Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.
State v. Kolts, 2018 VT 131
[O]K, friends, let’s talk about the so-called “Miranda warning.” I often tell people it’s the best known but least understood part of constitutional criminal procedure. If I had a nickel for every person who has said to me, “They didn’t read me my rights! That means I win on a technicality!” I would: (a) be able to retire; or (b) be out on bail (which I paid with nickels) because I sort of want to punch someone who calls the Fifth Amendment a “technicality.” It’s not. Because the Supreme Court said so.
Let’s jump into the wayback machine to the early 1960s when Ernesto Miranda got arrested for some crimes. The evidence was circumstantial at best. Police interrogated him for a couple hours and ultimately he confessed. Police never told him he had the right not to talk to them, they never told him that anything he said could be used against him in his criminal case, and they never told him he could talk to a lawyer before saying anything.
Mr. Miranda ended up being convicted of his crimes and his case wound its way through the various appellate courts before landing before the United States Supreme Court. SCOTUS, then led by Chief Justice Earl Warren, consolidated Ernesto’s case with several others and issued the landmark ruling that gave way to what we now know as “Miranda warnings.” In short, the Big Court was worried about the imbalance of power between police and suspects. Police can use all sorts of tactics and pressures on people to get them to say things, and at some point, gentle pressure becomes full-on coercion. Citizens need to be warned that they don’t have to participate in this at all and if they choose to, they do so knowing whatever they say can be used against them. And if they don’t know what to do, they are allowed to have a lawyer help them. But not a Lawyer Dog for reasons explained below.
The dissenting justices were all clutching the nearest available pearls and crying, “Wha?! Coercive interrogation tactics don’t actually happen and this will prevent police from obtaining confessions! Whatever will they do?” To that I say, “Hey, dead justices, do we occupy the same plane of existence? Also, let me introduce you to Brendan Dassey.” (NB: I don’t actually know Brendan Dassey. I’d show the justices any number of clips from “Making a Murderer” to make the point.)
Anyway, Mr. Chief Justice Earl Warren could not have been clearer in writing that when a suspect is in custody and subject to interrogation (or its functional equivalent), the person has to be told the following:
• They have the right to remain silent;
• Anything they say will be used against them in court;
• They have the right to consult with a lawyer before interrogation, and can have a lawyer with them during questioning; and
• If they’re indigent, a lawyer will be appointed to represent them.
That’s it. That’s the words. In order to trigger the need for the police to say those words, someone must be both in custody and subject to interrogation.
Now, the fun thing, depending on how you define fun, I suppose, is that there are two amorphous words here, which we nerdy lawyer types (or lawyer dogs, depending who you ask) have been fighting over for about 60 years. What does it mean to be “in custody” and what does it mean to be “subject to interrogation?”
Suppose Mr. Suspect is standing on the sidewalk, is approached by a police officer, and they begin chatting. Mr. Suspect is free to end the conversation, walk away, and go about his day. Why? Because even if the chat started to look like an interrogation, he’s free to leave. He’s not in custody. Miranda warnings aren’t needed. (We’ll save the reasons for this next time we get a case involving a Terry stop.)
Suppose now Mr. Suspect has been arrested. He’s been put in handcuffs and is sitting in the back of a police car. It’s safe to say he’s in police custody. Suppose the officer isn’t talking to him at all. There’s no interrogation or functional equivalent. Miranda warnings aren’t needed.
As we all know, though, things don’t always happen this way. It’s tricky when a casual sidewalk conversation becomes one that Mr. Suspect can’t walk away from for some reason. Or when the conversation stops being conversational and starts being invasive questioning. Or when a confession is given but it isn’t clear it was voluntary.
So, here’s the problem in the instant case that I’m allegedly summarizing but am actually using to write about Miranda. The defendant, Mr. Kolts, came onto police radar when his young niece made a statement that he had sexually assaulted her. Police were understandably interested in investigating, so they called him and said they’d like to speak to him. Mr. Kolts got into his horseless carriage of choice, and made his way to the police department.
When he got there, he was shown into a room with clearly marked exit signs. The way the room is described it sort of sounds like it was furnished like a waiting room or lobby of sorts, with a sofa and soft chairs and some artwork on the walls. He asked if he could bring a friend, and they said that was fine, although I don’t think he did bring anyone with him. They told him he could leave whenever he wanted to, and they didn’t lock the door or otherwise prevent him from leaving. They chatted pleasantly for a while and Mr. Kolts said some incriminating things. Then they Mirandized him, asked him more questions, and he confessed to the crimes.
