CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MANIPULATING MIRANDA

It is not uncommon for law enforcement agencies to interrogate a suspect at different times and in different stages while the suspect is at the police station. Indeed, some law enforcement agencies maintained a protocol that instructed its agents to delay the Miranda Warnings until an incriminating statement has been produced. At that point, the suspect would be Mirandarized and the confession restated.

New Jersey's Supreme Court has concluded that this "question-first, warn-later" type of interrogation is conceived to undermine the holding in Miranda and the suspect's privilege against self-incrimination. In an effort to set "clear standards" that would discourage law enforcement agents from diluting these important principles of law, the court identified a number of factors to be considered to determine whether or not a suspect "knowingly, voluntarily and intelligently waived his rights" where the "question-first, warn-later" questioning occurs. Those factors included : (1) the extent of the questioning; (2) the nature of admissions made before the suspect was informed of his Miranda rights; (3) the time between the pre-and-post-warning questioning; (4) whether the same law enforcement agents were involved; (5) whether there was any pre-warning statement to the effect that information would be used against the suspect; and, (6) whether the post-warning questioning was a continuation of the pre-warning questioning.

Recently, an appellate panel rejected the government's position that this two-step strategy of interrogation was defective where a pre-warning interrogation

produced no incrimination evidence, but the post-warning interrogation did. In that opinion, the court embarked upon a painstaking analysis of the factors recited

above and concluded that the government had not proved beyond a reasonable doubt that the suspect made a knowing, intelligent and voluntary waiver of his

Miranda Warning and his rights when he gave his post-warning statement that was incriminating