CHAPTER 3

CONFESSIONS

§ 3.01 The Scope of the Right - Testimonial and Nontestimonial Evidence

§ 3.02 - Confessions, Admissions, Privileged Silence

§ 3.03 The Voluntariness Standard

§ 3.04 - Involuntariness in the Absence of Official Coercion

§ 3.05 - Proof of Voluntariness

§ 3.06 The Miranda Rules, State v. Brunelle, and the Public

Defender Statute

§ 3.07 - The Public Defender Statute

§ 3.08 - State v. Brunelle

§ 3.09 Official Interrogation

§ 3.10 The Warnings

§ 3.11 Custody

§ 3.12 Interrogation

§ 3.13 Waiver of Rights - The Showing of Waiver

§ 3.14 - The Requirement of a Writing

§ 3.15 - Voluntary, Knowing, and Intelligent

§ 3.16 The Interested Adult Rule

§ 3.17 Assertion of Rights

§ 3.18 Waiver Following Assertion of Rights

§ 3.19 Exceptions to the Miranda Requirement - The Public

Safety Exception

§ 3.20 - The Booking Exception

§ 3.21 Statements Obtained in Violation of the Sixth Amendment

§ 3.22 - Custodial Interrogation

§ 3.23 - "Deliberate Elicitation"

§ 3.24 - Waiver of Sixth Amendment Counsel

§ 3.25 The Exclusionary Rules

§ 3.26 - Involuntary Confessions

§ 3.27 - Miranda/Brunelle Violations

§ 3.28 - Sixth Amendment Violations

§ 3.29 - Statutory Violations

§ 3.01

The Scope of the Right -

Testimonial and Nontestimonial Evidence

The fifth amendment's privilege against self-incrimination (no person "shall be compelled in any Criminal Case to be a witness against himself") has its counterpart in chapter I, article 10 (no person can "be compelled to give evidence against himself"). Despite the broader language of the state provision, both clauses are held to relate exclusively to "evidence of a testimonial or communicative nature. . . ."{1} Neither privilege protects against compulsion to furnish physical evidence, such as breath or blood samples,{2} handwriting exemplars,{3} fingerprinting, photographing, or physical measurements.{4} The police can also direct the suspect to perform dexterity tests of various sorts without offending the privilege, so long as the evidentiary value of the suspect's responses does not depend on their communicative content.{5}

The distinction between testimonial and nontestimonial evidence can be elusive.{6} A compelled breath or blood sample is undoubtedly nontestimonial. A refusal to submit to such testing (admissible by statute to show consciousness of guilt in drunk driving cases){7} has testimonial elements, and when a refusal is accompanied by an explanation (e.g., "I won't take the test because I don't think I'll pass it") the evidence is clearly testimonial or communicative.{8}

On the other side of the coin, a suspect's answers to police interrogation, though preeminently "testimonial or communicative," may have significant nontestimonial content, for example, by showing physical condition or "demeanor."{9} The Vermont court has not decided when demeanor evidence obtained in the course of an illegal interrogation is suppressible as a product or "fruit" of the unlawful interrogation.{10}

§ 3.02

- Confessions, Admissions, Privileged Silence

The privilege extends beyond full confessions to any compelled admissions, and even to statements intended to be exculpatory.{11}

A defendant's silence in the face of accusations can constitute inculpatory "testimonial" evidence. Such silence is inadmissible, either to impeach the defendant's trial testimony or as evidence of consciousness of guilt, if the defendant has been warned, per Miranda, that he has a right to remain silent.{12} The defendant's silence in the face of Miranda warnings also may not be used to prove sanity, on the theory that silence in such circumstances constitutes nontestimonial "conduct."{13} The rule is the same even when the questioning is not "custodial" and the police are not required to give Miranda warnings but do anyway.{14}

When a defendant is not altogether silent in response to warnings, his failure to give an exculpatory account may be used at trial, and argued in closing argument, to impeach his testimony, so long as the omission is "sufficiently inconsistent with his testimony at trial. . . ."{15} Because Miranda allows the suspect to cut off questioning at any time,{16} and because the suspect is under no obligation to provide an exculpatory explanation of his actions,{17} the omission must be shown to be truly inconsistent if the defendant is not to be penalized for his failure to "tell all."

Privileged silence before the giving of Miranda warnings, by contrast, is admissible under federal law.{18} It remains an open question whether pre-Miranda (or Brunelle{18.5}) warning silence may be admitted under article 10, a number of state courts having refused to follow the federal rule.{19} Proof of such silence can also be challenged on nonconsitutional grounds: as a violation of the rules of evidence,{20} and because assertion of privileged silence ordinarily lacks probative value.{21}

§ 3.03

The Voluntariness Standard

Fourteenth amendment due process prohibits the introduction of "involuntary" testimonial evidence.{22} Determining voluntariness in this context, as in others,{23} is often a subjective and narrowly fact-bound undertaking, which the per se rules of Miranda v. Arizona,{24} were designed to avoid. Voluntariness remains a critical fifth amendment/article 10 standard in those situations to which Miranda does not apply, as well as in determining the validity of waivers of Miranda rights.{25}

To be voluntary a confession must be "the product of a rational intellect and the unfettered exercise of free will."{26} It may not be induced by "threats, improper influence, or physical or psychological pressure."{27} Coulombe v. Connecticut states the test broadly:

Is the confession the product of an essentially free and unconstrained choice of its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. The line of distinction is that at which governing self-direction is lost and compulsion, or whatever nature and however infused, propels or helps to propel the confession.{28}

Early decisions of both the Vermont and United States Supreme Courts held that a showing of any coercive influence, whether by threats or promises of leniency, would render a confession involuntary. As of 1861 "the rule has been regarded as settled in this state `that a confession must never be received in evidence when the respondent has been influenced by any threat or promise,'. . . ."{29} The federal rule was similar. A confession, the Supreme Court held in Bram v. United States, "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."{30} The United States Supreme Court has backed off from these formulations. Bram no longer "state[s] the standard for determining the voluntariness of a confession. . . ."{31}

The Vermont court continues to cite its early precedents with apparent approval{32} and accepts Bram as "settled law."{33} Even so, the court has held that a police officer's offer "to convey the fact of a suspect's cooperativeness to the prosecutor" does not render a subsequent confession involuntary if the officer is only pointing to the value of cooperation in general, and is not making specific promises, for example, to reduce charges or recommend lighter punishment.{34} A "prediction" about future events beyond the officer's control (e.g.,} that a statement might result in reduced bail) is not the same as a "promise."{34.5}

The threat or promise, to warrant suppression, must be "a factor inducing the confession," and a promise made after the confession cannot have that effect.{35} State v. Austin{36} was a case where the court doubted a causal connection between an improper influence and a confession. A defendant who agreed to take a polygraph on the misrepresentation that the complainant would also take one, and who then made incriminating statements in a posttest interview, was held to have confessed voluntarily. The undertaking to test the complainant may have played a role in the defendant's decision to take the test, but did not influence his later confession.{37}

Cases in which the state threatens to impose a formal penalty on the suspect's exercise of his privilege against self-incrimination, such as loss of state employment or revocation of probation, are discussed in § 30.04 (selfincrimination).

