Seibert dissenters had prevailed, they would have relied on Elstad to reject defendant’s claim midstream warnings did not reasonably convey Miranda rights. The dissenters would have required defendant to show on remand her waiver was not “voluntary” based on a showing of “actual coercion”, defined under Elstad as “physical violence or other deliberate means calculated to break the suspect’s will.” Food for Thought Defendant is arrested for robbery and brought to the station in morning. No Miranda warnings are given, but he makes no incriminating statements during questioning. Then defendant is given a polygraph exam without warnings, and officers tell him that he has “failed” the polygraph. At end of afternoon, Defendant is taken to court and a magistrate gives him Miranda warning. Upon his return to police station, officers obtain a waiver from defendant, and then he makes his 1st incriminating statements. Under Kennedy’s test, will trial court find magistrate’s warnings failed to reasonably convey the Miranda rights? How will the analysis change if trial court uses the Seibert plurality’s test? See Martinez v. State , 272 S.W.3d 615 (Tex. Crim. App. 2008) . Nope, no curative measures were taken. Examples of appropriate curative measures include : (1) substantial break in time and circumstances between the unwarned statement and the Miranda warning (Kennedy); 21 (2) explaining to the defendant unwarned statements, taken while in custody, are likely inadmissible (Kennedy); (3) informing the suspect, although he previously gave incriminating info, he is not obligated to repeat it (plurality); (4) interrogating officers refrain from referring to unwarned statement unless defendant refers to it first (plurality); or (5) if the defendant does refer to the pre- Miranda statement, the interrogating officer states that the defendant is not obligated to discuss the content of the first statement (plurality). 4. Waiver Even when Miranda warnings are given, prosecution must prove by a preponderance of evidence suspect “voluntarily, knowingly and intelligently” waived Miranda rights. In Moran v. Burbine , Court summarized waiver requirement as follows: “The inquiry has 2 distinct dimensions. First, relinquishment of right must have been voluntary in sense it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, waiver must have been made knowingly and intelligently, with full awareness of both nature of the right being abandoned and the consequences of the decision to abandon it. Only if ‘TOC surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Berghuis v. Thompkins Rule Where a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police. Gov has heavy burden Facts Thompkins was a suspect of a shooting which occurred at a mall, but he fled the state to Ohio. Police find him a