Fourth Circuit: Miranda Doesn’t Apply In Sentencing

VIRGINIA BEACH, VA , February 28, 2006 — Ever since the 1960’s, police have been required to obey the mandate that when a custodial interrogee invokes the right to consult with counsel, “all questioning must cease.” Any violation of this rule results in the invocation of the most celebrated exclusionary rule in American jurisprudence. Americans have largely understood the mandates of Miranda v. Arizona to be inflexible and absolute; the government may not use any information obtained in violation of Miranda against the accused at trial.


Well, not so fast. Actually, there are occasions in which the prosecution may use illegally obtained self-inculpatory statements. For example, they may be used to impeach the defendant if he takes the witness stand, as long as the statement was not coerced. Information gained from a non-coerced statement also may result in leads that the police may freely pursue, giving them access to witnesses and physical evidence they would not otherwise learn about.


Today, the Fourth Circuit found another place in which illegally obtained statements can be used: At sentencing. In US v. Nichols, it ruled that where such evidence is reliable, no good policy reasons support exclusion of the statement from the sentencing phase of a trial. In this case, Nichols engaged in a casual conversation with police, without the use of handcuffs. He got a cigarette when he wanted one. He stated that he thought it would be better for him to talk with police.


That didn’t stop a magistrate judge, and then a US district judge, from granting Nichols’ attorney’s motion to suppress the statements. They were not used in the guilt phase of trial, and two charges against Nichols had to be dropped as a result. But when he pleaded guilty to a remaining bank robbery charge, the government offered the uncounseled statements at the sentencing phase. The district court specifically declined to consider them.


In an unusual move, prosecutors appealed the district court’s refusal; today, they won. The Fourth Circuit found that this type of evidence is really not very different from other types of evidence that are routinely considered in sentencing, but would be strictly forbidden at the guilt phase (for example, evidence of prior convictions to enhance punishment). The decision stops short of sanctioning police efforts to develop uncounseled statements for the primary purpose of enhancing sentencing, so investigators can’t use this case as a green light to go fishing for inflammatory evidence.


About L. Steven Emmert

Appellate lawyer L. Steven Emmert of Virginia Beach authors the Web site “Virginia Appellate News & Analysis” at .  He is available to the media as an Expert Resource for comment, analysis, and help wading through the legalese of the ruling at (757) 965-5000.  Emmert is also Chairman of the Appellate Practice Subcommittee for the Virginia State Bar’s Litigation Section.


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