Effect
Seibert was a split decision. The general rule is that when there is no majority opinion in a Supreme Court case, the narrowest rationale agreed upon by at least five Justices controls. But lower courts have disagreed about what that rationale is in Seibert: some have adopted the "effects" test from the plurality opinion; others have adopted the "intent" test from Kennedy's opinion. As Gerald Uelmen has written, "The fractured opinions" in Seibert "have left lower courts in limbo." Midstream Miranda Warnings After Seibert, Champion, July, 2005.
According to Justice Souter's opinion, the two-step interrogation practice was becoming increasingly popular among police departments. Given the confusion about Seibert's meaning, it remains to be seen whether that changes.
In State v. O’Neill (N.J. Super. Crt. App. Div. 2006) (case #14-2-5143) the New Jersey Appellate Court held that the defendant's statements given to police after a so-called, "question-first, warn-later" interrogation were admissible. From reading the NJ Court's opinion, the court bases their ruling on the length of time between the first, non-mirandized interrogation and the second, mirandized interrogation, which was about 1 hour and 15 minutes; that the questioning during the first interrogation were unrelated to the questioning during the second interrogation; that the statements that O'Neill made were different during the first and second interrogation; and that the first interrogation took place at one location (jail cell) while the second interrogation had taken place at another (patrol commander's office). In terms of Seibert, the NJ Appellate Court endorses the reasoning contained in the concurring opinion of Justice Kennedy.
Read more about this topic: Missouri V. Seibert
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