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A HYPOTHETICAL FOR RESPONSE
A brutal rape, one that results in severe injuries to the victim - so serious that she might not survive, has been committed and after a long and grueling 27 hours without sleep, a Detective has arrested a suspect for the sex offense. He takes him into the interrogation room and as soon as he does, another officer who knows the suspect enters and talks with the suspect about all kinds of "crap" other than the rape. The Detective then starts interrogating the suspect, but then after twenty minutes of interview during which time the suspect starts to confess, remembers that he hasn't advised the defendant of his Miranda Warnings. The Detective goes, "OH CRAP" (not the exact word used)! He then takes a break, goes outside to regroup, reenters the interview room and promptly advises the worthless scumbag rapist of all of his beloved Miranda Warnings. The suspect then confesses to being a serial rapist who has committed 36 rapes across the country over the past 5 years. Is the confession admissible at trial of the defendant for the most recent rape or for any of the past rapes?
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Yes. If the detective legitimately forgot, then the good faith rule applies. Once he realizes his mistake he corrects it, then the confession is good. This actually just happened recently in a homicide trial in Wi county where the msp detective did the exact same thing. the judge ruled the confession admissible.
Good faith does not apply. Under state cases Kennedy and Kerr there is and arguement that the "cat is out of the bag" and the statement is inadmissible. That said, if the State can show that any taint from the inadmissible statement has been cured by the advise of the Defendant's rights the statement will come in. The "cat out of the bag" arguement seldom works.
This our answer to the crapper counsels question... Check back for his answer.
On your answer to the hypothetical, the admission should be inadmissible. It depends on what the suspect was confessing prior to being mirandized. But even during a routine conversation the suspect is still in custody for an offense and therefore any conversation with the suspect could be considered a custodial interrogation. However, a post Miranda warning, after the suspect starts to confess under custodial interrogation, after being arrested for the rape itself would be inadmissible. There was an earlier case, in which officers were eliciting confessions prior to Miranda and then mirandizing suspects post confession in order to obtain another admissible confession, which was deemed unconstitutional. Therefore, our answer would be that the confession would be inadmissible...especially since the suspect stated his confession prior to him being advised of his Miranda rights.
Of course, this doesn't mean the suspect would not be found guilty of the rape in court, it just means that his statements would be suppressible. A more interesting question is also even if those statements were suppressed at trial and could not be used for the other 36 rapes, would information used from those statements that point detectives in the right direction to the other across the county to used tie the suspect to those rapes by other means (such as DNA collection, etc), also mean that the separate evidence obtained from those statements, not covered by Miranda, be a fruit of the poisonous tree issue?
I would have to say that if a confession was obtained prior to the Miranda then that confession would be inappropriate. If, however, there was no direct line of questioning of the suspect that led to a confession, then as long as there was no use of the information stated in the first 20 minutes, everything after that would be admissible. In order for there to be an argument of a Miranda issue, there must be 1) Custody and 2) Interrogation (or a direct line of questioning in which it is intended for the suspect to admit guilt). If the first line of question, pre-Miranda, was voided and not utilized, there should be no issue.
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