Posted on Dec 05, 2018

A new South Carolina Court of Appeals decision shows how courts handle violations of the rights police should read you when you get arrested and a strategy some officers use to try to get around them. These rights, called Miranda rights, are named after the United States Supreme Court case that required them. The strategy police may use, intentionally or not, to get around these rights is called “question first.”

The recent decision, called State v. Marshell Hill, was filed on November 28, 2018. It overturns Hill’s voluntary manslaughter conviction, ruling police violated his Miranda rights in two distinct ways.

The Impact of Your Miranda Arrest Rights Might Surprise You

Miranda violations don’t necessarily mean your case gets dismissed or the charges get dropped. What happens is this: any statement you make in police custody as a result of a Miranda violation must be thrown out of evidence. And wouldn’t you know it—police “custody” probably isn’t what you think.

Here’s how the rights violations came about in Hill’s case.

What Happened To Marshell Hill

Greenville County Sheriff’s officers suspected Hill of beating the victim to death with Hill’s walking cane when the victim tried to steal Hill’s TV.

To make a long story short, after investigators questioned Hill at the Greenville County Law Enforcement Center, he gave two statements:

  1. He admitted he “tapped” the victim twice with his cane.
  2. Later, he gave a videotaped confession where he admitted hitting the victim several times when the victim tried to steal the TV.

Here’s how the Court ruled on the admissibility of those two statements.

The First Statement

For the first statement, it was clear police hadn’t advised Hill of his rights beforehand. Still, the State fought for the statement’s admissibility by arguing Hill wasn’t in police custody when he made it.

The Court boiled down what “police custody” means this way: “We must decide if a reasonable person—faced with the same circumstances confronting Hill—would have felt free to leave.”

The Court listed two key rules guiding its decision:

  1. It doesn’t matter what the participants think. That’s likely a good rule since suspects will surely say they couldn’t leave, and officers will just as sure say they could.
  2. The Court is required to “reconstruct” the interrogation by considering the time, place, purpose, and length of questioning.

The Court observed that being questioned at a police station does not necessarily mean you’re in custody. But the judges did note that when police ask a suspect to come to the station, it does make custody “much more likely”. And when police indicate to a suspect that they actually view him as a suspect, by doubting his version of events or presenting other versions based on other evidence, that can equate to custody.

The Court noted Hill was isolated with investigators. No evidence existed that investigators ever told Hill he could end the questioning at any time and leave.

The Court pointed out some “striking” facts that led to its conclusion. First, an officer on the video confession tells Hill, “We didn’t tell you you couldn’t go home; we told you we could not make that decision until we find out what you have to tell us.” The Court ruled that statement alone could justify a reasonable person to believe he wasn’t free to leave.

Second, there was a distinct change in the questioning. At some point, investigators left the room to discuss inconsistencies between Hill’s statement and the statement provided by his roommate. When they returned, they extended the interrogation to pursue their theory of Hill’s guilt. On the video, they told Hill, “We know what happened.” The Court ruled that when investigators realized Hill’s statement conflicted with his roommate’s, Hill was effectively in police custody.

Finally, the Court ruled the two-plus hours of questioning Hill underwent without being read his rights also indicated he was in custody.

Thus, because Hill never got read his rights while in custody, the Court threw the first statement out.

The Video Confession: A Notorious and Unconstitutional Police Tactic

Hill argued the video confession should be inadmissible because he fell victim to a police interrogation practice called “question first.” It involves questioning a suspect without first reading him his rights. Once he confesses to the crime, officers read the suspect his rights and have him repeat the confession. The United States Supreme Court ruled it unconstitutional in a 2010 case called Missouri v. Siebert.

The Court of Appeals noted the legal analysis of whether police used “question first” requires comparing the circumstances of the unwarned questioning and the warned one. Specific factors include completeness and detail of questions, the timing and setting of both sessions, whether it involved the same police officers, and whether police treated the second session as a continuation of the first.

Notably, the “question first” tactic need not be intentional. In fact, the Court basically ruled that Hill’s investigators weren’t “bad cops.” The Court specifically ruled there was no direct evidence they tried to get around his Miranda rights.

The Court found both of Hill’s questioning sessions to be similar. They involved the same investigators. The Court also concluded investigators treated the sessions as continuous, even telling Hill they only wanted him to say what he’d already said.

But the Court agreed with Hill, ruling his Miranda rights were given too late to be effective. As a result, the Court threw out the video confession.

What It Means for Hill—and for You

First, here’s the most important observation by the Court in Hill’s case: “The issues here are close.” And that means if you’re charged with a crime, you need a criminal defense attorney who can help make a difference in a close case like this one. Your future and reputation—and quite possibly your freedom—likely depend on it.

Second, the case isn’t necessarily over for Hill. All the Court did is prevent his statement and video confession from being admitted at trial. He can still be retried. Only time will tell what happens for Hill. Hopefully, he has a great lawyer to help him.

Feel free to schedule a free strategy session with us by calling our office at 888-230-1841.


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.