He filed a motion to suppress his confession to keep it out of court during any trial. His argument was that he should have been read his Miranda warnings sooner, and that when he gave his confession it was involuntary. The trial court denied his motion, and he ultimately appeals.
SCOV affirms this ruling.
First, SCOV tackles the custody issue and conclude he just wasn’t in custody. There’s no single determinative factor about whether someone is or isn’t in custody. Sometimes it’s obvious, like in my handcuff/police cruiser example above. But sometimes someone can be in custody in their own kitchen. It just depends on the factual circumstances.
Here are the facts SCOV uses to determine there was no custody here. First, Mr. Kolts was told he could leave if he wanted to. The exits were marked and the door wasn’t locked. Second, the detectives were pleasant and calm in their demeanor. Nobody shouted, nobody yelled, nobody called anyone any names. They asked questions in the same tone they’d use if they were talking to just about anybody else. Third, Mr. Kolts voluntarily took himself to the police department. They offered to come to his house, and he chose to meet them at the police station. Fourth, this was a fairly short conversation — about half an hour. Fifth, he asked if he could have someone with him, and that was permissible. Last, even though the questioning took place inside the police station, it was in a fairly comfortable room. It wasn’t one of those “Law & Order” interrogation rooms with a one-way mirror and people standing cross-armed on the other side.
So, finding there’s no custody issue, it really doesn’t matter whether he was subject to interrogation for purposes of Miranda. Because, like love and marriage, you can’t have one without the other in order to require Miranda warnings.
Now we have an issue of whether this confession was voluntary. Mr. Kolts argued that even though he confessed, he didn’t confess voluntarily. He argued the police were coercive in their questioning. At one point they said to him that there was DNA evidence that would prove him guilty. After that he confessed. They also told him that if he confessed, the complainant wouldn’t have to testify in the case.
If a confession is involuntarily given, it cannot be admitted. When a court is considering whether a confession was not voluntary, it looks at both the coercion used by police, and the characteristics of the defendant (see above re: Brendan Dassey). Police can use some coercion to help move an interview along, but they can’t go as far as to promise leniency or misrepresent their authority. A police officer alone can’t say: “If you tell me what you did I’ll make sure you don’t get jail time.” They don’t have that kind of authority, and a suspect could wrongly rely on this promise in making a confession.
With respect to the DNA statement, this wasn’t true, but there wasn’t anything else to go along with it to render the confession involuntary. SCOV also finds that the statement about the niece not being required to testify was less of a promise and more of a speculation about what the State’s trial theory would be. As an avowed fan of the Sixth Amendment this troubles me, but this summary has grown long so we’ll leave that for a different day.
Last, there were two psychologists who Mr. Kolts wanted to testify as experts on his behalf. Their testimony would have been to give an opinion about his confession. The conclusions would have been that his confession was false, and that his confession was borne out of his guilt over some other noncriminal events between he and the complainant. The trial court held a hearing and excluded these expert witnesses. Mr. Kolts appeals this, and SCOV affirms.
The first psychologist evaluated Mr. Kolts shortly after he gave his confession. For lack of a better way to say it, when he talked to her he was a wreck. She based her opinion about his confession on how he presented after having given the confession and after he was released from pretrial detention. The problem was that the psychologist was basing her opinion of the confession on his subsequent presentation, which really wasn’t relevant to how he was presenting at the time of the actual confession. Also, she didn’t have experience with false confessions.
The second expert was Mr. Kolts’ treating therapist who also didn’t have experience with false confessions.
Experts are meant to testify and give opinions where their specialized knowledge can help a fact-finder understand issues in a case. We assume people can understand most things we discuss in everyday life. When we start getting in to things that are more specialized, we need experts. The trick is to make sure your expert has the chops to provide an opinion about what you need them for.
Nevertheless, the trial court did issue a jury instruction on the voluntariness of the confession. Mr. Kolts appealed this, too, arguing that the language of the instruction would cause the jury’s focus to be misplaced on his waiver as opposed to the voluntariness of the confession. SCOV says the instruction was fine since it gives effect to the spirit of the law, which is what jury instructions are supposed to do.