§ 3.04

- Involuntariness in the Absence of Official Coercion

A confession may be involuntary under the Coulombe standard even when there has been no coercion, official or otherwise. For example, a confession that is the product of mental illness is not "an essentially free and unconstrained choice of its maker. . . ."{38}

Until the United State's Supreme Court's 1986 decision in Colorado v. Connelly,{39} it was generally assumed that such confessions were excludable as a matter of federal due process:

Viewing the voluntariness test in terms of its underlying values . . . it may be said that the objective of the test is to bar admission of those confessions (i) which are of doubtful reliability because of the practices used to obtain them; (ii) which were obtained by offensive police practices even if reliability is not in question (for example, where there is strong corroborating evidence); or (iii) which were obtained under circumstances in which the defendant's free choice was significantly impaired, even if the police did not resort to offensive practices.{40}

Connelly, which approved admission of an involuntary confession induced by "command hallucinations," without police coercion, held that the third of these categories was constitutionally insignificant. The Court saw no basis for exclusion absent "the crucial element of police overreaching[,]"{41} although mental condition remains "relevant to an individual's susceptibility to police coercion,"{42} and police may not exploit a suspect's mental illness to obtain a confession.{43}

Connelly has been sharply criticized,{44} and its impact on article 10 is an open question.{45} A pre-Connelly Vermont Supreme Court opinion, State v. Harvey,{46} excluded a confession by a mentally ill person on findings that the state had not shown a knowing and intelligent waiver of rights,{47} and explicitly held - but only as a matter of federal law - that no coercion need be shown to render a confession inadmissible.{48} Some indication that the article 10 rule may not follow Connelly can be derived from early "private confession" cases. Connelly anchored the fifth amendment's self-incrimination clause in the deterrence of official misconduct, and by way of illustration noted that "[t]he most outrageous behavior by a private party to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. . . ."{49} Whether or not this statement accurately reflects previous federal law,{50} it is not a fair characterization of article 10.{51}

§ 3.05

- Proof of Voluntariness

a. The Totality of Circumstances Test

Except for cases governed by special per se rules{52} voluntariness is determined by examination of the "totality of circumstances" surrounding the confession.{53} These circumstances include not only the conduct of the interrogation, but the particular characteristics of the accused, including his or her "experience, education, background [and] intelligence," as well as the accused's capacity to understand his or her rights "and the consequences of waiving those rights."{54} This all-inclusive inquiry has been criticized as vague, uncertain in application, and tending to facilitate "pro-police rulings" at trial and on appeal.{55}

b. Burden and Standard of Proof

Under the fifth amendment it is the prosecution's burden to prove that an offered confession is voluntary by a preponderance of the evidence.{56}

The standard governing a judge's initial decision on admissibility is the same under article 10.{57} Under Vermont practice, however, once that initial decision has been made the question of voluntariness is submitted to the jury on instructions not to rely on it unless it finds it to be voluntary.{58} The jury's determination of voluntariness must be made beyond a reasonable doubt.{59}

The United States Supreme Court sees voluntariness as a question of law, and reviews voluntariness rulings de novo.{60} The Vermont court, by contrast, treats voluntariness as a fact question and will uphold a trial court's decision "unless the ruling is unsupported by the evidence or clearly erroneous."{61} Anomalously, defendants can therefore obtain broader review of voluntariness rulings in federal court (by petitions for habeas corpus or certiorari) than they can in the state system.

§ 3.06

The Miranda Rules, State v. Brunelle,

and the Public Defender Statute

Pretrial confessions with their attendant voluntariness problems are commonly made in the context of custodial interrogation - police questioning following an arrest or other significant restraint of liberty - and these are the cases to which the special warning and waiver rules of Miranda v. Arizona{62} and its progeny apply, as a "prophylaxis" against the "compulsion inherent in custodial surroundings. . . ."{63}

§ 3.07

- The Public Defender Statute

The Miranda rules are partly restated in Vermont's public defender statute.{64} The statute requires that anyone "who is being detained by a law enforcement officer without charge or judicial process" must be advised of his or her right "to be represented by an attorney and the right of a needy person to be represented at public expense,"{65} and, absent a waiver or other representation, requires notice to a public defender, with financial eligibility to be determined at a later date.{66} While the statute does not explicitly provide for suppression, "the policy reasons underlying Miranda and its subsequent cases require suppression of any statement obtained otherwise than by statutory compliance."{67}

The statute is broader than Miranda in at least one respect. While the Miranda rules are specifically aimed at interrogation (i.e., procedures designed to elicit testimonial evidence), the statute has no such limitation and has been held to require advice in connection with nontestimonial custodial procedures.{68}

§ 3.08

- State v. Brunelle

The Miranda rules are also requirements of article 10, as the Vermont court held without elaboration in State v. Brunelle.{69} The extent to which "Brunelle rules" may differ from the federal requirements is terra incognita.

§ 3.09

Official Interrogation

The Miranda rules and their state law counterparts have no application to interrogations conducted by private parties.{70} The nonofficial character of the interrogator may be a factual issue. Private security guards, working at the direction of, or in close cooperation with, the police, arguably should be treated as police proxies.{70.5}

§ 3.10

The Warnings

The defendant must be warned (1) that he has the right to remain silent; (2) that any statement he makes can be used as evidence against him; (3) that he has the right to the presence of counsel during questioning; and (4) that if he cannot afford an attorney an attorney will be appointed for him before questioning.{71} These warnings are an "absolute prerequisite" to questioning.{72}

Variations in form are permissible but not variations in substance.{73} In Duckworth v. Eagan{74} the court held that otherwise adequate warnings were sufficient notwithstanding the addendum, "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court."

On the other hand, because Miranda guarantees the right to counsel's presence during questioning, it is not enough to advise the defendant that he has the right to "contact" a public defender before questioning.{75}

§ 3.11

Custody

Miranda warnings must be given whenever the suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way."{76} Whether or not questioning is "custodial" can be a significant issue. "[I]ncommunicado interrogation of individuals in a police-dominated atmosphere"{77} at the police station or elsewhere - the setting for which Miranda warnings were principally intended - is obviously custodial.{78} Consensual interchanges in public places are just as clearly noncustodial. Problems arise in the intermediate cases, and the result will depend on the "compulsive aspect" of the interchange.{79}

The test as originally formulated by the Vermont court was "whether the defendant could reasonably have believed he was not free to leave[,]"{80} a standard which would apply to restraints (such as Terry stops) falling short of full-scale custody. Subsequent cases narrowed the "free to leave" standard. In California v. Beheler{81} the United States Supreme Court equated custody with a "`formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." The court reiterated that standard in subsequent cases.{82}

Citing Beheler and Berkemer, the Vermont court reformulated its definition of custody in State v. Willis{83} as follows:

Henceforth, in determining when a suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way," Miranda, supra, 384 U.S. at 444, our courts should make an objective inquiry into the totality of the circumstances to determine if a reasonable person would believe he or she were free to leave or to refuse to answer police questioning. A brief detention or Terry stop . . . , however, does not require Miranda warnings. . . . Trial courts should be mindful of situations approximating "incommunicado interrogation of individuals in a police-dominated atmosphere," Miranda, supra, 384 U.S. at 445, or the "functional equivalent of a formal arrest."

This formulation is anything but precise, and it would be wrong to read Willis as holding that all Terry stops are noncustodial for Miranda purposes. The question turns on such factors as the nature of the stop, including the duration of confinement, location (inside or outside, in an area accessible to others), the character of the police presence (number of officers, display of weapons), and time of day. The fact that the police investigation has focused on the suspect does not alone require warnings{84} but the degree of suspicion or investigatory focus may be relevant "to the extent that either contributed to the suspect's reasonable appraisal of his situation."{85}

a. In the Home

In State v. Willis the police went to the suspect's house in the afternoon, suspecting that a homicide had occurred, and were told by the defendant's father that the defendant "told me he killed some girl[.]" Defendant entered the room, and later accompanied the officers outside, where he was asked, "You want to show us where it is?" The court held that the encounter was not custodial.{86} In State v. Mecier,{87} the police barricaded the defendant in his home and spoke to him by phone without giving him Miranda warnings. The Vermont court held that the conversations were admissible because the defendant was not in custody, inasmuch as he "was barricaded in his own house with complete freedom of movement."{88} In other circumstances, questioning in a suspect's home can be custodial.{89}

b. On the Road

Roadside questioning of a motorist is ordinarily noncustodial.{90} Questioning in a police cruiser has also been held to be noncustodial, despite the incommunicado and police-dominated nature of such interrogations.{91}

c. In a Police Station

Questioning in a police station of a person voluntarily present pursuant to a police request can be noncustodial.{92} A request to come to the police station for questioning, accompanied by advice that the suspect "had to" come with the officers, together with other coercive circumstances (the late hour, refusal to permit others to be present), supports a finding of custody.{93}

An interview between a probationer and his probation officer is held to be noncustodial, even if the probationer is required to be present.{94}

The test for "custody" under the Vermont Constitution was not decided by Willis{95} and it remains an open question. In State v. Zumbo{96} the court acknowledged that the Vermont Constitution might require warnings "in circumstances where the federal constitution would not[,]" but refused to find on the record presented that roadside questioning, lawful under Berkemer v. McCarty, violated Brunelle.

§ 3.12

Interrogation

The Miranda rules regulate police "interrogation." Volunteered statements, statements that are "freely and voluntarily given without any compelling influences" are admissible.{97}

Interrogation is defined as "express questioning or its functional equivalent[,]" that is to say, "words or actions on the part of 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."{98} Interrogation therefore need not be in the form of a question, so long as it is likely to elicit such a response. On the other hand, police communications which are not likely to elicit an incriminating response do not count as "interrogation" under Miranda, even if they are questions. Two common examples of questioning which is not "interrogation" are "booking" questions, asking for personal identification data such as name and address, and questioning in connection with nontestimonial procedures, such as dexterity and breath tests. Incriminating responses obtained in the course of such questioning, whether testimonial or nontestimonial, are not excluded by Miranda.{99} Of course, the "booking" exception does not give the police carte blanche. Incriminatory questioning is barred by Miranda even if it occurs during the booking process.{100} In particular circumstances, even questions ostensibly asking for identification information may in fact be designed or likely to elicit incriminatory responses.{101}

§ 3.13

Waiver of Rights - The Showing of Waiver

Miranda requires a showing that the suspect knowingly, intelligently, and voluntarily waived the right to counsel and the right against self-incrimination. A "heavy burden" rests on the prosecution to show such a waiver, and waiver will not be presumed from the suspect's silence in the face of warnings, or the fact that a confession was obtained.{102} On the other hand, an express statement that the suspect is willing to talk and does not want a lawyer "could" constitute a waiver.{103}

The waiver must be "specifically" made{104} but an explicit statement of waiver is not necessary: a constitutionally sufficient waiver may be shown by the suspect's actions and words.{105} The Vermont court has not decided whether implicit waivers are sufficient under the state constitution,{106} but it has approved an implicit waiver under the public defender statute, on the ground that compliance with Miranda is ipso facto compliance with the statute.{107}

Whether explicit or implicit, Miranda's "heavy burden" and the general presumption against waiver requires an unambiguous waiver of rights.{108} Ambiguity may be in the eye of the beholder, however. In State v. Towne{109} police arrested a murder suspect on a stale out-of-state warrant, gave him Miranda warnings and asked, "With these rights in mind, do you want to talk to me now?" He responded, "Yes[,] to find out what it's about."{110} The Vermont court held that the defendant had not intended to limit the subject of the interrogation (to "what it's about") but rather "expressed unambiguously a willingness to speak."{111}

§ 3.14

- The Requirement of a Writing

It is not necessary under federal law that the waiver be in writing,{112} but a writing "or other record" is required for interrogations governed by the public defender statute.{113} The record must be one that is created by the suspect; a police officer's written memorandum that advice was given and a waiver obtained is not good enough.{114}

§ 3.15

- Voluntary, Knowing, and Intelligent

The validity of a Miranda waiver is judged by the same "totality of circumstances" test by which the voluntariness of confessions is judged.{115} The standard of proof of waiver, under both the fifth amendment and article 10, is proof by a preponderance of the evidence.{116}

a. Voluntariness

The waiver must be voluntary. Miranda holds that any evidence that the suspect was "tricked" or "cajoled" into waiving his or her rights will render a subsequent confession inadmissible.{117} Promises of leniency, which under the pre-Miranda caselaw were sufficient to exclude confessions as involuntary,{118} should have the same effect on waivers.

b. Intelligent Knowledge

The totality test requires inquiry into the suspect's personal characteristics, including his "age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and consequences of waiving those rights."{119}

The Supreme Court has held that police need not inform their suspect of the subject of the proposed interrogation.{120} Keeping the suspect in the dark is "not relevant to determining whether the suspect voluntarily, knowingly and intelligently waived his Fifth Amendment privilege."{121} Although the Vermont Supreme Court seems to have reached the same conclusion under article 10,{122} prior caselaw suggests that such tactics have some relevance in deciding if the waiver is valid.{123} Police misinformation is distinguishable from a failure to give information and could constitute the sort of "trickery" forbidden by Miranda.{124} A refusal to inform, in the face of the suspect's request, may also be distinguishable from a mere failure to inform.{125}

The requirement that waivers be informed is applied less strictly when the right being waived is granted only by statute. In two recent cases the Vermont court has approved waivers under the public defender statute despite defective advice concerning the nature of the right waived, absent a showing that the defendant was prejudiced, that is, that he would have acted differently with counsel's advice.{126}

Until Colorado v. Connelly{127} it seemed clear that a suspect's mental illness could negate the voluntariness of his Miranda waiver.{128} There is some basis for arguing even after Connelly that a Miranda waiver, even if not "involuntary," can be rendered "unintelligent" or "unknowing" by the accused's mental state.{129} In State v. Keith the Vermont court recognized that Connelly does not govern the Miranda waiver question, and acknowledged that a suspect's intoxication during custodial interrogation "is an important factor that bears on the waiver's validity,"{129.5} while noting as a practical matter that "courts have generally not suppressed statements based soley on the defendant's claim of being under the influence of drugs or alcohol."{129.10}

§ 3.16

The Interested Adult Rule

A waiver of Miranda rights by a juvenile in custodial interrogation is invalid under article 10 unless the juvenile has an opportunity to confer with an "interested adult," that is, an adult who is "genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, for example, a parent, legal guardian, or attorney representing the juvenile."{130} The rule applies to all minors (i.e., everyone under eighteen years of age),{131} but is restricted to questioning in custody.{132}

§ 3.17

Assertion of Rights

Once the warnings have been given, "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."{133} A suspect does not lose his rights by "unartful assertion[,]"{134} and even ambiguous conduct may be construed as an assertion of Miranda rights.{135} The suspect's words should be "understood as ordinary people would understand them."{136} When the meaning of the response is unclear, most courts hold that police questioning must be restricted to determining whether an assertion of rights was intended.{137}

Miranda requires the suspect himself to assert his rights; they cannot be invoked by proxy, and the suspect need not be informed that a third person is trying to arrange for counsel, or that counsel is trying to gain access to the interrogation.{138}

A request to speak with someone other than a lawyer does not constitute an invocation of the right to counsel.{139} It may, however, be construed as an assertion of the right to remain silent.{140}

§ 3.18

Waiver Following Assertion of Rights

When the suspect asserts a right to counsel the police may not thereafter question him unless he is provided with counsel, or unless he "reinitiates" communications with them and waives his rights.{141} This is so even if the police have allowed him to speak with an attorney by phone, because Miranda's right to counsel includes the right to counsel's presence during interrogation.{142} On the other hand a spontaneous statement, even after assertion of rights, is admissible because it is not the product of unlawful interrogation.{143}

The ban on further uncounselled interrogation is absolute: police may not question their suspect even about a different crime.{144}

For no apparent reason, a suspect's assertion of the right to remain silent is treated less absolutely than his request for counsel. A request to cut off questioning must be "scrupulously honored" and "fully respected," but the police are not absolutely barred from reinitiating their interrogation, at least if the defendant is rewarned of his rights and is questioned on a different subject.{145}

§ 3.19

Exceptions to the Miranda Requirement -

The Public Safety Exception

In New York v. Quarles,{146} the court staked out an exception of the Miranda rule when police questions are "reasonably prompted by a concern for the public safety."{147} The test is objective, that is, whether there exists "an objective reasonable need to protect the police or the public from any immediate danger."{148}

The Vermont court refused to recognize a similar exception to Miranda's exclusionary rule in State v. Willis,{149} finding it unnecessary to reach the question. The existence of a public safety exception to the state constitutional Miranda requirement{150} or under the public defender statute, is an undecided question.

