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1.1 Introduction and Overview

(a) Definitions and The Need for Confessions
(b) The Basic Law
(c) The Extent of Police Abuse
(d) The Supreme Court's Response

(a) The Common Law Rule
(b) Due Process and the "Complex of Values"
(c) Relevant Factors in the "Totality of Circumstances"

(a) "Custody" vs. "Focus"
(b) Purpose of Custody
(c) Subjective vs. Objective Approach
(d) Presence at Station
(e) Presence Elsewhere
(f) Other Considerations

(a) The "Functional Equivalent" Test
(b) Questioning
(c) Other "Words or Actions"
(d) "Volunteered" Statements and Follow-Up Questioning

(a) Content
(b) Time and Frequency
(c) Manner; Proof
(d) Additional Admonitions

(a) Express or Implied
(b) Competence of the Defendant
(c) Conduct of the Police
(d) Conduct of the Defendant: Implied Waiver
(e) Conduct of the Defendant: Implied Assertion of Rights
(f) Conduct of the Defendant: "Qualified" or Limited Waiver
(g) Waiver After Assertion of Rights

(a) Questioning About Minor Offense
(b) Questioning by Private Citizen
(c) Questioning by Non-police Official
(d) Other Special Concerns
(e) Proceedings at Which Confession Offered

(a) When the Right to Counsel Begins
(b) Waiver of Counsel
(c) Infringement of the Right

(a) Definitions and The Need for Confessions

Confession. A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act and the share and participation which he had in it."

Black's Law Dictionary, 269 (5^th Ed. 1979).

"Custody. The care and control of a thing or person . . . . Also the detainer of a man's person by virtue of lawful process or authority.

The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession."

Black's Law Dictionary, 347 (5^th Ed. 1979).

"Custodial interrogation. Custodial interrogation requiring that defendant be advised of his constitutional rights, means questioning initiated by law enforcement officers after person has been taken into custody or otherwise deprived of his freedom in any significant way; custody can occur without formality of arrest and in areas other than police station. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232. See Miranda Rule."

Black's Law Dictionary, 347 (5^th Ed. 1979).

"Interrogation. In criminal law, process of questions propounded by police to person arrested or suspected to seek solution of crime. Such person is entitled to be informed of his rights, including right to have counsel present, and the consequences of his answers. If the police fail or neglect to give these warnings, the questions and answers are not admissible in evidence a the trial or hearing of the arrested person. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also Confession; Custodial Interrogation; Miranda Rule."

Black's Law Dictionary, 734 (5^th Ed. 1979).

"Miranda Rule. Prior to any custodial interrogation (that is, questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his freedom in any significant way) the person must be warned: 1. That he has a right to remain silent; 2. That any statement he does make may be used as evidence against him; 3. That he has a right to the presence of an attorney; 4. That if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.

Unless and until these warnings or a waiver of these rights are demonstrated at the trial, no evidence obtained in the interrogation may be used against the accused. Miranda v. Arizona, 384 U.S. 436, 444, 478, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Black's Law Dictionary, 900 (5^th Ed. 1979).

(1) Confessions and incriminating statements are often the most critical evidence available to prove a defendant's guilt. Critical cases may be won by the prosecution on the strength of a confession alone; they may be lost, however, if police unlawfully obtain a statement. Today's officers must be familiar with the legal aspects of interviews and interrogations.

(b) The Basic Law

(1) The Fifth and Sixth Amendments

    The United States Constitution establishes the legal foundation controlling police interrogation. The Fifth Amendment guarantees the suspect's right against self-incrimination. The Sixth Amendment expressly guarantees his right to counsel in a criminal proceeding.

(A) Fifth Amendment - The Right to Remain Silent

    The Fifth Amendment states, in part, that no "person [shall] be compelled in any Criminal Case to be a witness against himself...." This clause means what it says--the police and courts cannot force a suspect to say anything that may incriminate him. The Supreme Court interprets the Amendment as requiring police to advise suspects of their right to remain silent, the right to counsel, and other critical rights, before engaging in "custodial interrogation." The famous, and often misunderstood Miranda case is based on this Amendment.

(B) Sixth .Amendment-The Right to Counsel

    The Sixth Amendment guarantees the criminal defendant's right to "Assistance Of Counsel for his defence." This right to counsel is triggered when adversarial judicial proceedings have commenced--in Kansas, when the complaint is filed.

    Under either Amendment, police may not interrogate a suspect after she asserts her "counsel right" unless she initiates a subsequent interview, or her counsel is present

(C) Failure to comply with Miranda rules leads to an obvious result: the suspect's confession, and any evidence which is a product of that confession, is inadmissible at trial. Many times, application of the exclusionary rule results in the suspect going free, a result judges do not like but which is necessary to prevent the erosion of Constitutional rights.

    I write this concurring opinion to express my concern with a growing failure of law enforcement officers to understand and apply the Miranda rule and rules relating to search and seizure and to arrest.

    I realize that police work is arduous and hazardous. I have the highest respect for those who risk their lives in that endeavor. However, I consider it inexcusable that a prosecution is lost because the police failed to consider and apply Miranda, the rules relating to arrest, and/or Fourth Amendment rights against unreasonable searches and seizures.

    There may be some instances in which a failure to comply with those rules is understandable. This is not such a case. This case is lost because the police did not comply with the Miranda rules. These rules are rather simple and have been in effect for more than 30 years. They should not be overlooked.

    It is possible that more educational seminars need to be held for law enforcement officers. The Fourth and Fifth Amendments to the Constitution of the United States are not going to go away, and neither is Miranda.

