More on Interrogations — Court-Martial Trial Practice Blog

On 3 February, the Court of Appeals for the Armed Forces will hear oral argument in United States v. Delarosa, No. 08-0390/NA [2008 CCA LEXIS 4, N.M. Ct. Crim. App. January 10, 2008)(unpub. opinion)]. The pending C.A.A.F. argument is somewhat interesting in light of the pending Supreme Court argument in Kansas v. Ventris, which we looked at the other day.

Whether there is a violation of Miranda by approaching an individual after invoking his rights depends on which right was invoked, who initiates communication, the subject matter of the communication, when the communication takes place, where the communication takes place, and the time between invocation of the right and the second interview.

United States v. Watkins, 34 M.J. at 345.

Watkins is a "reinitiation" case. In Watkins the CID had honored the first invocation to silence and released him. Watkins did not ask for a lawyer. About 2.5 hours later CID went to Watkins' house. While there, in a non-custodial setting, the CID asked if he'd now be willing to to take a polygraph (it's the old ask for a polygraph and see what happens trick. The idea is to use the request for a polygraph as a lead in. Generally the suspect then wants to talk about the polygraph, what it will do, how it works, and before you know it he's talking and then he's confessing. The courts don't view this a "interrogating" the suspect.). Watkins asked for counsel and the CID agents stopped their questions. But then, Watkins asked two questions (should I get a civilian lawyer, and how much time will I get), to which the CID agent responded. Watkins then made a spontaneous statement. C.A.A.F. agreed with the military judge that Watkins had reinitiated the interview with histwo questions. (In Ventris the issue is the right to counsel, but in Delarosa the issue is the right to silence.)

The granted issue in Delarosa is:

[W]hether (1) the lower court erred in adopting a test to determine whether Appellant’s assertion of his right to remain silent was scrupulously honored that differs from the tests set forth by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96 (1975) and United States v. Watkins, 34 M.J. 344 (C.M.A. 1992); and (2) whether the lower court erred in holding that the military judge correctly denied the defense motion to suppress Appellant’s confession made to the detectives at the Norfolk, Virginia, police department.

Delarosa is also a "reinitiation" case. But unlike Mosley, the reinitiation is about the same crime. The Syllabus & Holding in Mosley is:

Respondent, who had been arrested in connection with certain robberies and advised by a detective in accordance with Miranda v. Arizona, 384 U. S. 436, that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgment of the Miranda warnings, declined to discuss the robberies, whereupon the detective ceased the interrogation.More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder, which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective's questions.
Held: The admission in evidence of respondent's incriminating statement did not violate Miranda principles. Respondent's right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent.