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Bar Journal - September 1, 2000

PRISONERS AND MIRANDA — PROBLEM SOLVED?

By:

INTRODUCTION

In 1999, the New Hampshire Supreme Court joined the long list of state and federal courts that have addressed a unique problem which emerged from the United States Supreme Court’s 1966 Miranda v. Arizona decision – is a prisoner always “in custody” for purposes of Miranda by virtue of the fact that he is never free to leave?

Two years after this landmark decision, the Supreme Court was confronted with applying Miranda to the prison setting.  In United States v. Mathis, the Court granted certiorari to decide whether a prisoner was entitled to Miranda warnings before interrogation on an unrelated offense.1   Relying heavily on the language in Miranda, the Court held that Miranda warnings are required whenever an individual is interrogated while in custody or otherwise deprived of his freedom, regardless of the reason why the person is in custody.2

Following Mathis, state and federal courts all across the country have been going to great lengths to limit the scope of this decision.  These courts have interpreted Mathis narrowly and concluded that the decision does not stand for the proposition that prisoners are in custody for Miranda purposes at all times they are incarcerated.3   Instead, these courts have said that Mathis stands for the proposition that if a prisoner is “in custody” for Miranda purposes and subjected to interrogation, he is entitled to Miranda warnings.  As a result, these courts have clearly stated that a prisoner is not always “in custody” for Miranda purposes, and they have developed tests to answer the question of when exactly a prisoner is “in custody.”

 In two 1999 decisions, State v. Ford and State v. Dorval, the New Hampshire Supreme Court addressed this question and followed the majority of states and circuits into the land of additional restraint.

I. STATE OF NEW HAMPSHIRE V. SCOTT FORD

A. Background and Procedural History

On November 7, 1995, Scott Ford was arrested and incarcerated in Rutland, Vermont for passing a bad check.4   Ford contacted an FBI special agent, who met with him on November 8 at the Marble Valley Correctional Facility in Rutland where Ford was incarcerated.5   After Ford waived his Miranda rights in writing, he told the agent that he had information about an armed robbery in Hampton Beach, New Hampshire.6   Ford told the agent that in August 1995 he had been asked to rob the Coastal Gem jewelry store in Hampton Beach as part of an insurance fraud.7

After their meeting, the FBI agent contacted the Hampton police department.  He told the Hampton police what Ford had told him.8   At the time, the Hampton police had arrested and charged another person in connection with the robbery.9  Ford was not considered a suspect in that crime.10

Later, two Hampton police officers met with Ford in a lunch and locker room at the Marble Valley Correctional Facility on November 10.11   The two officers explained to Ford what they had learned from the FBI agent.12   Although Ford initially denied having spoken with the FBI agent, he eventually agreed to speak with the officers.13   The officers told Ford that they suspected the store owner and had arrested another suspect.14   They also told Ford that they did not believe he was involved and were seeking information from him.15   Ford spoke generally about the robbery and referred to the gunman involved in the crime in the third person.16

As the interview went on, however, Ford began referring to himself as the gunman.17   At this point the officers attempted to administer Miranda warnings to Ford, who initially refused to be read his rights and continued talking.  Ford responded, “you got me, I did it.”18   He asked the officers to be quiet so he could tell them something.19   He then gave a lengthy description of how the robbery occurred.20   After he finished his description, Ford permitted the officers to read him his Miranda rights, which he waived in writing.21   He continued to provide additional information about the robbery and theft after the waiver.22

Following the November 10 and a subsequent November 15 interviews, Ford was charged with one count of robbery armed with a deadly weapon and two counts of theft by unauthorized taking.23  Prior to trial, Ford moved to suppress his November 10 and November 15 statements.  In support of his motion to suppress the statements, Ford argued that the statements were involuntary and given in violation of his Miranda rights.  The motion was denied, and Ford was convicted on all counts at trial.

