Maryland v. Shatzer: Miranda Has An Expiration Date

Maryland v. Shatzer, no. 08-680 (Feb. 24, 2010)

A fairly interesting decision form the Supremes in Washington came out yesterday that's worth some comment-particularly to line officers conducting interrogations of suspects who've previously been Mirandized for some purpose or other. It answers the question "When does a previously given Miranda warning expire?"

The answer's clear-it's 14 days.

In 2003, Shatzer was in prison on a child sex abuse conviction. A social worker was investigating allegations that Shatzer had also sexually abused his three year old son. A detective from the Hagerstown Police Department went to MCI-Hagerstown to interview Shatzer. Shatzer executed a written waiver of his Miranda rights. When the detective explained what he was there for, Shatzer invoked his Miranda rights and declined to answer questions. Shatzer was released into the general inmate population and the investigation went cold.

2-1/2 years later the same social worker referred more specific allegations to the HPD, and Shatzer's son, now eight years old, gave more specific details about the abuse. Shatzer was interviewed again at Roxbury Correctional Institute, and after being Mirandized again, Shatzer admitted details of the sexual abuse of his son. Shatzer consented to a polygraph, failed it, incriminated himself and then invoked his right to counsel.

Charged with sex abuse of his son Shatzer moved to suppress his admissions pursuant to Edwards v. Arizona which held that once a defendant has invoked Miranda, he cannot be questioned thereafter unless he himself initiates further conversation, communication or exchanges with police. Shatzer thus presented an extreme application of the Edwards rule since the time that had elapsed between the first assertion of Miranda and the subsequent admissions was nearly three years.

Edwards has been considered a hard and fast rule, particularly under Arizona v. Roberson and Minnick v. Mississippi. However, one can see the evil inherent in erecting a permanent shield against any subsequent inquiry no matter how remote in time.

Shatzer was convicted on a trial on the minutes, but the Maryland Court of Appeals reversed, holding that the mere passage of time did not end Edwards protections, and release back into the general population did not constitute a break in custody.

The Supreme Court reversed the Maryland Court of Appeals, holding that a fourteen day break in custody rule was time enough to allow the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effect. In addition, the Supreme Court held that a release back into the general inmate population constituted a release from custody for Miranda purposes.

The First Thing We Do, We Kill All The Witnesses Part III: Drew's Law

One of the most critical but least understood legal doctrines we studied in law school was the application of the hearsay rule, shot full of more holes than a cheap swiss cheese as it is.

The rule of course is that an out of court statement offered to prove the truth of the matter asserted is inadmissible, the reason being that the defendant does not enjoy his sixth amendment right to confront the witness. There are other reasons for the rule that have to do with the reliability of third party statements, the purpose for which the statements were made, and the purpose for which the statements are offered at trial-none of which are important here.

The rule's an old one-Dean Wigmore , writing in 1913, tells us that the purposes of the rule are that the defendant is deprived of his right to confrontation and cross examination by the admission of the statements.* Sir William Blackstone relates the hearsay rule to the issue of the best evidence, and that of course is that only the best evidence available should be allowed.** In Rex. v. Woodcock, 29 Geo. 3 (1789) the principle of the general inadmissibility of hearsay is discussed in the case of a woman found stabbed who was examined under oath by a magistrate and died some eight hours later.***

We already know in our own cases-particularly those of the infamous Bentley brothers- that a key distinction to be made is whether the statement made by the decedent is testimonial or otherwise, and that distinction pretty much rules out all formal statements to police or proceedings where the intent is to gather information for trial.

We've recently heard some news reports concerning Drew Peterson-you know, that wild and crazy guy over in Illinois whose wives have a bad habit of assuming room temperature.

It seems that the state of Illinois, in response to Peterson's antics enacted Pub. Act 095-1004-the full text of which is reprinted below. What the statute does is codify the finding of the Supreme Court in Giles v. California which holds that the California evidentiary forfeiture by wrongdoing doctrine (which allows the introduction of hearsay evidence) could only be applied if it was the killer's specific intent to procure the decedent's unavailability for trial.

The Illinois statute seems to make some incremental modifications to the Giles holding, stating that intent to procure the unavailability of the witness need not be the sole motivating factor in the murder that procured the unavailability of the witness. That's interesting. It also establishes a hearing procedure in which the proponent of the statements need only prove their admissibility under the rule by a preponderance of the evidence-a very liberal standard to be sure. Thirdly, it states that the murder of the declarant need not be the matter upon which the defendant is on trial.

Where this all gets interesting is that a hearing's just been held in the case of the very same Drew Peterson, and there's an issue of retroactive application of this statute to a case that started before it was passed.

Watch this one-it's going to go all the way to the Supremes.

Public Act 095-1004

SB2718 Re-Enrolled LRB095 05870 RLC 25961 b

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is

amended by adding Section 115-10.6 as follows:

(725 ILCS 5/115-10.6 new)

Sec. 115-10.6. Hearsay exception for intentional murder of

a witness.