    I hope my opinion is taken as constructive criticism. I am no more anxious than the police to short circuit the criminal process by suppressing evidence needed to convict. The suppression in this case and others can be avoided by conscientious attention to the rules I have discussed. These are rules that originated in the United States Supreme Court and have been adopted in Kansas by our Supreme Court. They are not complicated or difficult to follow. I implore law enforcement officers all across the state to double their efforts to apply the law to each arrest. If this is done, the guilt or innocence of each defendant will be decided on all of the evidence. Police work which fails to take the constitutional rights of each defendant into account simply opens the door for the defendant to walk free.

(D) Kansas Law

    Section 10 of the Bill of Rights of the Kansas Constitution guarantees that "In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel....No person shall be a witness against himself."

K.S.A. 60-425, part of the Kansas Rules of Evidence, states, in part, that generally

[E]very natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person.

(2) The Fifth Amendment and Miranda

    The Fifth Amendment guarantees the right against self-incrimination-the right to remain silent in the face of police questioning. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the Supreme Court held that police must advise suspects of their rights before "custodial interrogation." If the suspect waive those rights, questioning may proceed; if they invoke those rights, questioning must cease, and may resume only under limited circumstances.

    Miranda targets coercive police tactics, especially those that occur in the stationhouse environment, and protects suspects by requiring police to advise them of their constitutional rights.

(c) The Extent of Police Abuse

    Police interrogation "still takes place in privacy" which "results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

    This secrecy leads to ever-present conflicting accounts of what takes place in interrogations rooms. In Miranda, the prosecution conceded that modern interrogation techniques focus on applying psychological pressure to obtain confessions rather than physical blows. Because of the court's lack of knowledge of what really happened, and outlandish or shocking tactics by police interrogators, the Supreme Court formulated prophylactic rules designed to ensure confessions were knowing and voluntary.

(d) The Supreme Court's Response

    Any person "deprived of his freedom of action in any significant way" cannot be questioned unless he waived his rights after being advised (1) "that he has a right to remain silent"; (2) "that anything said can and will be used against the individual in court"; (3) "that he has the right to consult with a lawyer and to have the lawyer with him during interrogation"; and (4) "that if he is indigent a lawyer will be appointed to represent him." Miranda, 384 U.S. at ___.

1.2 The "Voluntariness" Test

(a) The Common Law Rule

    Historically, all confessions were admissible at trial, the thought being that a suspect will not confess unless he is truly guilty. Thus, even confessions resulting from torture were admissible. This practice begin to change prior to the middle of the 18^th century when English judges began requiring proof that statements were made "voluntarily" and without improper inducements.

(b) Due Process and the "Complex of Values"

    In 1936, the Supreme Court first barred a confession from being used in state courts. The suspects confessed after brutal beatings. The Supreme Court held the statements were not voluntary and their use at trial violated the fourteenth amendment's due process clause. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). Subsequent cases focused on three main values: 1. The reliability of the statement; 2. The methods used to extract the statements; and 3. Whether the suspect's free choice was significantly impaired even if police tactics were not offense.

(c) Relevant Factors in the "Totality of Circumstances"

1.    Whipping of slapping the suspect
2.    Depriving suspect of food, water or sleep
3.    Keeping suspect naked or in a small cell
4.    Holding a gun to suspect's head or threatening him with mob violence
5.    Lengthy and uninterrupted interrogation, especially if suspect is held incommunicado
6.    Confinement for extended period of time while only sporadically interrogated
7.    Distractive or disorienting techniques such as moving suspect from place or interrogation by different questioners
8.    Keeping suspect isolated (solitary confinement)

1.3 Miranda: When Interrogation is "Custodial"

CUSTODY + INTERROGATION = MIRANDA

    Again, Miranda does not require officers to give the warnings whenever they plan to interview a suspect:. Warnings are required only before custodial interrogation. Simply put, you must Mirandize only when the suspect is in custody and he is going to be interviewed about a crime. When a suspect is under arrest, she is clearly in custody and must be Mirandized before questioning. A suspect may also be in custody, for Miranda purposes, without a formal arrest.

(a) What is custody?

    The Miranda court equated custody with being "deprived of...freedom in any significant way." Subsequent decisions characterize custody as formal arrest or restraint on freedom of movement. Oregon v. Mathiason, 429 U.S. 492 (1977); California v. Beheler, 463 U.S. 1121 (1983). The custody question turns on a case by-case basis. State v. Fritschen, 247 Kan. 590, 597, 802 P.2d 558 (1990).

(a) "Custody" vs. "Focus"

    Contrary to what some detectives around here may tell you, police do not need to Mirandize a suspect simply because she is the "focus" of an investigation. Beckwith v. United States, 425 U.S. 341 (1976); Stansbury v.. California, 114 S. Ct. 1526 (1994); Fritschen, 247 Kan. at ___. However, focus becomes a factor, not in itself determinative, in the custody determination, when the fact that the suspect is the focus is communicated to the suspect. Also, an officers subjective beliefs about the nature of an interrogation generally have no bearing on the determination of whether a suspect is in custody for Miranda purposes.

    So, the fact that an investigation has focused on the interviewee does not mean that Miranda warnings are required; but if an officer communicates that fact to the interviewee, it may become a factor in the custody element of the Miranda "equation."

(b) Subjective vs. Objective Approach

    Whether a person is in custody for Miranda purposes is determined from the point of view of the "reasonable man in the suspect's position..." Berkemer v. McCarty, 468 U.S. 420 (1984); State v. William, 248 Kan. 389 (1991). The focus is on whether a reasonable person, standing "in the shoes of" the defendant, would think she was free to leave. Your subjective thoughts, and the suspect's subjective thoughts, are irrelevant. Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The circumstances surrounding the interrogation are determinative. Fritschen, 247 Kan. at 597, 603.

(1) Factors Weighed in Determining Whether the Suspect was in Custody

(A) When the interrogation occurred
(B) Where the interrogation occurred
(C) How long interrogation lasted
(D) Who was present
(E) What the police officers said or did
(F) What the Defendant said or did
(G) The existence of actual physical restraint
(H) How the defendant was questioned, i.e., as a witness or suspect
(I) How the defendant got to the place where the questioning occurred
(J) What happened after the interrogation.

(d) Presence at Station

(1) It is more likely that custody exists in cases of stationhouse questioning. After all, Miranda targeted coercive station house interrogation. However, stationhouse interviews do not always require a custody finding: again, the key is restraint of freedom. If police tell a suspect he is not under arrest, that he may leave any time, and then allow him to leave when a confession-producing interview ends, he was not in custody. Mathiason, 429 U.S. at ___. Even arrest following a confession doesn't mean the suspect was in custody during the interview, and the confession will, in proper circumstances, survive a lack of warnings. Fritschen, 247 Kan. at 603.

(2) State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (Kan. 1997). Murder suspect made incriminating statements during 3 1/2 hour interview in interview room at police station. In holding that the suspect was not in custody for the first hour of the interview, the court noted two LEOs were present but each left the room at various times for various reasons; the conversation was cordial and friendly; LEOs asked suspect whether he had any plans for rest of evening, thus indicating interview could be rescheduled if necessary; LEOs told suspect they were attempting to clear him as a suspect and would "cut him loose" later; LEOs thanked suspect for coming in voluntarily; LEOs provided suspect a beverage upon suspect's request; LEOs asked suspect if he wanted some cake; suspect was not restrained in any way; there were no guards at the door; suspect came to police station in his own car upon request of LEOs; one of the LEOs asked for suspect's drivers license and although he did not return it he placed it on the table between them and when suspect asked for it, the LEO handed it to him. Suspect was arrested for murder at conclusion of the interview.

(e) Presence Elsewhere

    Other locales may or may not weigh heavily in the custody determination. Obviously, if the opportunity for coercion in that locale is lessened, the likelihood that custody does not exist increases.

(1) Home interviews

    Warnings are required when an interview takes place in the suspect's home if his freedom of movement is restricted or he is formally arrested. Orozco v. Texas, 394 U.S. 324 (1969). If there is no formal arrest, and the suspect is free to leave, Miranda is not required. Beckwith, 425 U.S. at ___.

    On the scene questioning at a shooting which later moved to the defendant's bedroom due to normal crime scene chaos was held to be non-custodial in State v. Gooden, 22 Kan. App.2d 271, 915 P.2d 169, rev. denied 260 Kan. 998 (1996). In Gooden, the defendant told several different accounts of what took place. Gooden agreed to talk in his bedroom. Once, Gooden asked to go outside and the officer said there were too many people outside and it was too cold. At one point, Gooden reached into a closet, prompting the officer to draw his weapon and tell Gooden to sit down. Gooden later agreed to go to the police station for questioning, and at one point asked to go home. Officers responded they had no problem with that, but wanted him to stay. When officers learned Gooden was the shooter, they immediately Mirandized him.

(2) Police cars

    Questioning in a police car may strongly suggest custody, but if other factors, or their absence, indicate that a suspect is free to leave, custody does not exist. The Supreme Court refused to review a state court case so holding, Colorado v. Probasco, 795 P.2d 1330, cert. denied, 111 S. Ct 558 (1990).

(3) Traffic stops

    Routine traffic stops do not rise to the level of "custody" for Miranda purposes. The U.S. Supreme Court characterizes such stops as generally "non-threatening" temporary detentions, akin to generic Terry v. Ohio stops. Berkemer, 468 U.S. at ___; Pennsylvania v. Bruder, 109 S. Ct. 205 (1988). Of course, once an arrest is made on a traffic stop, Miranda is required before interrogation may occur.

(4) Crime scenes -"on the Scene" questioning

    General on-the-scene questioning as to facts surrounding a crime, or similar general questioning of citizens during the initial "fact-finding" process, do not constitute custody. Miranda is not required in such situations. State v. Bohanan, 220 Kan. 121 (1976); State v. Brunner, 211 Kan. 596 (1973); State v. Phippen, 207 Kan. 224 (1971); State v. Almond, 15 Kan. App.2d 585 (1991).

(f) Other Considerations

(1) Coercive atmosphere

    Although no formal arrest occurs, it may be reasonable to find a "restraint of freedom" necessitating Miranda warnings if police create a clearly coercive atmosphere. So, strong shows of authority such as display of weapons, an unusual number of officers, and an officer's conversational tone may call for Miranda.

(2) Defendant Handcuffed

    Application of handcuffs does not necessarily mean the suspect is in custody from that point in time through the rest of the police contact. However, handcuffs strongly suggest the suspect is no longer free to go. Therefore, if you apply handcuffs while conducting a Terry frisk (which you should always do to protect your safety), then remove them and attempt to interrogate the suspect without Mirandizing them, it would be a good idea to tell the suspect they are free to go.

1.4 Miranda: "Interrogation"

    Miranda warnings are required only when the suspect is interrogated (and, of course, in custody). For Miranda purposes, "interrogation" means direct questioning intended to produce incriminating statements, or the functional equivalent of direct questioning.

(a) The "Functional Equivalent" Test

    Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part oi the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U.S. 291 (1980).

    Whether conduct constitutes the functional equivalent of direct questioning depends on the facts of each case; this determination involves examining officers' knowledge of a suspect and any susceptibility he has to the police conduct. The conduct must be that which police know, or should know, is "reasonably likely" to evoke an incriminating response.

Brewer v. Williams, 430 U.S. 387 (1977); Innis, 446 U.S. 291 (1980);. Mauro, 481 U.S. 520 (1987).

