David Souter

“ There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, 18 U.S.C. 3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States, supra. Dickerson re-affirmed Miranda and held that its constitutional character prevailed against the statute. ”

“ But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility of a subsequent warned confession following "an initial failure . . . to administer the warnings required by Miranda." Elstad, 470 U.S., at 300. In Elstad, "a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will," did not "so tain [t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. ”

“ Hanrahan: "The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?" Seibert: "Yes." Id., at 70. After being charged with first degree murder for her role in Donald's death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a "conscious decision" to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question "until I get the answer that she's already provided once." App. 31–34. ”

“ Most police manuals do not advocate the question first tactic, because they understand that Oregon , 470 U.S. 298 (1985) , involved an officer's good faith failure to warn. See, e. g., Inbau, Reid, & Buckley 241 (Elstad's "facts as well as [its] specific holding" instruct that "where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required,. . .corrective measures. . .salvage an interrogation opportunity") . ”

“ Hogan, 378 U.S. 1, 8 (1964) , that " [t] he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty. . ”