Kennedy, J., concurring in judgment
randa offers and does not serve any legitimate objectives that might otherwise justify its use.
Further, the interrogating officer here relied on the defendant's prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 ("'Trice, didn't you tell me that he was supposed to die in his sleep?"). This shows the temptations for abuse inherent in the two step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.
The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of "knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Moran v. Burbine, 475 U.S. 412, 423–424 (1986). When an interrogator uses this deliberate, two step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.
The plurality concludes that whenever a two stage interview occurs, admissibility of the postwarning statement should depend on "whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object" given the specific facts of the case. Ante, at 615. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two stage interrogations.