(b) Questioning

(1) Express/Direct questioning

    Police clearly engage in interrogation when they question a criminal suspect about his criminal activity. If questioning is coupled with custody, Miranda is required.

(2) Exception to Interrogation -"On-The Scene" investigative Inquiries

    Police may, without implicating Miranda, ask "on-the-scene" questions limited to the purpose of identifying persons found in the vicinity of a recent crime. For example, when officers respond to a domestic situation and a bloody, battered person walks out of her house to greet police, they may ask "What happened here?" The persons's statement, "he came home drunk and hit me, so I shot him," can be introduced in her murder trial.

(3) Exception to Interrogation - The Public Safety exception

    When legitimate public safety concerns outweigh Fifth Amendment concerns, police may forego Miranda and ask certain narrow questions despite the fact that such inquiries may be characterized as "direct questioning." For example, police need not Mirandize a suspect after a frisk in a public place yields an empty shoulder holster--instead, officers may immediately ask, "Where's the gun?"

New York v. Quarles, 104 S.Ct. 2626 (1984); State v. McKessor, 246 Kan. 1 (1990).

(3) Exception to Interrogation - Routine Booking Questions

    Miranda is not required before officers ask routine booking questions. Questions concerning an arrestee's address, his family history, and other similar data are not "testimonial" in nature and, accordingly, are not considered incriminating.

    But, not all questions asked during the booking process are non-testimonial. For example, inquiries during DUI bookings such as "have you had anything to drink tonight?" require Miranda if they seek incriminating responses. Note: This same question, if asked on the scene at a car stop, is allowable without Miranda warnings.

Pennsylvania v. Muniz, 110 L.Ed. 2d 528 (1990).

(c) Other "Words or Actions"

(1) Applying psychological pressure - "The Christian Burial Speech"

    Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In this case, suspect was arrested, arraigned, and committed to jail in Davenport, Iowa, for abducting a 10-year-old girl in Des Moines, Iowa. His attorney told him not to make any statements until he consulted with another lawyer upon being returned to Des Moines. The LEOs who drove suspect from Davenport to Des Moines agreed not to question suspect during the trip. While en route to Des Moines, suspect said he didn't want to talk unless his lawyer was there, but stated several times that he would tell the whole story after seeing his Des Moines lawyer. One of the LEOs knew suspect was a former mental patient and was deeply religious. LEO stated to suspect he felt they should stop and locate the girl's body because her parents were entitled to a Christian burial for the girl, who was taken away from them on Christmas Eve. Suspect eventually made several incriminating statements in the course of the trip, and finally directed the police to the girl's body. Here the police officer's 'Christian burial speech' was tantamount to interrogation and suspect was entitled to the assistance of counsel at the time he made the incriminating statements.

    Although the confession was suppressed, officers were able to prove they would have inevitably discovered the body, so the body and evidence resulting therefrom was ruled admissible in evidence. Police showed that 200 searchers were approaching the vicinity of the victim's body at the time Williams decided to cooperate. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

(d) "Volunteered" Statements and Follow-Up Questioning

    Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Suspect walked up to a uniformed Denver police officer on the street and announced that he wished to confess he had murdered someone. The puzzled officer immediately gave him Miranda warnings. Suspect says he understands his rights, but still wants to confess to murder. The still-bewildered officer then asked the defendant several questions about whether he had been drinking or taking drugs. Suspect denied any drinking or drug use, but admits he is a former mental patient and wanted to talk because "his conscience had been bothering him." After more contact with uniformed officer and detectives, all of which told suspect he did not have to say anything, suspect confesses. He later attempts to have statements suppressed alleging he was "under compulsion from the voice of God." The Supreme Court was not impressed with this argument. In holding the statements admissible, the court stated:

    Respondent would now have us require sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, . . and not by the Due Process Clause of the Fourteenth Amendment. 'The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.' [Citation omitted].

    We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent's statements, and their admission into evidence, constitute no violation of that Clause.

1.5 Miranda: Required Warnings

(a) Content

    Miranda tells us to advise suspects of certain rights before custodial interrogation begins. Agencies commonly provide "Miranda Cards" to officers that contain recitations of these rights. Always use these cards-never Mirandize by memory.

Miranda requires officers to advise a suspect:

(1) That he has the right to remain silent;
(2) That anything he says can be used against him in court;
(3) That he has the right to the presence of an attorney before and during questioning; and,
(4) That should he be unable to afford an attorney, one will be appointed for him before any questioning.

(5) Wording the Warnings

    The warning must convey the essence of the suspect's rights-while it isn't necessary to repeat the Court's exact words, their substance must be conveyed. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The key is to make the suspect understand what rights she has.

(6) Straying from the Typical Warning

    Courts have allowed some minor deviation from the traditional warnings. In California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L.Ed.2d 696 (1981), the U.S. Supreme Court ruled that the admonition that the defendant had "the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning," and "the right to have a lawyer to represent you at no cost to yourself," satisfied Miranda even though the officers neglected to tell him that he had the right to have counsel appointed prior to questioning. More recently, the Court held that telling a suspect that there was "no way of giving" him a lawyer, but that one would be "appointed for you, if you wish, if and when you go to court," was not so far astray from traditional Mirandizing as to render the admonition defective. Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 287, 106 L.Ed.2d 166, (1989).

(7) BE ACCURATE! Defective admonitions make defective cases. READ THE SUSPECT'S RIGHTS FROM THE CARD.

(b) Time and Frequency

    Generally, warnings do not become "stale" after a few hours interrogation and officers are not required to give the suspect "fresh" warnings. However, whether officers did so will be a factor which is considered in determining whether there is a knowing, voluntary waiver of rights.

    Don't assume that another officer gave the warnings and did it correctly. If you believe the suspect will confess, you have nothing to lose by ensuring the suspect was Mirandized and voluntary waived his rights.