§ 3.20

- The Booking Exception

It is not clear whether the inapplicability of Miranda to routine "booking" questions{151} constitutes a true "exception" to the Miranda rules. To the extent that questions about a suspect's name, address, and so on, are not likely to elicit incriminating responses, they do not constitute "interrogation" and the Miranda rules are inapplicable by definition. It is not uncommon, however, for such innocuous facts as name and address to have very concrete incriminatory uses, for example, to unmask an alias, or to ascertain an address to be searched. Pennsylvania v. Muniz leaves unclear whether such questioning is permissible as an "exception" to Miranda, even when incriminatory information is sought or reasonably likely to be elicited.{152}

§ 3.21

Statements Obtained in Violation

of the Sixth Amendment

Once criminal proceedings have been commenced and the sixth amendment right to counsel has attached the ability of the police to question their suspect is limited further. The sixth amendment right attaches "at or after the initiation of adversary judicial criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."{153} The defendant thereafter has a right to counsel at all "critical stages" of the case.{154} When the sixth amendment right has attached, the police have "an affirmative obligation to respect and preserve the accused's choice" to deal with the prosecution through counsel, and to avoid conduct which circumvents counsel's protection.{155}

Whether the state constitutional right to counsel embodied in chapter I, article 10, may be more extensive than the sixth amendment right is an open question.{156}

§ 3.22

- Custodial Interrogation

A request for counsel at an arraignment or similar proceeding constitutes a presumptive invocation of Miranda's fifth amendment right to counsel at interrogation.{157} The mere appointment of counsel, however, unaccompanied by a request, does not constitute such an invocation.{158} Once a request has been made, police are barred from questioning the defendant without counsel unless (as in an Edwards situation) the defendant reinitiates communications and waives counsel's presence.{159} In Michigan v. Harvey{160} the court wrote that Jackson had superimposed Edwards's fifth amendment rule onto the sixth amendment. Unlike the Edwards rule, however, a request for sixth amendment counsel does not prevent the police from initiating questioning on a subject other than the crime charged, unless the accused (by himself or through counsel) specifically expresses "a desire for the assistance of an attorney in dealing with custodial interrogation by the police."{161} In State v. Preston,{162} decided before McNeil, the Vermont court reached the opposite result, holding that a defendant who had requested counsel at arraignment on a fugitive charge involving crime A, could not later be interrogated on unrelated crime B. Although Preston's holding is no longer viable under the fifth and sixth amendments, the court could reach the same result under article 10.

§ 3.23

- "Deliberate Elicitation"

The entry of sixth amendment counsel on the scene restricts the police in ways that Miranda, which deals only with custodial interrogation, does not. In Massiah v. United States,{163} the police electronically monitored the defendant's conversations with a codefendant, after the defendant had been charged and released and after he had retained counsel. The Court held that the police violated the defendant's sixth amendment right to counsel "when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel."{164} Such "deliberate elicitation" occurs when police either create a situation likely to induce the defendant to make an incriminating statement, or knowingly exploit such a situation.{165} The sixth amendment is violated when the prosecution "obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent."{166} In State v. Brown{167} the Vermont court held that a criminal admission, prompted by a probation officer's general question concerning the status of pending charges, was not "deliberately elicited" in violation of the sixth amendment. In Kuhlman v. Wilson{168} the United States Supreme Court held that the placement of an informer in the defendant's cell as a passive "listening post" was also not a sixth amendment violation.

Strangely, given the preferred constitutional status of sixth amendment counsel, the deliberate elicitation standard may be less restrictive of the police than Miranda's ban on custodial "interrogation" - defined as "words or actions . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect."{169} The Vermont court has not decided whether such a "reasonable foreseeability" standard should be the test under article 10 and the public defender statute.{170}

§ 3.24

- Waiver of Sixth Amendment Counsel

It is not clear to what extent the standards that govern waiver of Miranda's fifth amendment right to counsel also govern waivers of sixth amendment counsel. In Patterson v. Illinois{171} the Court wrote "as a general matter" that "whatever warnings suffice for Miranda's purposes will also be sufficient in the context of post-indictment questioning." But because the state in a postcharge context is under a special duty not to circumvent the attorney-client relationship, the kind of waiver approved in Moran v. Burbine{172} would not pass muster once the accused has retained or accepted appointment of sixth amendment counsel.{173}

§ 3.25

The Exclusionary Rules

The scope of the exclusionary rule for suppressed confessions and admissions depends on the grounds for suppression. The exclusionary rule for involuntary confessions is absolute or nearly so. Voluntary confessions suppressed for Miranda and sixth amendment violations are admissible under federal law for a broad range of collateral uses. The Vermont court has yet to decide the permissible uses of voluntary confessions obtained in violation of the Vermont Constitution, or state statutes and rules.

§ 3.26

- Involuntary Confessions

Involuntary confessions are inadmissible for any purpose in a criminal trial,{174} although exclusion is not a foregone conclusion in proceedings that are technically noncriminal.{175} In contrast to statements obtained in violation of the Miranda rules{176} and statements obtained in violation of the sixth amendment right to counsel,{177} an involuntary confession may not be used even as impeachment. The rule seems to be absolute, barring such confessions in proceedings where Miranda violations do not have the same effect (e.g., at preliminary hearings, or at sentencing).

The direct and indirect fruits of an involuntary confession are of course suppressible on general principles, absent "attenuation" of the taint and a showing of an "independent source."{178}

An involuntary confession ordinarily taints any subsequent confession the defendant may make. In United States v. Bayer{179} Justice Jackson wrote,

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.{180}

The fact that Miranda warnings precede the second confession is not sufficient to insulate it from the taint of the first, at least on a showing of a "close relationship in time and circumstances between the two confessions. . . ."{181}

Badger required suppression, under the state constitution, of evidence derived from an involuntary confession, when the evidence was "a direct product" of the illegal confession, "there were no intervening events to purge [the] taint[,]" and "the pattern of police misconduct . . . continued unabated."{182} Badger's language reflects the Wong Sun test, but it is an open question whether something stricter than Wong Sun is required when the "primary illegality" is an involuntary confession.{183}

Until Arizona v. Fulminante{184} introduction of an involuntary confession at trial was per se reversible error; the conviction could not be saved on a determination that the confession was "harmless."{184.5} Fulminate reversed that long-standing precedent. The Vermont court has not decided whether article 10 also permits a finding of harmless error in such cases.{184.10}

§ 3.27

- Miranda/Brunelle Violations

Unlike the near-absolute bar on admission of involuntary statements, there are numerous permissible uses for confessions that are the product of Miranda violations. It should be noted, however, that a Miranda violation may itself render a subsequent statement involuntary, for example, when police tell the suspect that his refusal to speak without counsel will count against him in subsequent proceedings.{185}

a. Impeachment of Defendant's Testimony

Confessions inadmissible as substantive evidence because of a Miranda violation are admissible, as a matter of federal law, to impeach the defendant's trial testimony,{186} whether the impeachable testimony is elicited on direct examination or "made in response to proper cross-examination reasonably suggested by the defendant's direct examination. . . ."{187}

The state constitutional rule is marginally more restrictive. Evidence suppressed for a Miranda violation "is unavailable to the State for impeachment purposes except when it is clear that the defendant has testified during direct examination in a manner contradictory to the suppressed evidence."{188} Limiting use of the suppressed statement to impeachment of direct testimony, the Vermont court held,

will achieve a fair balance between defendant's right to testify on his or her own behalf and the State's interest in preventing perjury. To permit the use of suppressed evidence to impeach testimony first brought out on cross-examination would upset this balance and impose an untenable chilling effect on defendant's right to testify, in violation of Chapter I, Article 10 of the Vermont Constitution.{189}

The limitation on impeachment, however, does not apply to "collateral" matters, that is, facts "outside the controversy or . . . not directly connected with the principal matter or issue in dispute."{190} As to such facts,

where defendant testifies on direct or cross-examination to facts not bearing directly on the crime for which he or she is on trial, it remains within the discretion of the trial court whether suppressed evidence that relates only to such collateral matters, and not to the crime charged, may be admitted for impeachment purposes.{191}

