Are there limits to police interrogation techniques?

Law enforcement has a strong interest in obtaining a suspect's statement before the filing of criminal charges. When a suspect requests an attorney, or chooses to remain silent, the police investigation becomes limited in scope and the accused gains a tactical advantage in trial. As a result, investigators can be very tenacious in trying to get the person to speak.

A recent Miranda case appears to put some limits on interrogation techniques by the police. On Nov. 4, the Fourth Appellate District of the California Court of Appeals handed down its opinion reversing the first-degree murder conviction of Ismael Avalos and separately vacating his now unlawful street terrorism conviction based on a retroactive statutory change. (See People v. Avalos (Ct. App. Case No. G059107.) As relevant here, Avalos' murder conviction was invalidated based on a violation of his Miranda right to be free from police questioning absent a voluntary, knowing, and intelligent waiver of the right to remain silent and to have counsel present before questioning.

Avalos was an 18-year-old high school student when he was arrested on a murder charge and interrogated at the police station. During the interview, a forensic technician removed Avalos' shirt, pants, socks, and shoes for testing purposes, leaving Avalos dressed only in a paper gown. The initial questioning was extensive, but Avalos did not incriminate himself. Finally, around the fifth hour, Avalos stated that he wanted to talk to a lawyer.

The detective questioning him told Avalos that he respected his right to counsel but would come back at any hour of the day or night should Avalos change his mind and decide to resume their conversation. The detective told Avalos she would be available because she cared about him "getting [his] story the right way out." Avalos was placed in a cold holding cell overnight, still dressed only in the paper gown.

In the morning, he told a jailer that he wished to speak with the detective again. Avalos first asked for socks, noting how cold he was. He then asked the detective, "Whatever I tell my lawyer, he's going to tell you the same thing, right?" Avalos then provided a second Miranda waiver and went on to incriminate himself by admitting to the shooting, though he claimed self-defense. The statement was introduced at trial and Avalos was convicted.

In finding a Miranda violation, the Court of Appeals found that once Avalos invoked his right to counsel, the detective was required to scrupulously honor that invocation and cease any effort to convince Avalos to communicate with her further. The statement encouraging Avalos to speak with her again to "get his story out right," was therefore an impermissible tactic. Furthermore, based on the totality of the circumstances, Avalos' second-day Miranda waiver was invalid. He was 18 years-old, had never been arrested before, was cold after having his clothes removed, and demonstrated a lack of awareness of the role of an attorney through his statements about his lawyer repeating his statements to law enforcement. Based on all these factors, the waiver of the right to counsel was not voluntary, knowing, and intelligent.

The Court of Appeals could not conclude that the wrongful introduction of Avalos' statement was harmless beyond a reasonable doubt, and accordingly reversed the first-degree murder conviction. However, because it explicitly declined to find that there was insufficient evidence to support the conviction, the government is free to re-try Avalos on the same charge, but without relying on his confession.

On the other hand, readers should note that not every post-Miranda invocation statement obtained by law enforcement from a suspect is per see involuntary and therefore inadmissible for any purpose. That was the argument advanced by the defendant in Pollard v. Galaza, 290 F.3d 1030 (9th Cir. 2002). Pollard was convicted in California state court of second-degree murder and trespassing and came to the Ninth Circuit Court of Appeals on a writ of habeas corpus.

About three hours after Pollard's arrest, he was taken to an interview room where a detective read him his Miranda rights. Pollard stated that he did not wish to speak to the detective. After a brief pause, however, Pollard initiated further conversation about the crime under investigation. Pollard made various inconsistent statements about his activities on the night of the murder which were later used at trial to impeach his testimony.

On appeal, the parties agreed that the detective's further questioning of Pollard after his Miranda invocation was a straightforward violation of Miranda and therefore the government would not have been permitted to use Pollard's subsequent statements in its case-in-chief. The dispute was rather whether the statements were voluntary and could therefore be used as impeachment notwithstanding the Miranda violation. Pollard urged the Ninth Circuit to adopt a standard that a statement is per see involuntary if it is procured through a deliberate Miranda violation by police. The Ninth Circuit rejected this standard, and instead applied much of the same totality of the circumstances voluntariness analysis that applied in Avalos case.

Here, the Ninth Circuit found that Pollard was not sweating, nervous, or showing any obvious signs of discomfort. He had initiated the post-Miranda conversation, not the detective. The detective was not armed, and Pollard was not shackled. Taken together, the circumstances of Pollard's questioning were not unduly coercive. The court ruled that his statements were therefore voluntary, and admissible for impeachment purposes.

In sum, the cases demonstrate that reviewing courts determine when a custodial statement is "voluntary" and thus admissible, based on the totality of the circumstances. Our law firm has handled numerous cases with material Miranda issues. We have litigated murder cases where officers lied to or misled suspects, browbeat younger defendants, and invited "witnesses" for interviews who were then interrogated as suspects. In each of these examples, excluding the client's statements was very challenging for the trial court despite possible police overreaching. As the Avalos case demonstrates, it is our role as defense counsel to make a complete record for the reviewing court to possibly reach a different opinion by excluding the statement as involuntary and granting a new trial.