(c) Manner; Proof

    Usually the only persons in the interrogation room are the officer(s) and the suspect. The stories of what occurred in that room are often wildly divergent. Because of the lack of outside observers, objective evidence is preferred to prove the suspect was advised of her rights. Written right admonitions are good. Even better are videotaped interviews which clearly depict the LEO scrupulously following their Miranda cards and/or a written admonition document.

(d) Additional Admonitions

(1) LEOs have no duty to tell suspects that invocation of their right to remain silent cannot be used against them at trial.

(2) LEOs have no duty to advise suspects about the crime for which they wish to interrogate the suspect. Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.ED.2d 954 (1987).

1.6 Miranda: Waiver of Rights

    Again, police may question suspects in custodial interrogation situations only when they Mirandize them and the suspect waives their Miranda rights. Waivers must be knowing, intelligent and voluntary. The prosecution must prove, by a preponderance of evidence, that any confession was knowing and voluntary.

    Whether a suspect has "knowingly and intelligently" waived her Miranda rights depends on several factors. Relevant factors include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Hickles, 261 Kan. 74, 79-80, 929 P.2d 141 (1996). Courts also consider a suspect's mental capacity, State v. William, 248 Kan. 389, 807 P. 2d 1292 (1991). The Kansas Supreme Court has stated that a knowing and intelligent waiver may be established by showing that a suspect understood his right to a lawyer and understood he had the right not to talk. State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991).

    Remember that a confession preceded by Miranda warnings and a waiver may still be inadmissible as involuntary. A confession must be shown, in the totality of the circumstances surrounding it, to be voluntary. State v. Wacker, 253 Kan. 664, 861 P.2d 1262 (1993), and William, 248 Kan. 389 (1991).

(a) Express or Implied

(1) Express waivers require no explanation. After advising a suspect of their rights, the suspect affirmatively states they are willing to talk, and they do talk. Another example is a written waiver form.

(A) Written Waivers

    Many officers verbally advise suspects of their rights, and then request the suspect to read a written form containing the same information. If at that point the suspect is willing to waive and answer questions, she can sign the form acknowledging that she has been advised of her rights; understands them, and is willing to waive and answer questions.

    Written waivers are valuable evidence that police complied with Miranda. Prosecutors and judges like written waivers; because they complicate challenges to confessions, defense attorneys therefore dislike them.

    Occasionally suspects verbally waive their rights, agree to answer questions, read the written waiver and again agree to answer questions, but refuse to sign a written waiver form. Refusal will not necessarily invalidate the waiver. North Carolina v. Butler, 441 U.S. 369 (1979).

(2) Implied waivers can be inferred from the circumstances. Without affirmatively stating they wish to talk, a suspect can give an implied waiver by answering questions propounded to them. However, mere silence is insufficient proof of waiver.

(A) North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Suspect had 11th grade education and was literate. FBI agents gave him their "Advice of Rights" form which suspect read and said he understood, but refused to sign. Suspect was advised he did not have to speak or sign the form, but agents still wanted to talk to him. Suspect said "I will talk to you but I am not signing any form." He then made inculpatory statements. One agent stated that suspect said nothing when advised of his right to the assistance of a lawyer, and at no time did the suspect request counsel or attempt to terminate the agents' questioning. On appeal, the North Carolina Supreme Court reversed the convictions and ordered a new trial finding confession was inadmissible because suspect had refused to waive in writing his right to have counsel present and that there had not been a specific oral waiver. Supreme Court reversed, holding that while silence along does not constitute waiver, wavier can be implied depending on the factual circumstances of the case.

(B) State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996). Murder suspect taken into custody while walking along a country road. During transport in a deputy's patrol car he was advised of his Miranda rights. After arrival suspect was placed in a detective's office with 3 LEOs present. LEOs asked if he recalled being advised of his rights and if he recalled them. Suspect responded that he understood and had no questions as to the Miranda rights. LEO told the defendant he wanted to hear suspect's side of the story and asked him three or four questions about crime. Suspect stated, "I don't have anything to say." About 5-7 minutes into the interview, suspect asked whether LEOs had open minds and whether it would benefit him to tell his side of the story. LEOs stated they did. Suspect asked several more questions, then asked "Is this when I get an attorney?" LEO thought the question ambiguous, and asked "Are you asking for an attorney?" Suspect failed to respond. LEO repeated questions, and suspect advised he was not requesting an attorney. Suspect then made incriminating statements. LEO asked follow-up questions. Entire interview lasted from 15 to 30 minutes. Court held that suspect impliedly waived his right to remain silent or request an attorney. 261 Kan. at 82-83.

(b) Competence of the Defendant

    In order for confession to be knowing and voluntary, defendant must have the capacity to know and understand her rights, and voluntarily waive them. Inebriation or mental illness can make the suspect incompetent to make a knowing and voluntary waiver.

(1) State v. Wacker, 253 Kan. 664, 861 P.2d 1272, (1993). Suspect accused of raping and killing a nine-year old girl made inculpatory confessions during several interviews. Suspect claimed waiver was involuntary in view of his diminished educational, emotional, and mental capacities; through compulsion during secret extended periods of questioning; and by fear through the interrogators' use of threats. Suspect had an I.Q. of 72, although he seemed to function well in society. After reviewing all the evidence, including expert testimony from two psychiatrists and the testimony of the LEOs, court upholds waiver as knowing and voluntary.

