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Cat Out of the Bag Theory

I was questioned by the police in regard to rape at my house. I gave a statement at my house, but i was never read any miranda rights. I was then taken down to the police station and I was given my formal miranda warnings. The officer told me that he already knew the statement I made at my house and that he wanted to formalize that statement and then ask me some new questions. I told him that I wasn’t sure if I wanted to continue but he told me that it didn’t matter because my first statement was, “good enough” for him–he was just giving me the opportunity to clarify. Are the statements in or out?

Interesting question. I have actually had this issue in court. The idea is that once the first statement is taken illegally, the so called cat is out of the bag and the defendant can no longer give a fresh legal statement. In other words, once the on the scene officer screws up, the detective can’t fix it by mirandizing the defendant and getting a second statement.

This is somewhat analogous to fruit of the poisonous tree. See other posts for those issues.

2 Comments on Cat Out of the Bag Theory

  1. How does this square with the US Supreme Court decision in Oregon v. Elstad 105 S. Ct. 1285 (1985)? In that case, an unlawful statement was taken by the police in a suspect’s home and then a second, Mirandized statement was later taken by detectives at the police station.

    The Court rejected the cat out of the bag theory on the basis that Miranda warnings are not a constitutional requirement but rather a prophylactic and that there was no need to impute the ‘taint’ to subsequent statements…

  2. Brian J. Zeiger, Esquire // at 11:21 pm // Reply

    I could be wrong, but without any citation, my memory tells me that PA affords its citizens greater protection then does the federal constitution in this instance. Am I wrong?

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