Page:United States Reports, Volume 542.djvu/649

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610

MISSOURI v. SEIBERT

terrogation, usually after arrestees have confessed, ofﬁcers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, ofﬁcers will be able to repeat any subsequent incriminating statements later in court." Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001–Dec. 2003) (available in Clerk of Court's case ﬁle) (hereinafter Police Law Manual) (emphasis in original).^[1]

↑ Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York, 401 U.S. 222 (1971), some training programs advise ofﬁcers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e. g., Police Law Manual 83 ("There is no need to give a Miranda warning before asking questions if. . .the answers given. . .will not be required by the prosecutor during the prosecution's case in chief"); California Commission on Peace Ofﬁcer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post Invocation Questioning (broadcast July 11, 1996) ("We. . .have been encouraging you to continue to question a suspect after they've invoked their Miranda rights"); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 50–51 (2d ed. 2002) (describing the practice of "[b]eachheading" as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139 (1998) (collecting California training materials encouraging questioning "outside Miranda"). This training is reﬂected in the reported cases involving deliberate questioning after invocation of Miranda rights. See, e. g., California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1042–1044 (CA9 1999); Henry v. Kernan, 197 F.3d 1021, 1026 (CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy, 17 Cal. 4th 1184, 1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e. g., Leo, Questioning the Relevance of Miranda in the Twenty First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1123–1154 (2001).

It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e. g., C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); J. Reid & Assoc., Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question ﬁrst tactic, because they understand that Oregon v. Elstad,

[p610-1] Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York, 401 U.S. 222 (1971), some training programs advise ofﬁcers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e. g., Police Law Manual 83 ("There is no need to give a Miranda warning before asking questions if. . .the answers given. . .will not be required by the prosecutor during the prosecution's case in chief"); California Commission on Peace Ofﬁcer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post Invocation Questioning (broadcast July 11, 1996) ("We. . .have been encouraging you to continue to question a suspect after they've invoked their Miranda rights"); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 50–51 (2d ed. 2002) (describing the practice of "[b]eachheading" as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139 (1998) (collecting California training materials encouraging questioning "outside Miranda"). This training is reﬂected in the reported cases involving deliberate questioning after invocation of Miranda rights. See, e. g., California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1042–1044 (CA9 1999); Henry v. Kernan, 197 F.3d 1021, 1026 (CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy, 17 Cal. 4th 1184, 1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e. g., Leo, Questioning the Relevance of Miranda in the Twenty First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1123–1154 (2001).

It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e. g., C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); J. Reid & Assoc., Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question ﬁrst tactic, because they understand that Oregon v. Elstad,

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