The Harris/Brunelle rule is limited to the defendant's own testimony. A defendant's suppressed statement may not be used to impeach the testimony of another witness.{192}

b. Other "Door Opening" Uses

In State v. Kilborn{193} the Vermont court held that a suppressed admission could not be used "for rebutting inferences raised by defense counsel."{194} In Kilborn the arresting officer in a drunk driving case testified on cross-examination that drivers sometimes operate erratically without being under the influence, because they are sick or injured. The trial judge allowed the state, on redirect, to introduce the defendant's suppressed admissions that he was neither ill nor suffering from physical disabilities. The Vermont Supreme Court held that because the defendant had not testified "there was nothing to impeach[,]" and that the evidence should not have been admitted.{195} The court reached a different result in State v. Messier,{196} a sexual assault prosecution where the state had illegally compelled production of blood and hair samples. The hair samples did not match samples taken from the scene and were introduced by the defense. The court held that the prosecution was then properly permitted to introduce inculpatory evidence based on the blood samples, on the ground that the defendant's use of the hair samples had opened the door. Defendant's "selective use" of the suppressed evidence created an unfair inference "that the hair sample evidence coupled with the negative test results was the only body sample taken by the state."{197} Acknowledging its contrary holding in Kilborn, the court approved cases from other jurisdictions allowing use of suppressed evidence "to rebut an unfair inference raised on cross-examination of a prosecution witness. . . ."{198}

The continued viability of this holding is questionable in light of James v. Illinois,{199} tying the justification for impeachment use of illegally obtained evidence to the need to deter perjury by the defendant.

c. Exclusion of Derivative Evidence

The Wong Sun principle does not apply to one common "fruit" of Miranda violations: the subsequent "cat-out-of-the-bag" confession.{200} In Oregon v. Elstad{201} the Supreme Court held that a subsequent confession is not suppressible solely because the police had previously obtained a confession in violation of Miranda. "A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should [support a conclusion] that the suspect made a rational and intelligent choice whether to waive or invoke his rights. . . ."{202} The result might be different if the police "exploit the unwarned admission to pressure the [defendant] into waiving" his or her Miranda rights.{203}

The Vermont court has applied Elstad as a matter of federal law{204} but has yet to decide the admissibility of subsequent confessions or other derivative evidence under Brunelle and article 10.

d. Nontrial Uses

The federal "cost-benefit" approach to exclusionary rules, limiting the exclusionary remedy to proceedings in which the benefits of exclusion are shown to outweigh the costs, permits use of illegally obtained evidence in a number of proceedings other than criminal trials.{205} These holdings apply a fortiori to Miranda violations. For example, most courts hold that voluntary confessions obtained in violation of Miranda are admissible in probation revocation proceedings,{206} although a deterrence rationale would seem to support exclusion in such closely related quasi-criminal proceedings.

State v. Oakes{207} disapproves the cost-benefit reasoning of the federal cases. Whatever the scope of the state constitutional exclusionary rule, a question left undecided in Oakes, the burden rests on the prosecution to show "compelling reasons" for admission of illegally obtained evidence.{208}

§ 3.28

- Sixth Amendment Violations

The scope of the exclusionary rule for confessions suppressed on sixth amendment grounds may be different from Miranda's exclusionary rule. In Michigan v. Harvey{209} the Supreme Court approved impeachment use of statements obtained in violation of the sixth amendment rule of Michigan v. Jackson{210} but characterized the Jackson rule as merely "prophylactic." Harvey left open the question whether a postcharge confession obtained without a waiver of counsel as judged by "traditional standards" could be used for impeachment.{211} Both questions (impeachment use of Jackson violations and impeachment use of confessions obtained in violation of "traditional" waiver standards) are open under the state constitution.

§ 3.29

- Statutory Violations

To the extent that the public defender statute reiterates and enforces the Miranda/Brunelle requirements, violations of the statute require exclusion to the same extent that the constitutional caselaw requires it. As noted above{212} although the statute does not itself provide for suppression, "the policy reasons underlying Miranda and its subsequent cases require suppression of any statement obtained otherwise than by statutory compliance."{213} Thus, violation of the statute's written waiver-of-counsel requirement requires exclusion of statements which Miranda would admit.{214}

Other statutory violations also require suppression of confessions.{215} The court has not decided whether statute or rule violations will invariably require suppression of a causally connected confession{216} but in no case has it sanctioned the admission of a confession (or other evidence) obtained by means of a statutory illegality.

ENDNOTES

1. Schmerber v. California, 384 U.S. 757, 761 (1966); State v. Picknell, 142 Vt. 215, 225-28 (1982).

2. Schmerber v. California, 384 U.S. 757, 762-65 (1966); State v. Pierce, 120 Vt. 373, 376 (1958) (blood test)

3. State v. Picknell, 142 Vt. 215, 225-28 (1982).

4. State v. Picknell, 142 Vt. 215, 226 (1982) (dictum).

5. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Such appropriations of nontestimonial evidence may, however, implicate the search or seizure protections of the fourth amendment and article 11. See Schmerber v. California, 384 U.S. 757, 766-72 (1966). V.R.Cr.P. 41.1 provides detailed mechanisms for compelling nontestimonial evidence on court order. See § 2.36, supra.

6. South Dakota v. Neville, 459 U.S. 553, 561 (1983).

7. See 23 V.S.A. § 1202(b).

8. South Dakota v. Neville, 459 U.S. 553, 562 (1983); Schmerber v. California, 384 U.S. 757, 765 n.9 (1966). Such refusals, regardless of their testimonial content, are held to be admissible under the fifth amendment and article 10 on the ground that the evidence has not be unlawfully compelled. Neville, 459 U.S. at 564; State v. Brean, 136 Vt. 147, 151-52 (1978).

9. See Pennsylvania v. Muniz, 496 U.S. 582 (1990); State v. Benware, No. 91-406 (Vt. Sept. 9, 1992) (unpublished) (motorist responded to Miranda warning by putting finger in his ear; held admissible demeanor evidence).

10. Suppression may depend on the type of illegality. When the interrogation is illegal because of an unlawful arrest, "demeanor" observations should be treated no differently from any other observed evidence. State v. Emilo, 144 Vt. 477, 483 (1984) (suppressing police identification of illegally arrested driver). Demeanor evidence that is a byproduct of an involuntary confession should also be suppressible. Whether demeanor evidence produced by interrogation in violation of Miranda should be suppressed as a fruit of the Miranda violation was raised but not decided in State v. Siergiey, 155 Vt. 78, 82-84 (1990), the Court holding that demeanor evidence obtained in the course of lawful interrogation was admissible.

11. Miranda v. Arizona, 384 U.S. 436, 476-77 (1966). A defendant's exculpatory statements constitute "admissions" under V.R.E. 801(d)(2), so long as they are contrary to his or her position at trial. See State v. Hugo, 156 Vt. 339, 343 (1991).

12. Doyle v. Ohio, 426 U.S. 610, 617 (1976); Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966); State v. Percy, 149 Vt. 623, 627 (1988); State v. Mosher, 143 Vt. 197, 204-06 (1983).

13. Wainwright v. Greenfield, 474 U.S. 284 (1986); State v. Percy, 149 Vt. 623, 626-28 (1988). But see State v. Benware, No. 91-406 (Vt. Sept. 9, 1992) (unpublished) (admitting evidence of defendant's silent gesture as behavior evidence).

14. State v. Mosher, 143 Vt. 197, 205 n.1 (1983).

15. State v. Hunt, 150 Vt. 483, 499-501 (1988); State v. Squires, 147 Vt. 430, 431 (1986).

16. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

17. State v. Hunt, 150 Vt. 483, 500 (1988) (quoting State v. Mosher, 143 Vt. 197, 204 (1983)).

18. Fletcher v. Weir, 455 U.S. 603, 606 (1982); Jenkins v. Anderson, 447 U.S. 231, 239 (1980).

19. 19.

20. See V.R.E. 512(a) (claim of privilege "not a proper subject of comment by judge or counsel" and "[n]o inference may be drawn therefrom").

21. See State v. Benneig, 146 Vt. 391, 398 (1985) (defense counsel could not argue on basis of witness's assertion of privilege). Cf. State v. McElreavy, 157 Vt. 18, 22-24 (1991) (state could argue consciousness of guilt inference from defendant's failure to attend civil deposition).

22. Article 10 likewise prohibits the taking and use of involuntary confessions. State v. Badger, 141 Vt. 430, 450 (1982).

23. See §§ 2.26, 2.48, supra (voluntariness of consent searches and "consent arrests").

24. 384 U.S. 436 (1966).

25. See § 3.13, infra.

26. Malloy v. Hogan, 378 U.S. 1, 8 (1964). State v. Caron, 155 Vt. 492, 505 (1990) (quoting State v. Zehner, 142 Vt. 251, 253 (1982)). See also State v. Austin, 155 Vt. 531, 535 (1990).