(2) State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991). Murder, robbery and rape suspect made incriminating statements during interview after being advised of his rights. Suspect had an I.Q. of 67 and was described as "mildly retarded." Suspect could not read or write. LEOs read each statement on waiver form to suspect and asked him if he understood them. Suspect stated "yes" and agreed to talk. LEOs showed suspect how to mark form and sign it. Suspect told LEOs he had a split personality and his other personality "The Drifter" did the crime. Suspect said victim was dead when he had intercourse with her, and that he learned to have sex with dead bodies while working for undertakers in Pennsylvania. Suspect also told officers he had spent time in mental institutions. Court holds waiver was knowing and voluntary under all the circumstances. "Understanding that one has the right to a lawyer or to not talk is enough to show a knowing and intelligent waiver of Miranda rights. To require more would void most waivers. " 248 Kan. at 766.

(3) Children

(A) Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 107 (1979). Totality of the circumstances approach can be used in determining whether juveniles knowingly and voluntarily waive their rights.

(B) State v. Young, 220 Kan. 541, 552 P.2d 905 (1976). Kansas courts have long followed the totality of the circumstances test as a applied to juveniles, but used the "greatest care" in assessing the validity of the confession and considered the age of the minor; the length of the questioning; the youth's education; the youth's prior experience with police and the youth's mental state. This totality of the circumstances test meant that youth had no constitutional right to speak to their parents prior to police interrogation. State v. Orr, 262 Kan. 312, 940 P.2d 42 (1997).

(C) In The Matter of B.M.B., ___ Kan. ___ (No. 79,358 03/13/98). "A juvenile under 14 years of age must be given an opportunity to consult with his or her parent, guardian or attorney as to whether he or she will waive his or her rights to an attorney and against self-incrimination. Both the parent and juvenile shall be advised of the juvenile's right to an attorney and to remain silent. Absent such warning and consultation, a statement of confession cannot be used against the juvenile at a subsequent hearing or trial."

(c) Conduct of the Police

    Because Miranda was designed to protect against coercive police practices, actions of the interrogating officers always weigh heavily into the equation when a court determines whether any particular waiver was knowing and voluntary. Interrogators would do well to make suspects as comfortable as possible and put suspects at ease to the extent possible.

(1) Perkins, 248 Kan. 760. Court points out at great length the fairness of the officers conducting the interviews, noting there were no promises, threats, or coercion and that all officers went to great lengths to inform Perkins of his rights. Court also noted that when suspect became reluctant to talk, interrogator became "overly friendly" at times and made emotional appeals to the defendant to "face these things." Court held that emotional appeals do not amount to police authority -- they were simply an attempt to calm an upset individual.

(2) State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (Kan. 1997). Murder suspect made incriminating statements during 3 1/2 hour interview in interview room at police station. In holding that the suspect was not in custody for the first hour of the interview and the suspect knowingly and voluntarily waived his rights during the remaining 2 1/2 hours, the court noted the following factors: two LEOs were present but each left the room at various times for various reasons; the conversation was cordial and friendly; LEOs asked suspect whether he had any plans for rest of evening, thus indicating interview could be rescheduled if necessary; LEOs told suspect they were attempting to clear him as a suspect and would "cut him loose" later; LEOs thanked suspect for coming in voluntarily; LEOs provided suspect a beverage upon suspect's request; LEOs asked suspect if he wanted some cake; suspect was not restrained in any way; there were no guards at the door; suspect came to police station in his own car upon request of LEOs; one of the LEOs asked for suspect's drivers license and although he did not return it he placed it on the table between them and when suspect asked for it, the LEO handed it to him; and LEOs encouraged suspect to tell the truth because he would be better off. Although court stated, "The officers were not required to have the defendant's best interests at heart or even be nice to him during the questioning," the fact they were nice helped establish lack of custody during initial questioning and voluntary waiver after LEOs gave Miranda warnings.

(3) Promises made to suspects.

    Direct promises to a suspect are inherently risky and may result in exclusion of the confession. K.S.A. 60-460(f) allows for exclusion of a confession if it was induced by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same."

    Promises of benefits may backfire--courts may find that a promise was so appealing that it improperly motivated a confession, or that a promise of a benefit to be derived from cooperation rendered the confession involuntary.

(A) State v. Tillery, 227 Kan. 340, 606 P.2d 1031 (1980). Kidnaping and indecent liberties suspect told LEO he was trying to aid the victim. LEO told suspect he didn't believe him and "it would be better if he told the truth." Court held LEOs' statement did not render confession involuntary, nor was it likely to induce a false confession. The court stated:

"In considering the effect of a promise made by the police to an accused during an interrogation various factors have been recognized as worthy of consideration in determining the voluntariness of a subsequent confession. To render such a confession involuntary it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute the same." [Citations omitted]. 227 Kan. at 344.

(C) A promise to speak with the district attorney, by itself, is insufficient evidence to invalidate a confession. State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987 (1976). However, as in Baston, what was said just before the confession often gets twisted and the inherent coerciveness of police interrogation causes courts to cautiously review such statements.

(D) State v. Waugh, 238 Kan. 537, 543, 712 P.2d 1243 (1986). Promise to allow an accused to see his wife may not be sufficient inducement if the visit is not conditioned on a confession.

(d) Conduct of the Defendant: Implied Waiver

    As noted above in Butler, a suspect does not have to utter magic words to waive their rights. They can do so by talking to police after being advised they do not have to, or by initiating conversations with police without being asked to.

(e) Conduct of the Defendant: Implied Assertion of Rights

    Once a suspect invokes his right to counsel,, police must immediately cease questioning. Questioning may not resume unless and until the suspect reinitiates communications with police, or his counsel is present. Giving renewed warnings after an invocation of rights is not an exception to this rule. Minnick v. Mississippi, 111 S. Ct. 486 (1990).