B. Appellate Arguments and Holding

On appeal Ford sought to suppress the November 10 confession on the grounds that it was the product of a custodial interrogation made without prior Miranda warnings.24   In support, Ford said that the November 10 interview took place in a locked room at a state correctional facility and that the officers should have foreseen that their initial questioning would elicit an incriminating response.25   The officers, Ford argued, had his admissions to the FBI agent and used those admissions to confront Ford when he initially refused to talk to them.26   Ford argued that given these facts, the officers must have considered Ford a suspect or at least should have known he might give additional incriminating statements in response to their questioning.

The State, however, contended that Ford was not “in custody,” and as such Miranda warnings were not required.27   The fact that Ford was in prison, according to the State, does not make him automatically “in custody” for Miranda purposes.  Instead, the State relied on decisions from other states and federal circuits, proposing that an incarcerated person is “in custody” for Miranda purposes only if the prisoner’s liberty is further limited beyond the usual conditions of confinement.28   In support, the State pointed out that the officers expressly advised Ford that he was not a suspect and that his participation was voluntary.29   Also, the interview took place in a locker and lunch area with no guards present. Ford was not handcuffed and was able to phone his wife during the meeting.30   The State also pointed out that Ford controlled the tenor of the meetings and did not ask to leave.31

The supreme court rejected Ford’s argument that because he was a prisoner he was in custody for purposes of Miranda.32   In so deciding, the court followed a variety of federal circuit courts that have held that when a defendant is already incarcerated at the time of interrogation, the traditional custody analysis is inappropriate.  The court adopted a Ninth Circuit position and held that when a person is incarcerated for an offense unrelated to the subject of his interrogation, custody for Miranda purposes occurs when there are additional limitations imposed on the prisoner.33

In order to determine whether Ford was further restricted in association with the interrogation, the court relied on a number of facts.  First, the November 10 interview took place in an uncoercive area of the prison.34   Also, the only people who were present were Ford and the two Hampton police officers.35   Based on the facts, the court found that Ford was not pressured and was able to terminate the interview, an option, the court stated, that Ford exercised upon first meeting the officers.36   Additionally, Ford was able to control the topics and initiated discussion of potential agreements with the State.

Based on the facts surrounding the November 10 interview, the court found that Ford was not in custody for decision denying the motion to suppress. Miranda purposes and upheld the lower court’s Ford’s conviction was affirmed.37

II. STATE OF NEW HAMPSHIRE V. CHARLES DORVAL, JR.

A. Background and Procedural History

While in jail for a probation violation, Charles Dorval, Jr. was interviewed by two sergeants of the Hudson police department on February 16, 1996.38   The officers knew that Dorval was to be released the next day and wanted to interview him about the murders of two elderly Hudson, New Hampshire sisters.39   The purpose of the interview, according to the officers, was to give Dorval information regarding the investigation of the murders and hopefully get information from Dorval about his involvement.40

The officers met with Dorval in the prison library.41   Dorval was brought to the library by a prison guard who waited outside the room during the meeting.42   Dorval was not given Miranda warnings at any point during the interview.43   During the three hour meeting, Dorval made no incriminating statements.44   When, at the end of the meeting, the officers began asking Dorval some questions, he asserted his right to counsel by stating that he wanted to speak with his lawyer.45   The meeting was stopped and Dorval was returned to his cell.46

When he returned to his cell, Dorval confessed to his cellmate that he had been involved in one of the murders.47   The cellmate, who was a police informant placed in Doral’s cell to illicit incriminating information from him, was wearing a body wire recording the entire conversation.48

Dorval was tried on two counts of first-degree murder, causing the death of another within the course of burglary and purposely causing the death of another with premeditation.49   Prior to the trial, Dorval moved to suppress the statements he made to the informant on the grounds that the meeting with the two officers was a custodial interrogation.50   As a result, Dorval argued, after he had asserted his right to counsel the police could not later question him through the informant.  The trial court denied his motion.  Dorval was later convicted only of the murder in the course of burglary charge and was sentenced to life in prison without parole.51