27. Coulombe v. Connecticut, 367 U.S. 568, 602 (1961); State v. Austin, 155 Vt. 531, 535 (1990); State v. Caron, 155 Vt. 492, 505 (1990); State v. Zehner, 142 Vt. 251, 253 (1982).

28. Coulombe v. Connecticut, 367 U.S. 568, 602 (1961) (citation omitted).

29. State v. Walker, 34 Vt. 296, 301 (1861) (quoting State v. Phelps, 11 Vt. 116 (1839)). See also State v. Day, 55 Vt. 510 (1883).

30. 168 U.S. 532, 542-43 (1897).

31. Arizona v. Fulminante, 111 S. Ct. 1246 (1991).

32. State v. Comes, 144 Vt. 103, 108 (1984); State v. Badger, 141 Vt. 430, 450 (1982).

33. State v. Beckley, 157 Vt. 446, 448 (1991).

34. State v. Beckley, 157 Vt. 446, 448-49 (1991).

35. State v. Beckley, 157 Vt. 446, 449 (1991).

36. 155 Vt. 531 (1990).

37. State v. Austin, 155 Vt. 531, 535 (1990).

38. Coulombe v. Connecticut, 367 U.S. 568, 602 (1961). See Townsend v. Sain, 372 U.S. 293, 309 (1963) ("absence of improper purpose on the part of the questioning officers" was held irrelevant); Blackburn v. Alabama, 361 U.S. 199 (1960).

39. 479 U.S. 157 (1986).

40. 1 LaFave and Israel, Criminal Procedure § 6.2, at 444 (1984).

41. Colorado v. Connelly, 479 U.S. 157, 163 (1986).

42. Colorado v. Connelly, 479 U.S. 157, 165 (1986).

43. Knowledge of the suspect's mental illness does not necessarily establish exploitation. Compare Colorado v. Connelly, 479 U.S. 157, 161 (1986) (police had "no indication whatsoever that respondent was suffering from any kind of mental illness") with State v. Robinson, No. 90-549, slip op. 9-10 (Vt. April 3, 1992) ("we find nothing in Connelly to suggest that police coercion is automatically present if the officer knows of the defendant's mental condition").

44. See L. Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 Wash. U.L.Q. 59 (1989); G. Dix, Federal Constitutional Confession Law: the 1986 and 1987 Supreme Court Terms, 67 Tex. L. Rev. 234 (1989).

45. See State v. Robinson, No. 90-549, slip op. 9 (Vt. April 3, 1992) (argued but not decided); State v. Caron, 155 Vt. 492, 506 n.4 (1990) (same).

46. 145 Vt. 654 (1985).

47. State v. Harvey, 145 Vt. 654, 657-58 (1985). Intoxication could have the same effect. State v. Clark, 143 Vt. 11, 12 (1983).

48. State v. Harvey, 145 Vt. 654, 658 (1985) (citing Blackburn v. Alabama, 361 U.S. 199 (1960)). Connelly "effectively overruled" Harvey. State v. Robinson, No. 90-549, slip op. 9 (Vt. April 3, 1992).

49. Colorado v. Connelley, 479 U.S. 157, 166 (1986).

50. See Colorado v. Connelley, 479 U.S. 157, 176 n.1 (1986) (dissenting opinion)).

51. Both State v. Phelps, 11 Vt. 116 (1839), and State v. Walker, 34 Vt. 296 (1861), involved confessions coerced by private persons. State v. Badger, 141 Vt. 430, 450 (1982), cites Phelps as a precursor of article 10's voluntariness rule.

52. E.g., those covered by Miranda, or cases of "inherently coercive" police conduct, see Ashcroft v. Tennessee, 322 U.S. 143, 154 (1944); or perhaps situations where the defendant "has been influenced by an overt threat or promise," State v. Phelps, 11 Vt. 116 (1839).

53. Haynes v. Washington, 373 U.S. 503, 513 (1963); State v. Roberts, No. 91-472, slip op. 3 (Vt. June 18, 1993). See Arizona v. Fulminante, 111 S. Ct. 1246, 1251-52 (1991), approving a state court's application of the totality test. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (totality test for voluntariness of consent search).

54. Fare v. Michael C., 442 U.S. 707, 725 (1979); State v. Malinowsky, 148 Vt. 517, 522 (1987).

55. 1 LaFave and Israel, Criminal Procedure § 6.2, at 450 (1984).

56. Lego v. Twomey, 404 U.S. 477, 489 (1972); State v. Robinson, No. 90-549, slip op. 8 (Vt. April 3, 1992); State v. Brunell, 150 Vt. 388, 390 (1988); State v. Clark, 143 Vt. 11, 12 (1983); State v. Badger, 141 Vt. 430, 439 (1982).

57. State v. Caron, 155 Vt. 492, 502-03 (1990) (rejecting a reasonable-doubt standard for proof of voluntariness).

58. State v. Caron, 155 Vt. 492, 503 (1990) (citing State v. Harbaugh, 132 Vt. 569, 579 (1974)). Such instructions cannot be easy to follow if the jury thinks the confession is reliable notwithstanding its involuntariness.

59. State v. Caron, 155 Vt. 492, 503 (1990) ("Whatever the outcome of this appeal, the jury will continue to determine voluntariness by the higher standard of proof. We accept the critical importance that this determination be made accurately, but remain unconvinced that the use of [the reasonable-doubt] standard by the judge is necessary to that accuracy.").

60. Miller v. Fenton, 474 U.S. 104 (1985).

61. State v. Robinson, No. 90-549, slip op. 9 (Vt. April 3, 1992). See also State v. Gilman, No. 90-051, slip op. 4 (Vt. March 27, 1992); State v. Mecier, 138 Vt. 149, 154 (1980).

62. 384 U.S. 436 (1966).

63. Miranda v. Arizona, 384 U.S. 436, 458 (1966).

64. 13 V.S.A. § 5234.

65. 13 V.S.A. § 5234(a)(1).

66. 13 V.S.A. § 5234(a)(2); State v. Nicasio, 136 Vt. 162, 166 (1978).

67. State v. Nicasio, 136 Vt. 162, 166 (1978).

68. State v. Duff, 136 Vt. 537 (1978) (read in pari materia with DUI implied consent law public defender statute gives right to be informed of right to consult with counsel before deciding whether to submit to chemical test).

69. "[E]vidence obtained in violation of Miranda is also in violation of the privilege against self-incrimination in Article 10 of the Vermont Constitution." State v. Brunelle, 148 Vt. 347, 355 n.11 (1987).

70. State v. McElreavy, 157 Vt. 18, 28-29 (1991) (Morse, J., concurring and dissenting). When the question is voluntariness, by contrast, state law excludes the confession even if the interrogator is not a state officer. See § 3.04, supra.

71. Miranda v. Arizona, 384 U.S. 436, 444, 479 (1966).

72. Miranda v. Arizona, 384 U.S. 436, 444 (1966).

73. See California v. Prysock, 453 U.S. 355 (1981).

74. 492 U.S. 195 91989).

75. State v. Kilborn, 143 Vt. 360, 363 (1983); State v. Shores, 143 Vt. 224, 226-28 (1983).

76. Miranda v. Arizona, 384 U.S. 436, 444 (1966). By contrast, a claim of involuntariness cannot depend on police custody. But see State v. Ladieu, No. 91-344, slip op. 2 (Vt. Nov. 25, 1992) (mem.) ("A statement made before defendant is in custody and before a Miranda warning is given cannot be considered involuntary") (dictum).

77. Miranda v. Arizona, 384 U.S. 436, 445 (1966).

78. See, e.g., State v. Badger, 141 Vt. 430, 434-35 (1982).

79. State v. Hohman, 136 Vt. 341, 349 (1978).

80. State v. Hohman, 136 Vt. 341, 349 (1978).

81. 463 U.S. 1121, 1125 (1983).

82. See Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988); Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (both approving roadside interrogation, without Miranda warnings, of motorists stopped on the highway).

83. 145 Vt. 459, 475 (1985).

84. Beckwith v. United States, 425 U.S. 341, 347 (1976); State v. Zumbo, 157 Vt. 589, 592-93 (1991).

85. State v. Hohman, 136 Vt. 341, 349 (1978).

86. State v. Willis, 145 Vt. 459, 476 (1985). See also Oregon v. Elstad, 470 U.S. 298 (1985) (questioning in suspect's home held noncustodial).