(a) A statement is not rendered inadmissible by the hearsay

rule if it is offered against a party that has killed the

declarant in violation of clauses (a)(1) and (a)(2) of Section

9-1 of the Criminal Code of 1961 intending to procure the

unavailability of the declarant as a witness in a criminal or

civil proceeding.

(b) While intent to procure the unavailability of the

witness is a necessary element for the introduction of the

statements, it need not be the sole motivation behind the

murder which procured the unavailability of the declarant as a

witness.

(c) The murder of the declarant may, but need not, be the

subject of the trial at which the statement is being offered.

If the murder of the declarant is not the subject of the trial

at which the statement is being offered, the murder need not

have ever been prosecuted.

(d) The proponent of the statements shall give the adverse

party reasonable written notice of its intention to offer the

statements and the substance of the particulars of each

statement of the declarant. For purposes of this Section,

identifying the location of the statements in tendered

discovery shall be sufficient to satisfy the substance of the

particulars of the statement.

(e) The admissibility of the statements shall be determined

by the court at a pretrial hearing. At the hearing, the

proponent of the statement bears the burden of establishing 3

criteria by a preponderance of the evidence:

(1) first, that the adverse party murdered the

declarant and that the murder was intended to cause the

unavailability of the declarant as a witness;

(2) second, that the time, content, and circumstances

of the statements provide sufficient safeguards of

reliability;

(3) third, the interests of justice will best be served

by admission of the statement into evidence.

(f) The court shall make specific findings as to each of

these criteria on the record before ruling on the admissibility

of said statements.

(g) This Section in no way precludes or changes the

application of the existing common law doctrine of forfeiture

by wrongdoing.

Section 99. Effective date. This Act takes effect upon

becoming law.

*John Henry Wigmore, Select Cases on the Law of Evidence (1913) at 542.

** Sir William Blackstone, Commentaries on the Common Law of England, Book III 487 (William Jones Ed. 1916)

***Rex v. Woodcock, 29 Geo. 3 (1789) (cited in MacNally, Rules of Evidence on Pleas of the Crown (1802) at 298).

Is This What Gun Control's All About?

Word reached us today of the death of an Atlantic City, New Jersey police officer.

At about 1:30 am while sitting in his car, Officer Kevin Wilkins was attempting to install a rubber grip on his service weapon. He removed the magazine but apparently did not clear the breech. The weapon discharged and the round struck Officer Wilkins in the face, killing him.

Folks, gun control starts with making absolutely, positively, affirmatively and conclusively with out any doubt sure that that weapon is safe before you point it at anything, unless you intend to shoot what you're pointing it at.

That was good advice when I got my marksmanship merit badge as a member of troop 74, it was good advice when I took that hunter safety class all those years ago, it was good advice when I inadvertently discharged a round downrange from my M1 carbine out in the California desert and it is good advice today. Respect the weapon. Don't stand in the line of fire.

It is also worth noting that 1:30 in the morning sitting in your car is not a good place or a good time to be attempting anything of a technical nature that can be put off til daytime.

Atlantic City Police Department Officer Kevin B. Wilkins

Worth County Confidential: It Pays To Know Your Pals

State v. Pals, no. 09-0064 (Iowa Ct. App. Feb. 10, 2010)

This case presents the ever pleasing question of what amounts to reasonable cause to stop a vehicle in a new and unique way.

A Worth County deputy received word of two dogs that were running loose and causing damage in beautiful downtown Joice, Iowa, population 230. On arrival the deputy observed Pals' truck cruising the neighborhood as if looking for dogs. One dog, a Brittany spaniel was observed in the back of the truck. After ascertaining that the offending canines belonged to Pals, the deputy departed for Rice Lake.

On the way the deputy again observed Pals' truck going the opposite direction and pulled him over to talk about the dogs. The3 deputy had a discussion with dispatch about whether to ticket Pals for the city ordinance violation and the answer derived was "Well, if he's not being a jerk, give him a warning and move on."

A discussion ensued in the patrol vehicle over whether Pals had insurance and when that was concluded the deputy asked Pals if he could look in the vehicle, to which Pals consented. A look around the cab revealed marijuana, and Pals was arrested.

Pals filed a motion to suppress the evidence which was deniedn and Pals was convicted of possession. This appeal followed.

In a brief that was at a minimum 32 pages long, Pals argued that the initial stop was improper, but the court of appeals disagreed because the deputy had reason to think the violation of the city ordinance was ongoing because he had not seen both dogs in the back of Pals' truck.

That supplied probable cause to stop the vehicle even though the underlying offense was a mere civil infraction.

Pals also argued that his consent to the search was not voluntary because he had been effectively seized and was sitting in the squad car at the time. The court opined that the encounter was brief, cordial, and no coercion or threat could be found in it that would support the argument. Pals argued that the consensual search amounted to exploitation of prior illegal conduct on the part of police.

Pals lastly argued that because there was no reason to ask to search the truck, such a search was illegal. That argument foundered, because contrary to his argument, law enforcement investigations broaden their scope all the time. The deputy was within his rights to ask to search the truck under existing precedent.