Cold Case Interrogations

In many instances, the suspect in a cold case turns out to be someone who is serving time for another crime. What are the considerations for conducting custodial interrogation of such a prisoner, insofar as Miranda and the Sixth Amendment right to counsel are concerned?

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Solving old cases with new evidence is nothing new. Cops have been doing it for years—with fingerprints, new witnesses, or just lucky breaks. But the advent of computerized print matching and DNA evidence, together with the growth of print and DNA databases, has dramatically increased the potential for solving cold cases.

In many instances, the suspect in the cold case turns out to be someone who is serving time for another crime. What are the considerations for conducting custodial interrogation of such a prisoner, insofar as Miranda and the Sixth Amendment right to counsel are concerned?

The Sixth Amendment

Let's take the easy one first.

An accused person has a constitutional right to the assistance of counsel for his defense on any case as to which "adversary judicial proceedings" have commenced. If this right has "attached" (such as by indictment or first court appearance) and has been "asserted" by the defendant (such as by hiring or requesting an attorney, or accepting appointment of counsel), officers may no longer obtain an admissible statement as to that particular offense through police-initiated questioning, unless the defendant's counsel is present. (Massiah v. U.S.)

The Sixth Amendment right to counsel is "offense-specific," meaning that it only applies to the specific crime for which the person has already been indicted or arraigned (or made an initial court appearance). (Texas v. Cobb) This means that even if the suspect in the cold case has an attorney on his prior case, there will be no violation of his Sixth Amendment rights by police interrogations relating to an uncharged cold case. Since the Sixth Amendment has not yet attached, it cannot be violated. (Kirby v. Illinois)


Unfortunately, Miranda isn't quite so straightforward.

The Miranda rules on reinitiation of questioning are among the most complicated rules of criminal procedure. They require that an officer intending to conduct custodial interrogation of someone who has remained in continuous custody become familiar with the suspect's "Miranda history" before attempting interrogation.

The Supreme Court has said that it is incumbent on officers to examine prior reports to learn whether a previous officer Mirandized the suspect and, if so, whether the suspect waived, or invoked the right to silence, or invoked the right to counsel.

"Custodial interrogation must be conducted pursuant to established procedures that must enable an officer who proposes to initiate an interrogation to determine whether the suspect has requested counsel. Whether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists." (Arizona v. Roberson)

Prior Waiver

If arrest reports show that the suspect waived Miranda when he was arrested on the prior offense for which he's now serving time, investigators on the cold case can simply give a new Miranda warning and, if the suspect waives, ask him questions about the cold case. (Mathis v. U.S.) His answers would then be admissible on the cold-case prosecution.

Prior Invocation of Silence

When the suspect was arrested on the offense that landed him in jail or prison, he may have invoked only his right to silence as to that case, without affirmatively requesting counsel. If so, officers investigating the cold case are free to administer Miranda warnings and seek a waiver with respect to the different case they are investigating. (Michigan v. Mosley)

Therefore, if the crime and arrest reports of the prior offense document either a waiver or an invocation of silence, cold-case officers are free to approach the suspect in custody and attempt to obtain a waiver to discuss the cold case. Any statements obtained are admissible under Miranda.

Prior Invocation of Counsel

Here's the joker.

In Edwards v. Arizona, the U.S. Supreme Court ruled that once a custodial suspect has invoked the Miranda right to counsel, he is not subject to further police-initiated questioning on that case unless and until counsel is provided. The court carried this rule one step further in Arizona v. Roberson, ruling that a suspect who has requested counsel may not be questioned as to any case unless counsel is present.

Years later, in Minnick v. Mississippi, the court held that even if a requested attorney had been provided on the first case, the suspect could not be questioned on any other case unless the attorney was present. In dissent, Justice Scalia pointed out that under this ruling, a suspect who invoked counsel and then remained in continuous custody could not be approached "three months, three years, or even three decades later" to seek a waiver and a statement on any case, unless counsel were present.

Scalia's worry was about to be tested in a 1993 case called U.S. v. Green. Lowell Green was arrested for drugs and invoked his Miranda right to counsel. He was tried, convicted, and sentenced to incarceration without having been released (a release erases an invocation and starts Miranda all over again upon rearrest, per McNeil v. Wisconsin). Three months later, different officers investigating an unrelated murder visited Green in jail and obtained a Miranda waiver and a confession.

At his murder trial, Green was allowed to suppress his confession, on grounds that the officers' questioning violated the Edwards-Roberson-Minnick rule prohibiting any subsequent questioning after a suspect in continuous custody has invoked his right to counsel under Miranda. An appeal was taken to the U.S. Supreme Court, but while the case was pending, Green died in custody. The court dismissed the case as moot, and it has never taken another case to test whether the Minnick ruling indefinitely prevents police-initiated interrogation of a suspect who has remained in continuous custody since invoking his Miranda right to counsel.

As the cases now stand, there is no outside limit on the duration of an invocation of the Miranda right to counsel (assuming the suspect has remained in custody). This means that cold-case investigators who are thinking about trying to question a prisoner must first examine the arrest reports of the case for which the suspect is serving time and learn whether the suspect previously invoked his right to counsel when Mirandized. If so, police-initiated questioning cannot produce an admissible confession in the cold case.

For the Future...

The Edwards-Roberson-Minnick holdings also mean that officers who are not already doing so must begin to document whether or not an arrestee was Mirandized and, if so, whether he or she waived and talked, or invoked the right to silence, or invoked the right to counsel. Years from now, an investigator working a cold case with a DNA hit will need to be able to read the prior reports and tell whether it will be a waste of time to attempt an interrogation of a prisoner-suspect. It is not enough to merely recite in a report that "The suspect invoked Miranda." Reports must show which part of Miranda—silence or counsel—was invoked.


Prior Waiver—reinitiation OK with warning and waiver

Prior Invocation of Silence—reinitiation OK as to different offense, with warning and waiver

Prior Invocation of Counsel—no reinitiation as to any case during continuous custody

Devallis Rutledge, a former police officer and veteran prosecutor, now serves as Special Counsel to the Los Angeles County District Attorney. His latest book is "Criminal Investigations and Evidence."

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