87. 138 Vt. 149 (1980).

88. State v. Mecier, 138 Vt. 149, 153 (1980).

89. Orozco v. Texas, 394 U.S. 325 (1969).

90. Pennsylvania v. Bruder, 488 U.S. 9 (1988); Berkemer v. McCarty, 468 U.S. 420 (1984); State v. Zumbo, 157 Vt. 589, 591-93 (1991); State v. Boardman, 148 Vt. 229, 231 (1987).

91. State v. Lancto, 155 Vt. 645 (1990); State v. Olson, 153 Vt. 226, 229-31 (1989); State v. Comes, 144 Vt. 103, 106-07 (1984) ("Although there may be factual situations in which police questioning of a person in a cruiser may be custodial in nature" record supported finding of no custody).

92. Oregon v. Mathiason, 429 U.S. 492 (1977); California v. Beheler, 463 U.S. 1121 (1983); State v. Gulley, 155 Vt. 65, 71-72 (1990); State v. Piper, 143 Vt. 468, 474-74 (1983).

93. State v. Brunell, 150 Vt. 388 (1988). See also State v. Mosher, 143 Vt. 197, 202-03 (1983) (defendant voluntarily went to police station, was warned, and asserted right to counsel; held that the assertion of rights could not be used against him).

94. Minnesota v. Murphy, 465 U.S. 420, 430 (1984); State v. Brown, 153 Vt. 263, 267 (1989).

95. State v. Willis, 145 Vt. 459, 475-76 n.4 (1985).

96. 157 Vt. 589, 592-93 (1991).

97. Miranda v. Arizona, 384 U.S. 436, 478 (1966); State v. Robinson, No. 90-549, slip op. 12 (Vt. April 3, 1992).

98. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

99. See Pennsylvania v. Muniz, 496 U.S. 582 (1990); State v. Robinson, No. 90-549, slip op. 11-12 (Vt. April 3, 1992); State v. Siergiey, 155 Vt. 78, 82-84 (1990).

100. Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990).

101. See, e.g., United States v. Hinckley, 672 F.2d 115, 125 (D.C. Cir. 1982) (suppressing demeanor evidence obtained during questioning which went well beyond normal booking procedures).

102. Miranda v. Arizona, 384 U.S. 436, 475 (1966).

103. Miranda v. Arizona, 384 U.S. 436, 475 (1966); State v. Malinowsky, 148 Vt. 517, 519 (1987).

104. Miranda v. Arizona, 384 U.S. 436, 470 (1966).

105. Tague v. Louisiana, 444 U.S. 469 (1980); North Carolina v. Butler, 441 U.S. 369, 373 (1979).

106. See State v. Malinowsky, 148 Vt. 517, 523 n.3 (1987).

107. State v. Caron, 155 Vt. 492, 510 (1990).

108. In State v. Hohman, 136 Vt. 341, 351 (1978), the defendant told police, after being warned, that he would "play it by ear." "The meaning of defendant's statement is at best, ambiguous," the Court wrote, "and in our judgment can in no way be said to constitute a knowing and intelligent waiver." Compare Connecticut v. Barrett, 479 U.S. 523 (1987) (no ambiguity in defendant's waiver).

109. No. 89-298 (Vt. May 22, 1992).

110. State v. Towne, No. 89-298, slip op. 16 (Vt. May 22, 1992).

111. State v. Towne, No. 89-298, slip op. 19 (Vt. May 22, 1992).

112. North Carolina v. Butler, 441 U.S. 369 (1979); State v. Breznick, 134 Vt. 261, 265 (1976). Cf. Connecticut v. Barrett, 479 U.S. 523 (1987) (defendant refused to make written statement but agreed to talk).

113. 13 V.S.A. § 5237.

114. State v. Caron, 155 Vt. 492, 511-12 (1990). The requirement applies only to waivers obtained by Vermont police. Lack of a writing does not invalidate a waiver from a Vermont suspect in custody in New York. Id. at 512-13. See also State v. Keith, No. 91-582, slip op. 8-9 (Vt. May 25, 1993).

115. Fare v. Michael C., 442 U.S. 707, 725 (1979); State v. Malinowsky, 148 Vt. 517, 520 (1987). See § 3.05, supra.

116. Colorado v. Connelly, 479 U.S. 157, 167-69 (1986); State v. Caron, 155 Vt. 492, 504 (1990).

117. Miranda v. Arizona, 384 U.S. 436, 476 (1966).

118. See § 3.03, supra.

119. Fare v. Michael C., 442 U.S. 707, 725 (1979); State v. Malinowsky, 148 Vt. 517, 520 (1987).

120. Colorado v. Spring, 479 U.S. 564 (1987).

121. Colorado v. Spring, 479 U.S. 564, 577 (1987).

122. State v. Towne, No. 89-298, slip op. 20 (Vt. May 22, 1992). The defendant's claim in Towne was based on the state constitution as well as federal due process; the Vermont court rejected it on the authority of Spring, without a separate state constitutional analysis.

123. State v. Mosher, 143 Vt. 197, 203 (1983).

124. Cf. State v. Towne, No. 89-298, slip op. 20 (Vt. May 22, 1992) (record does not indicate defendant was misled about grounds for arrest). The Spring Court reserved this question. 479 U.S. at 576 n.8.

125. Cf. State v. Towne, No. 89-298, slip op. 20 (Vt. May 22, 1992) (defendant never directly inquired about grounds for arrest). See, e.g., United States v. Wellman, 830 F.2d 1453, 1460 (7th Cir. 1987); United States v. Okwumba, 828 F.2d 950, 953 (2d Cir. 1987).

126. State v. Lynaugh, Nos. 91-030 and 91-159, slip op. 4 (Vt. Jan. 17, 1992); State v. Hamm, No. 91-031 (Vt. Sept. 15, 1991) (mem.).

127. 479 U.S. 157 (1986).

128. See Colorado v. Connelley, 479 U.S. 157, 173 (1986) (Blackmun, J., dissenting in part); State v. Harvey, 145 Vt. 654, 657-58 (1985).

129. See, e.g., People v. Bernasco, 562 N.E.2d 958, 960-66 (Ill. 1990).

130. In re E.T.C., 141 Vt. 375, 379 (1982).

131. State v. Hunt, 153 Vt. 483, 498 (1988); State v. Piper, 143 Vt. 468, 472-73 (1983).

132. State v. Piper, 143 Vt. 468, 473 (1983).

133. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

134. State v. Mosher, 143 Vt. 197, 203 (1983).

135. See State v. Mosher, 143 Vt. 197, 202 (1983) (on learning why the police wanted to talk to him defendant "got up and said, `I have got to talk to somebody.' . . . " after which he walked out of the police station; held an effective invocation of the right to remain silent). Compare State v. Benware, No. 91-406 (Vt. Sept. 9, 1992) (mem., unpublished) (after being read Miranda rights, defendant put his fingers in his ears; the gesture "indicates a refusal to listen rather than a desire to invoke one's privilege against self-incrimination").

136. Connecticut v. Barrett, 479 U.S. 523, 529 (1987). See United States v. Whitaker, No. 90-81-01-02, slip op. 9-10 (D. Vt. 1991) (asking police if defendant could call lawyer from police station was held an unequivocal request for counsel).

137. See United States v. Whitaker, No. 90-81-01-02, slip op. 8 (D. Vt. 1991); United States v. Pena, 897 F.2d 1075, 1081 (11th Cir. 1990) (ambiguous assertion of right to remain silent); United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988) (ambiguous assertion of right to counsel). The United States Supreme Court has not ruled on this question. See Smith v. Illinois, 469 U.S. 91, 95-96 (1984).

138. Moran v. Burbine, 475 U.S. 412 (1986); State v. Stanislaw, 153 Vt. 517, 531 (1990).

139. Fare v. Michael C., 442 U.S. 707 (1979) (probation officer); State v. Hunt, 150 Vt. 483, 497-99 (1988) (defendant's father).

