH

PERCENTAGE OF PEOPLE WHO ARE

SUSCEPTIBLE

TO

COERCIVE

INTERROGATION TECHNIQUES AND

FALSELY CONFESS.

Because of the disparate applications of Seibert

by the lower courts, coercive interrogation strategies,

like the intentional question-first, warn-later

technique, continue to erode Miranda protections at a

time when, according to research and recent scientific

findings, those protections should be strengthened to

counteract such coercive tactics. 61 Though precise

percentages are unknown, studies show that 20% to

25% of convicted individuals, later exonerated, had

falsely confessed to police. 62 These outcomes occur

because the suspect is exposed to highly suggestive

See, e.g., Saul M. Kassin, False Confessions: Causes,

Consequences, and Implications for Reform, 1 SAGE J. 112

(2014).

62 See id.

61

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interrogation tactics and “acquiesces [in order to]

escape [from] a stressful situation.” 63

A.

Modern

Police

Interrogations

Result in High Rates of False

Confessions.

Even absent extreme police behavior, innocent

people confess to crimes they did not commit. 64

Modern studies recognize that confessions may be

coerced, where “custodial police interrogation, by its

very nature, isolates and pressures the individual.” 65

The manner in which an interrogation is

conducted may heighten the likelihood of a false

confession. Interrogation tactics championed by the

Reid Technique, a leading interrogation method

employed by law enforcement throughout the United

States, are especially problematic. 66 Two commonly

used elements of the Reid Technique are

“minimization,” the attempted lowering of stakes, and

“maximization,” an increased focus on the suspect’s

Saul M. Kassin, et al., Police-Induced Confessions: Risk

Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR 7,

14 (2010).

64 See, e.g., Steven A. Drizin & Richard A. Leo, The Problem of

False Confessions in the Post-DNA World, 82 N.C. L. REV. 891,

906–07 (2004).

65 Corley v. United States, 556 U.S. 303, 305 (2009) (citing

Dickerson v. United States, 530 U.S. 428, 435 (2000)).

66 Kassin, et al., supra note 63, at 12–13; see also Brandon

Garrett, Contaminated Confessions Revisited, 101 VA. L. REV.

395, 428–29 n.16 (2014).

63

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fear and guilt. 67 Minimization includes situations

where a police officer strongly asserts accusations of

guilt, stating that such guilt can already be

established through evidence obtained, and refuses to

accept a statement of denial. 68 Maximization, in

contrast, is intended to lead the suspect to believe

establishing guilt is inevitable, often through creating

a situation in which the suspect feels hopeless. 69

Trickery and deception are both examples of

maximization as well as cornerstones of many police

manuals, and long deemed legal by the United States

Supreme Court and various state court systems. 70

Tellingly, in 2017, one of the largest consulting groups

responsible for training U.S. law enforcement,

Wicklander-Zulawski & Associates, ceased all

instruction of the Reid Technique in recognition of its

disastrous effects. 71 The unexpected number of false

confessions since the early 1990s also led to the

67 See Kassin, supra note 63, at 12.

68 Id.

69 Id.

Id.; see also Frazier v. Cupp, 394 U.S. 731, 738–39 (1969);

Commonwealth v. Selby, 420 Mass. 656, 663–64 (Mass. 2004)

(finding that although trickery and deception are disfavored,

they do not necessarily lead to involuntary confessions.).

71 See Leading Police Consulting Group Will No Longer Teach the

Reid Technique, Innocence Project (2017), available at

https://innocenceproject.org/police-consultants-drop-reidtechnique/.

70

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implementation

of

mandatory

interrogations in twenty-five states. 72

videotaped

What is worse, false confessions are likely to

occur primarily in “more serious cases, especially

homicides.” 73 In a study of 125 DNA exonerations in

cases with false confessions, the “overwhelming

majority,” or 81%, occurred in murder cases. 74

B.

False Confessions Carry a Heavy

Biasing Effect.

A false confession, even once retracted or

proven to result from police coercion, can alter the

entire course of an investigation and trial. In the

investigation phase, “[o]nce a suspect confesses, police

often close the investigation, deem the case solved,

and overlook exculpatory information – even if the

confession is internally inconsistent, contradicted by

external evidence, or the product of coercive

interrogation.” 75 At the trial stage, jurors give

disproportionate weight to confession evidence and

fail to adequately discount retracted false confessions

72 See David Coffey, Why do people confess to crimes they didn’t

commit?,

Livescience

(2020),

available

at

https://www.livescience.com/why-people-fasely-confess-tocrimes.html.

73 Brandon L. Garrett, The Substance of False Confessions, 62

STAN. L. REV. 1051, 1065 (2010).

74 Id. at 1066.

75 Saul M. Kassin, Why Confessions Trump Innocence, 67 AM.

PSYCHOL. 431, 437 (2012) (emphasis added).

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or those that have been shown to result from

coercion. 76 False confession evidence is even powerful

enough to overcome highly probative evidence,

including exculpatory DNA results. 77

CONCLUSION

Amici respectfully request that the Petition

for Certiorari be granted.

Respectfully submitted,

James C. Dugan

Counsel of Record

WILLKIE FARR & GALLAGHER LLP

787 Seventh Avenue

New York, NY 10019

(212) 728-8000

jdugan@willkie.com

July 10, 2023

Counsel for Amici

76 See id. at 433–34; see also Steven A. Drizin, supra note 64 at

961–62 (2004) (study of 125 proven false confession exonerations

from the post-Miranda era).

77 Saul M. Kassin, et al., Police-Induced Confessions: Risk

Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR

4, 23 (2010).

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