Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine Note 62 Indiana Law Journal 1986-1987

62 Ind. L.J. 1061 (1986-1987)
Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine

handle is hein.journals/indana62 and id is 1085 raw text is: NOTES
Miranda Right-to-Counsel Violations and the Fruit
of the Poisonous Tree Doctrine
INTRODUCTION
There is a jurisdictional split on the relatively narrow issue of whether
the fruit of the poisonous tree doctrine applies to Miranda violations of the
invocation of the right to counsel.' These are known as Edwards2-tainted
violations. Much of the confusion in this area of criminal procedure can be
traced to the two-level nature of the Miranda warnings themselves.3 There
is the specific procedural warning itself-in this case, the notification of the
right to counsel-and there is the actual invocation of the right by the
suspect.4 This Note will not address directly the issue of the use or exclusion
of evidence derived from the failure by the police to give the required Miranda
warnings.5 Rather, this Note only addresses the question of whether the fruit
of the poisonous tree doctrine6 should apply to violations of a suspect's
invocation of his right to counsel. In fact, as this Note will demonstrate,
the poisonous fruits doctrine definitionally applies to all first generation
derivative evidence after Miranda violations.7 The narrower question is whether
I. Compare United States v. Downing, 665 F.2d 404 (1st Cir. 1981) (applying the fruit of
the poisonous tree doctrine) with Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied,
459 U.S. 1092 (1982) (declining to apply the poisonous tree doctrine).
2. Edwards v. Arizona, 451 U.S. 477 (1980).
3. Miranda v. Arizona, 384 U.S. 436 (1966). The first-level warnings are well-known. A
person in custodial interrogation must be given four warnings: (1) you have the right to remain
silent; (2) anything you say can be used against you in court; (3) you have the right to the
presence of an attorney; and (4) if you cannot afford a lawyer, one will be appointed prior
to any questioning if you so desire. The second level of the Miranda warnings is their actual
invocation. This Note addresses the application of the fruit of the poisonous tree doctrine to
violations of the invocation of the right to counsel at its second level.
4. This seems to be a critical distinction. The United States Supreme Court has been very
protective of persons who have invoked their right to counsel. See infra notes 172-282 and
accompanying text.
5. See Oregon v. Elstad, 470 U.S. 298 (1985) (rejecting application of the fruits doctrine
to a suspect's subsequent confession despite an earlier unwarned confession); Michigan v.
Tucker, 417 U.S. 433 (1974) (refusing to exclude the testimony of a witness discovered after
a failure by police to warn the suspect he had a right to appointed counsel when the other
warnings were given).
6. The fullest explication of the fruit of the poisonous tree doctrine can be found in Wong
Sun v. United States, 371 U.S. 471 (1963). Illegally obtained evidence (the poison tree) is
sometimes used to generate derivative evidence (the poison fruit). Since the poison tree's first
generation evidence must be suppressed, the fruit of the poisonous tree doctrine argues that
derivative generation evidence should also be suppressed.
7. For example, the unwarned confession in Elstad was automatically suppressed. Justice
O'Connor stated, Miranda requires that the unwarned admission must be suppressed ......
Elstad, 470 U.S. at 309. This is a classic example of the application of fruit of the poisonous

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