140. Compare State v. Mosher, 143 Vt. 197, 202 (1983) (defendant's statement, "I have got to talk to somebody[,]" was held an assertion of right to remain silent) with State v. Hunt, 150 Vt. 483 (1988) (defendant's request to speak with his father was not an assertion of right to remain silent).

141. Oregon v. Bradshaw, 462 U.S. 1039 (1983); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The Court has not been clear on whether "initiation" of communications should be judged by the traditional waiver-of-counsel standard. See Bradshaw, at 1048-51 (Powell, J., concurring), 1052-54 (Marshall, J., dissenting); Minnick v. Mississippi, 111 S. Ct. 486, 492 (1990).

142. Minnick v. Mississippi, 111 S. Ct. 486 (1990); State v. Trombley, 147 Vt. 371 (1986).

143. State v. Robinson, No. 90-549, slip op. 11-12 (Vt. April 3, 1992).

144. Arizona v. Roberson, 486 U.S. 675 (1988).

145. Michigan v. Mosely, 423 U.S. 96, 104 (1975).

146. 467 U.S. 649 (1984).

147. New York v. Quarles, 467 U.S. 649, 656 (1984).

148. New York v. Quarles, 467 U.S. 649, 659 n.8 (1984).

149. 145 Vt. 459, 471-77 (1985).

150. State v. Brunelle, 148 Vt. 347, 355 n.11 (1987).

151. See § 3.12, supra.

152. 496 U.S. 582, 600-02 and n.14 (1990).

153. Kirby v. Illinois, 406 U.S. 682, 689 (1972).

154. See § 6.03, infra.

155. Maine v. Moulton, 474 U.S. 159, 171 (1985).

156. The court has so far not departed from federal precedent in this area. See, e.g., State v. Kennison, 149 Vt. 643, 644-647 (1988) (postcharge proceeding at which court ordered nontestimonial identification procedure was not a "critical stage" under either the sixth amendment or article 10).

157. Michigan v. Jackson, 475 U.S. 625, 636 (1986).

158. Patterson v. Illinois, 487 U.S. 285, 291 (1988).

159. Michigan v. Jackson, 475 U.S. 625, 636 (1986); State v. Preston, 150 Vt. 511, 514 (1988). See §3.18, supra.

160. 110 S. Ct. 1176, 1180 (1990).

161. See McNeil v. Wisconsin, 11 S. Ct. 2204, 2209 (1991) (Court's emphasis). Compare Arizona v. Roberson, 486 U.S. 675 (1988) (forbidding custodial interrogation on a different subject after invocation of the Miranda right to counsel).

162. 150 Vt. 511 (1988).

163. 377 U.S. 201 (1964).

164. Massiah v. United States, 377 U.S. 201, 206 (1964).

165. State v. Brown, 153 Vt. 263, 268 (1989) (summarizing the holdings in United States v. Henry, 447 U.S. 264, 270-71 (1980), and Maine v. Moulton, 474 U.S. 159 (1985)).

166. State v. Brown, 153 Vt. 263, 268-69 (1989) (quoting Maine v. Moulton, 474 U.S. 159, 176 (1985)).

167. 153 Vt. 263 (1989).

168. 477 U.S. 436 (1986).

169. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

170. State v. Brown, 153 Vt. 263, 269-70 (1989) (court held that even under proposed state constitutional test defendant's admission was not reasonably foreseeable from probation officer's question about status of his pending charge).

171. 487 U.S. 285, 288 (1988).

172. 475 U.S. 412 (1986). See § 3.17, supra.

173. Patterson v. Illinois, 487 U.S. 285, 297 n.9 (1988).

174. New Jersey v. Portash, 440 U.S. 450, 459 (1979); Mincey v. Arizona, 437 U.S. 385, 398 (1978).

175. In State v. Steinhour, No. 91-096, slip op. 3-4 (Vt. April 3, 1992), the Vermont court held that a probationer's compelled responses in a probation interview, which would have been suppressible at a criminal trial, were admissible against him at a revocation hearing absent "overreaching behavior" by the authorities.

176. See § 3.27, infra.

177. See § 3.28, infra.

178. Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Badger, 141 Vt. 430, 439-40 (1982). See § 2.05, supra.

179. 331 U.S. 532, 540-41 (1947).

180. See also Darwin v. Connecticut, 391 U.S. 346, 350-51 (1968) (concurring and dissenting opinion of Harlan, J.).

181. State v. Badger, 141 Vt. 430, 441 (1982) (passage of 15 hours between first and second confessions; second confession held inadmissible).

182. State v. Badger, 141 Vt. 430, 453 (1982).

183. See Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) (identifying factors to be considered in determining if police coercion "touched" a subsequent statement).

184. 111 S. Ct. 1246 (1991).

185. See, e.g., Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991).

186. Harris v. New York, 401 U.S. 222 (1971); State v. Brunelle, 148 Vt. 347, 349 (1987).

187. State v. Brunelle, 148 Vt. 347, 350 (1987) (quoting United States v. Havens, 446 U.S. 620, 627-28 (1980)).

188. State v. Brunelle, 148 Vt. 347, 353 (1987). Brunelle's holding, based on the defendant's right to testify, id. at 355 n.11, is phrased in general terms and applies to evidence suppressed for whatever reason. But see § 3.26, supra (no impeachment use of involuntary confessions). The particular issue in Brunelle was impeachment use of a suppressed blood alcohol test, but its holding clearly applies to Miranda volitions.

189. State v. Brunelle, 148 Vt. 347, 353 (1987). This constitutional limitation on cross-examination implies a restriction on the evidentiary rule (V.R.E. 611(b)) that cross-examination is limited only by considerations of materiality. Id. at 354.

190. State v. Brunelle, 148 Vt. 347, 354 n.10 (1987) (quoting Black's Law Dictionary 237 (5th ed. 1979)).

191. State v. Brunelle, 148 Vt. 347, 354-55 (1987).

192. James v. Illinois, 493 U.S. 307 (1990). See § 2.08, supra.

193. 143 Vt. 360 (1983).

194. State v. Kilborn, 143 Vt. 360, 364 (1983).

195. State v. Kilborn, 143 Vt. 360, 364-65 (1983).

196. 146 Vt. 145 (1985).

197. State v. Messier, 146 Vt. 145, 153 (1985) (court's emphasis).

198. State v. Messier, 146 Vt. 145, 153 (1985).

199. 493 U.S. 307 (1990).

200. It is questionable whether the Wong Sun principle applies at all to Miranda violations. See New York v. Quarles, 467 U.S. 649, 660 (1984) (O'Connor, J., concurring in part and dissenting in part) (Miranda bars only testimonial fruits and not tangible evidence derived from the suppressed statement).

201. 470 U.S. 298 (1985).

202. Oregon v. Elstad, 470 U.S. 298, 314 (1985).

203. Oregon v. Elstad, 470 U.S. 298, 316 (1985).

204. State v. Olson, 153 Vt. 226, 229-231 (1989) (unwarned but uncoerced confession in police cruiser did not require exclusion of subsequent warned confession).

205. See, e.g., United States v. Janis, 428 U.S. 433, 453-54 (1976) (federal civil proceedings); United States v. Calandara, 414 U.S. 338, 351-52 (1974) (federal grand jury proceeding).

206. See, e.g., United States v. Rea, 678 F.2d 382, 390 (2d Cir. 1982).

207. No. 89-506, slip op. 4 n.4 (Vt. July 5, 1991). See § 2.07, supra.

208. State v. Oakes, No. 89-506, slip op. 16 (Vt. July 5, 1991).

209. 110 S. Ct. 1176, 1178 (1990).

210. 475 U.S. 625 (1986). See § 3.22, supra.

211. Michigan v. Harvey, 110 S. Ct. 1176, 1182 (1990).

212. See § 3.07, supra.

213. State v. Nicasio, 136 Vt. 162, 166 (1978).

214. State v. Caron, 155 Vt. 492, 511-12 (1990). See § 3.14, supra.

215. In State v. LeBlanc, 149 Vt. 141 (1987), the court suppressed a confession that was obtained pursuant to an illegal extraterritorial arrest.

216. In State v. Ballou, 148 Vt. 427, 433 n.2 (1987), the court saw no need to decide whether all violations of V.R.Cr.P. 41, governing issuance of search warrants, require suppression of illegally seized evidence.