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Faith-Based Miranda: Why the New Missouri v. Seibert Police 'Bad Faith' Test is a Terrible Idea

24 Pages Posted: 9 Jun 2005 Last revised: 27 Feb 2014

Joelle Anne Moreno

Florida International University (FIU) - College of Law

Date Written: 2005


On June 28, 2004, the Supreme Court decided Missouri v. Seibert, 124 S. Ct. 2601 (2004). At first glance, Seibert looked like a Miranda victory, but this is an illusion. Although Justice Souter's plurality decision condemns question-first police practices designed to circumvent Miranda, the case is governed by Justice Kennedy's concurrence which required the defendant to prove that the interrogating officer acted in "bad faith."

The problem with Seibert is not that courts applying the new rule will ignore some epidemic of inadvertent Miranda violations; these are presumably rare. The real danger is the burden-shifting problem. Miranda created a presumption of coercion whenever the defendant established custody and interrogation. Seibert shifts the burden back to the defendant, paveing the way for prosecutors to persuade judges to admit statements taken in violation of Miranda in future cases if the defendant fails to prove that the police acted in bad faith. In fact, Seibert goes so far as to suggest that, even statements taken after deliberate bad faith violation of Miranda should be admitted if certain unexplained curative measures were taken by the police.

This article suggests an alternative future. Without the police bad faith test, which does not currently have the support of a majority of the Court, Seibert's ban on unwarned pre-interrogation questioning could help transform Miranda into a more effective deterrent. Seibert reflects the reality that Miranda alone does not work and could be used to support the adoption of additional enforcement mechanisms, such as rules requiring the videotaping of custodial interrogations. With more than fifteen states currently contemplating the mandatory taping of all custodial interrogations, the time is ripe for a critical analysis of Seibert and its full potential.

Keywords: Miranda test, Missouri v. Seibert, Dickerson v. United States, Oregon v. Elstad, Police bad faith, interrogations, Missouri Supreme Court

Suggested Citation

Moreno, Joelle Anne, Faith-Based Miranda: Why the New Missouri v. Seibert Police 'Bad Faith' Test is a Terrible Idea (2005). Arizona Law Review, vol. 47, Issue No. 2, p. 395 (2005). Available at SSRN:

Joelle Anne Moreno (Contact Author)

Florida International University (FIU) - College of Law ( email )

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