Wednesday, June 5, 2013
Tammy R. Pettinato (University of North Dakota - School of Law) has posted The Custody Catch-22: Post-Interrogation Release as a Factor in Determining Miranda Custody (65 Arkansas Law Review 799 (2013)) on SSRN. Here is the abstract:
This article addresses the anomalous use of post- interrogation release as a factor in determining whether a suspect was in custody for purposes of Miranda when interrogated without a formal arrest. The standard for custody is whether a reasonable person would have felt free to terminate the interrogation and leave. Yet several courts, including the Supreme Court, continue to consider the end result of the interrogation in making a finding of custody without explaining why a post-interrogation event should matter to the analysis of what occurs during the interrogation. Part I of this article introduces the issue. Part II provides a brief overview of the history of confessions jurisprudence leading up to Miranda. Part III explains the current standard for determining custody as articulated by both the Supreme Court and the circuit courts. Part IV is the heart of the article; it examines cases in which post- interrogation arrest or release has been used as a factor in making custody determinations and argues that these considerations represent leftover fragments from former incarnations of the custody test. It further shows that the consideration of post-interrogation arrest may be worth retaining for its usefulness in providing crucial evidence of police misconduct. In contrast, the consideration of post- interrogation release offers no such probative value, and instead creates a catch-22 for suspects: cooperate to obtain release only to have that very release used as evidence that cooperation was not required. The article concludes by arguing that the courts should reject post-interrogation release as a factor in Miranda custody analyses.