    The problem often becomes identifying whether the suspect has actually invoked a Miranda right. Sometimes suspects give ambiguous responses when asked if they will waive their rights or, during a post-waiver interview, question officers about attorneys. In such situations, Kansas officers may, but no longer are required to, cease questioning and seek clarification. In State v. Morris, 255 Kan. 964, 880 P.2d 1244(1994), the LEO read the suspect his rights and asked if he understood them. The suspect replied "I'm not sure what I want to do." The LEO was not sure what to do, so he did not further question the suspect. The Kansas Supreme Court, relying on the United States Supreme Court's opinion in Davis v. U.S., 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), and held that interrogators do not have a constitutional duty to cease questioning and ask clarifying questions to ascertain whether a suspect's ambiguous reference to counsel is actually an invocation of his right to counsel.

(f) Conduct of the Defendant: "Qualified" or Limited Waiver

(1) Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). If police honor limitations imposed by the suspect, resulting confessions are admissible. In this case, suspect repeatedly told police he would talk to them about an incident bur refused to give a written statement unless his attorney was present. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak."

(2) Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Rape suspect agreed to take a polygraph after release on bail and consultation with retained counsel. Prior to polygraph, executed Miranda waiver. After examination, LEO asked suspect to explain deceitful answer and suspect admitted involvement in rape, but claimed consent. Statements were admissible because discontinuing polygraph did not effectuate significant change in character of the interrogation.

(g) Waiver After Assertion of Rights

    Miranda gives suspects right to cut off questioning by invoking their rights, and LEOs must respect that right, but suspects can waive their rights after an invocation provided the prosecution can show LEOs "scrupulously honored" the right to cut off questioning.

(1) Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Robbery suspect was questioned and invoked. Two hours later, another detective began questioning suspect about a murder and, after Mirandizing suspect, obtained incriminating statements. The statements were admissible because the first interrogation immediately ceased; questioning resumed after a significant period of time and a fresh set of warnings; and second interrogation was unrelated to the first.

(2) State v. Fritschen, 247 Kan. 592, 802 P.2d 558 (1990). KBI agents interviewed murder suspect at his house and obtained a blood sample. Nine days later, another agent asked suspect to come to police station in Hutchinson. Suspect did not have enough gas to get there, so agents gave him a ride. Suspect was not handcuffed. Agents advised suspect of his Miranda rights and told that he was free to leave. Agents began confronting suspect with statements of other witnesses, and suspect told agents he wanted to see a lawyer. The two interrogating agents ended the interview and started to take the suspect home. On their way out, their supervisor, unaware that suspect had invoked his rights, asked if the suspect would talk to him. Supervisor told suspect that in similar cases many people were able to justify the crimes in their minds and it was important for suspect to straighten things out. Suspect asked to speak to one of the other agents, and asked for a pack of cigarettes. Supervisor left the room and was then advised suspect had invoked. Supervisor returned with the cigarettes and told suspect that, because he had requested a lawyer, the agents could not talk to him unless he requested them to. Supervisor also said if laboratory tests came out positive, suspect would be arrested. Agents allowed suspect to sit in the interview room alone for about 11 minutes. Suspect called for an agent, and eventually signed written confessions. Confession was admissible because agents scrupulously honored suspect's right to cut off questioning.

(3) State v. Lane, 262 Kan. 373, 940 P.2d 422 (1997). Borderline mentally retarded murder and kidnaping suspect had a series of conversations with LEOs over the course of a few months. During the first interview, suspect invoked right to counsel. Questioning stopped immediately, but detectives searched suspect's home later that day pursuant to suspect's written consent and found incriminating items. Suspect later made numerous contacts with law enforcement officials and either offered alibis or criticized individuals who had told police suspect was involved in murder. Once, officers were at suspect's house interviewing his mother and suspect initiated contact with LEOs and provided two alibi witness names. Suspect continued initiating contacts with LEOs. LEOs did some research on interview techniques to use in child murder cases, including putting items relating to the crime and folders with the suspect's name in the interview room so that the suspect would realize he was the focus of the investigation; the interviewer should be an older, fatherly person; the suspect should be given a verbal Miranda warning rather than a written one; other murders should not be mentioned, and the suspect should be provided with a scenario allowing him to shift the blame to others. After suspect again initiated contact and said he wanted to take a polygraph, he confessed to two murders. Court held polygraph session was not custodial interrogation, pointing out that suspect was advised of his rights three times; he received several breaks; he used the restroom;, drank soda pop, and smoked; LEOs did not threaten Lane or make any promises to him; and suspect never requested an attorney during the interview.

(4) State v. Norris, 244 Kan. 326, 768 P.2d 296 (1989). A defendant's Fifth Amendment right to counsel, which attached upon custodial interrogation for an earlier offense, terminates upon defendant's release from custody for that offense. When defendant has not remained in continuous police custody, and interrogation begins concerning a later unrelated offense, the right to counsel will only vest again upon request by defendant.

1.7 Miranda: Nature of Offense, Interrogator, and Proceedings

(a) Questioning About Minor Offense

    Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). There is no Miranda exception for minor crimes such as misdemeanors or traffic infractions.

(b) Questioning by Private Citizen

    Miranda was directed at coercive police practice and its safeguards only apply to custodial interrogation. Miranda defined interrogation as"questioning initiated by law enforcement officers." Suspect must know they are talking to government agents. Thus, a police informant placed in a cell with a suspect can obtain incriminating statements without giving Miranda warnings. Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2194, 110 L.Ed.2d 243 (1990).

    However, this tactic will violate a suspect's Sixth Amendment right to counsel if that right has attached; and if police exercise coercive techniques, the incriminating statements will be inadmissible. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), where a paid FBI informant befriended murder suspect and offered him protection from other inmates in exchange for truth about rumors he killed his 11 year-old stepdaughter. Suspect admitted that he had killed the girl and provided details about the crime. C

(c) Questioning by Non-police Official

    Although interrogation is defined as "questioning initiated by law enforcement officers," the Supreme Court has indicated a willingness to expand the definition beyond just police officers. In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Court held it was immaterial that the statements were made to a court-appointed psychiatrist conducting a competency evaluation rather than a police officer.

