The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins

By Meghan Morris*

Volume 39.2

* J.D., 2011, New York University School of Law; B.A., 2008, University of North Carolina at Chapel Hill.  Many thanks to Professor Erin Murphy for her invaluable suggestions and critiques in the drafting process.  I am also deeply grateful to Laura Arandes for her encouragement and advice.  For my continuing education in the practice of criminal law and procedure, I am indebted to my friends and colleagues at the Colorado State Public Defender. I have also benefited greatly over the past couple of years from the guidance and advice of Cassy Stubbs, Betsy Tao, Bryan Stevenson, Randy Susskind, and Anthony Amsterdam. Finally, thanks are due to Scott Spillman and to my family for their unwavering support.


This Article addresses a new stage of interrogation, approved of for the first time in the Supreme Court’s 2010 decision, Berghuis v. Thompkins. This stage—the “decision zone”—is the period, however brief or prolonged, after officers have read a suspect his rights but before the suspect has decided whether to waive or to invoke those rights.  In Thompkins, the Supreme Court allowed interrogation during this stage, which lasted almost three hours in that case.  In Thompkins, the Supreme Court implicitly assented to prolonged interrogation before a suspect decides whether to invoke or to waive his rights, thus creating the decision zone.

This Article argues that existing precedents regarding trickery in interrogations address police behaviors only before a suspect is read his rights or after he has waived his rights and agreed to talk to police.  These precedents do not directly address trickery in the decision zone.  Such precedents are, in fact, overbroad when applied to interrogation in the decision zone because this interim period is the crucial time in which a suspect is deciding whether or not to waive his rights.  Courts must look at the constitutionality of police trickery during this period as a new question not controlled by existing precedents.

Under Maryland v. Seibert, police officers may not intentionally undermine the effectiveness of Miranda warnings.  This Article argues thattrickery in the decision zone may be barred by Seibert and other precedents in certain instances.  This Article proposes a two-factor test for deciding when trickery in the decision zone should be found unconstitutional.  First, a court must ask whether a given police practice has the intent and effect of undermining Miranda warnings.  Second, the court must ask whether the police practice has a tendency to produce false confessions.  These factors, rather than existing precedents regarding trickery in interrogations, should control the new constitutional inquiry into police behavior within the decision zone.

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