IBA: Interrogations - Indiana to Provide More Safeguards; SCOTUS Takes Some Away

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Bell James Bell
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By James J. Bell and Meaghan E. Klem, Bingham McHale LLP

The effective date of Rule 617 of the Indiana Rules of Evidence is only a couple of weeks away. Rule 617 provides procedural safeguards for suspects in “Custodial Interrogation in a Place of Detention.” Rule 617 prohibits the admission of a statement of a defendant “[i]n a felony prosecution, . . . unless an Electronic Recording of the statement was made, preserved, and is available at trial.” While this Rule has several exceptions, its safeguards provide assurances that evidence of a suspect’s statements will be accurate when admitted at trial.

While the Supreme Court of Indiana is adding procedural safeguards to police interrogations, during its last term, the Supreme Court of the United States chipped away at a suspect’s Miranda rights. As shown below, in Florida v. Powell, Maryland v. Shatzer, and Berghuis v. Thompkins, the Court diminished the government’s burden in complying with Miranda and made it more difficult for a defendant to invoke his Miranda rights.

In Florida v. Powell, 130 S. Ct. 1195 (2010), the defendant was arrested and, prior to being interrogated, was read the police department’s “Consent and Release” form. This form warned the defendant that he had the right to talk to a lawyer before answering any of the officers’ questions and that if he could not afford a lawyer, one would be appointed before questioning. He was further told that he had the right to assert any of those rights at any time during the interview. During the course of the interrogation, the defendant made inculpatory statements. On appeal, the defendant argued that he was not properly informed of his Miranda right to have counsel present during his questioning. However, the Supreme Court found the warning provided to the defendant to be sufficient. “In combination. the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.” Id. at 1205.

In Maryland v. Shatzer, 130 S. Ct. 1213 (2010), the Court limited the holding in Edwards v. Arizona, 101 S. Ct. 1880 (1981). Edwards created a presumption that once a suspect invoked his Miranda right to the presence of counsel, any waiver was to be deemed involuntary. Shatzer addressed a circumstance in which a suspect’s protections under Edwards expired.

In Shatzer, the defendant was imprisoned for one crime, and a detective attempted to interrogate him for a second crime. In the interrogation, the defendant was read his Miranda rights and invoked his right to have counsel present. The detective terminated the interview, and the defendant was released back into the general population of the prison. Two years later, a different detective went to the prison and again attempted to interrogate the defendant. On this occasion, the detective read the defendant his Miranda rights, and the defendant waived his right to counsel and made incriminating statements.

On appeal, the defendant argued that a mere passage of time did not terminate his Edwards protections. However, the Supreme Court held that because the defendant experienced a “break in Miranda custody” that lasted more than two weeks, suppression of the statement was not required. Id. at 1227. In reaching this decision, the Court noted that the purpose of Edwards was to prevent police from “badgering” a suspect. According to the Court, a suspect would be more likely to be coerced into making a statement if he was left in uninterrupted Miranda custody. However, when a suspect receives a “break in custody” and is allowed to return to his normal life, there is less likelihood of coercion.

Finally, in Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), the Court considered a case where the defendant was arrested and interrogated for three hours. He was advised of his Miranda rights but remained largely silent for hours. Despite remaining silent, he never explicitly stated that he wished to invoke his Miranda rights. At the end of the interrogation, the defendant answered ‘yes’ to the question of whether he had prayed for forgiveness for his crime.

Ironically, the Court held that silence was not sufficient to invoke one’s right to silence. As pointed out by Justice Sotomayor’s dissent, in order to remain silent, one must “counterintuitively” speak. Id. at 2278. The Court held that a suspect must unambiguously invoke his right to remain silent. The defendant’s response to officers after hours of questioning demonstrated an implied waiver. Because proper warnings had been given and the defendant remained silent, there was no other coercion, and his eventual response constituted a waiver.•


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.