Officer actually took two confessions - one on a body cam at the scene and another later during an interview at the PD.

The suspect was Mirandized both times with one small problem. Apparently the officer was using an iPhone ap to read the Miranda warnings and unfortunately he only read Federal Miranda without the 5th element required by Texas – that the interview could be terminated at any time.

Is there any way to save these confessions? Certainly this isn’t the first time this has happened and we were hoping someone might have flushed this issue out before.

Thanks.

Look at McGowan v. State, 2013 WL 1143240 (March 20, 2013) and the cases cited therein to get a start on the research. The two things that come to mind are:

1. Argue substantial compliance; and
2. See if admissibility through 38.22(c) is possible (statement has facts or circumstances found to be true and which conduce to establish the guilt of the accused)

Robert DuBoise

Here are some more to look at:

State v. Subke, 918 S.W.2d 11 (says it is not substantial compliance where extra warning omitted)
Nonn v. State, 69 S.W.3d 590 (omit warning that interview can be terminated at any time not substantial compliance)
Hernandez v. State, 13 S.W.3d 78 (omit warning that interview can be terminated at any time not substantial compliance)
White v. State, 779 S.W.2d 809 (Tex. Crim. App.) (holds that warnings were substantial compliance)

In the McGowan case cited above, the warnings omitted #5, but the detective gave another warning that got close enough.

This is a problem that repeats itself because vendors (and App developers) don't know Texas law.