(d) Other Special Concerns

(1) Interpreters - K.S.A. 75-4351

    K.S.A. 75-4351 requires appointment of an interpreter for a deaf or mute person, or a person whose primary language is not English, in certain circumstances, including when that person is the subject of custodial interrogation. The appointment must be made before any attempt to interrogate or take a statement. K.S.A. 75-4351(e).

(A) State v. Nguyen, 251 Kan. 69 (1992). If police fail to obtain such an appointment, a subsequently obtained statement or confession may be admissible if it is shown that the statement was given voluntarily, freely, and understandingly.

(B) State v. Salcido-Corral, 262 Kan. 392, 940 P.2d 11 (1997). Murder suspect whose primary language was Spanish seemed to understand LEOs questions in English and responded in English. Suspect was Mirandized in English, indicated he understood, and waived. He also gave consent to supply blood, hair and saliva samples. Suspect used an interpreter for the preliminary hearing and the trial. At trial, the State noted for the record that on three different occasions the defendant answered the question asked before it was interpreted for him, although all three of these questions were asking the name of the defendant, his brother, or the person who told the defendant he had to give blood. Court held that compliance with statute is immaterial if totality of the circumstances indicate waiver is knowing and voluntary under the totality of the circumstances.

(2) State Opens the Door

    State v. Hills, 24 Kan. App. 2d 1, 941 P.2d 404 (1997), rev. granted ___ Kan. ___. If prosecutor uses a defendant's inculpatory statement, the defendant can introduce exculpatory statements even though defendant will not testify at trial.

(3) Application of Rules to Police Officers

    Police Officers do not have "watered down" Fifth and Sixth Amendment rights when their conduct could constitute a crime. However, public trust position officers occupy requires that they account for actions taken in the course of performance of their duties. Therefore, investigators must either offer the suspect immunity from criminal prosecution for compelled statements, or suspect can invoke right to remain silent and be subject to discipline for insubordination when they refuse to account for their actions. Garrity v. New Jersey, 385 US 493, 87 S Ct 616 17 L.Ed. 2d 562 (1967)(police officers fixing traffic tickets); Gardner v. Broderick, 392 US 273, 88 S Ct 1913, 20 L Ed 2d 1082, (1968)(police officers engaged in gambling, bribery & corruption).

(e) Proceedings at Which Confession Offered

    Although statements obtained in violation of Miranda are inadmissible at trial, they may be admissible at other proceedings such as proceedings pursuant to the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.. See Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986).

2. The Right to Counsel

    The Sixth Amendment expressly guarantees a defendant's right to assistance of counsel. Courts interpret the Amendment as prohibiting police initiation of interrogation once a defendant asserts his Sixth Amendment rights, unless and until the defendant initiates communication with the police and waives his rights, or counsel is present.

    This right is case specific. In other words, it applies only to interrogation concerning the case in which the suspect is charged. Maine v. Moulton, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Moulton was indicted for theft and suggested to his co-defendant they kill the witness. Co-defendant later recorded conversations with Moulton about the thefts. Tapes were admitted at trial. The Court reasoned that the fact a defendant is charged with one offense is not reason to give him special protection in investigation of another. Of course, the suspect may also invoke his Fifth Amendment rights.

(a) When the Right to Counsel Begins - History

(1) Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Sixth amendment right to counsel attaches when defendant is indicted and his status changes from "suspect" to "accused." Accused was released on bail and discussed his charges with a co-defendant who was cooperating with police and who was wearing a wire. Statements were held inadmissible because Sixth Amendment right to counsel had attached.

(2) Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Escobedo was picked up and questioned regarding a shooting. A retained lawyer bailed him out of jail. About 10 days later, LEOs received new information that Escobedo was the shooter. LEOs arrested Escobedo and began interrogating him. Escobedo repeatedly asked to talk to his attorney. The lawyer came to the police station, but LEOs did not allow him to see his client. Escobedo confessed, and his written confession was used as evidence against him. Court held confession inadmissible as violation of Escobedo's Sixth Amendment rights, partially because Escobedo was clearly the focus of the investigation.

(3) Miranda. Appeared to displace Escobedo.

(4) Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In this "Christian Burial Speech" case, Court adopts Massiah analysis and holds that right to counsel attaches "at or after the time that judicial proceedings have been initiated" whether by "formal charge, preliminary hearing, indictment, information or arraignment."

(5) State v. Bristor, 236 Kan. 313, 691 P.2d 1 (1984). DUI defendant has no right to consult attorney prior to taking Breathalyzer examination. It is not until after the test has been administered that the State commits itself to the criminal prosecution. Therefore, criminal prosecution had not begun when defendant was asked to submit to a breath alcohol test. Since the criminal prosecution had not begun, and since it was not a "critical stage," it necessarily follows he had no Sixth Amendment right to consult counsel before taking the test.

(b) Waiver of Counsel

    Again, must be knowing and voluntary, and waiver must be expressed to a government agent.

(1) United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Communications to an undisclosed undercover informant acting for the government (a "jail plant") do not come within a knowing and voluntary waiver because defendant was unaware he was speaking to a government agent.

(2) Waiver after assertion rules governing custodial interrogation also apply to Sixth Amendment right to counsel cases. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1968). "Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence" of Jackson. Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).

(c) Infringement of the Right

    Means exclusion of evidence. Massiah, 377 U.S. 201 (excluding self-incriminating statements obtained by co-defendant carrying radio transmitter); Williams, 430 U.S. 387 (excluding incriminating statements resulting from "Christian burial speech").