B. Appellate Arguments and Holding

Dorval appealed the denial of the motion to suppress the statements given to the informant.  He argued that as an inmate, he was in custody and the “added imposition” test employed by the trial court was not the proper legal standard to determine custody.52   Because he was in custody, Dorval argued, his invocation of his right to counsel was violated by the police informant.53   As a result, Dorval asserted that his statements should have been suppressed. Dorval relied on the facts surrounding the interview.  He noted that he was incarcerated.54   He was brought to the library for the meeting by a correctional officer who waited outside the room during the entire meeting.55   Dorval further argued that no Miranda warnings were ever given.56

The State, on the other hand, argued that Dorval was not in custody merely because he was incarcerated.57   Incarceration alone, argued the State, does not create the coercive police dominated atmosphere for which Miranda was intended.58   As in Ford, the State again argued for the adoption of the “additional restraint” test when determining whether a prisoner is in custody for the purposes of Miranda.59

The New Hampshire Supreme Court in Dorval, again reasserting its holding in Ford, stated that in order to determine if a prisoner is “in custody” for purposes of Miranda when being question for an offense unrelated to the subject of his incarceration, the additional restraint test applies. 60

The court then examined the facts surrounding the interview and found that no additional restraint was placed on Dorval.61  The interview was short and amicable.62   Dorval was not restrained or in handcuffs.63   He was told he was free to leave at any time.64   Additionally, the meeting was conducted in the library, not a jail cell or interrogation room.65

On those facts, the court found that no additional restraint was put on Dorval, and as such he was not “in custody” for purposes of Miranda.66   The lower court decision was affirmed.

III.  DISCUSSION

In 1968 the United States Supreme Court, in United States v. Mathis, said that the requirements of Miranda warnings prior to custodial interrogation are not limited to instances where the accused is in custody in connection with the very case under investigation.67   Where the accused is incarcerated for separate, unrelated offenses, Miranda warnings are still required for custodial interrogation.68

The New Hampshire Supreme Court is not the first court to adopt the additional restraint test to determine whether a prisoner is “in custody” for Miranda purposes.  In fact, since the Mathis decision, the majority of the federal circuits and a large number of state courts have distanced themselves from Mathis and resolved this question in a similar manner.

A. United States v. Mathis

Mathis was incarcerated in a Florida state prison and was interrogated by Internal Revenue Service agents about tax return fraud – a federal offense that was unrelated to his incarceration.69   The IRS agents did not give Mathis Miranda warnings prior to speaking with him but obtained incriminating statements from him.70   Mathis was convicted of two counts of knowingly filing false claims against the government, based, in part, on the incriminating statements he gave the agents.71

On appeal, Mathis argued that because the agents elicited the statements from him without first giving him Miranda warnings, they should not have been used as evidence against him at trial.72   The government contended that, because the questions were asked as part of routine tax investigation where no criminal proceeding might even be brought, no Miranda warnings were required.73   Additionally, they argued that because Mathis had not been put in jail by the agents questioning him but was there for a separate offense, no Miranda warnings were required.74

The Supreme Court, relying heavily on its decision in Miranda v. Arizona, rejected both of the government’s arguments.  The Court stated that the arguments that the government raised did not justify departure from the “well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody.”75   First, the Court said that routine tax investigations frequently lead to criminal prosecutions.76   Second, the Court rejected the claim that Miranda warnings only apply when a prisoner is “in custody” in connection with the crime under investigation.77   Accepting such a view, according to the Court, would go against the entire purpose of the Miranda decision.78   Whenever a person is in custody or otherwise deprived of his freedom by authorities in any significant way, he is entitled to Miranda warnings before interrogation regardless of the reason he is in custody.79

B. The Lower Courts Respond

Since the Mathis decision in 1968, at least eight of the twelve federal circuit courts and at least eighteen state courts have expressly limited the scope of the decision.80   These courts have concluded that Mathis does not stand for the proposition that every moment of incarceration is Miranda custody.81   Instead, the lower courts have found that Mathis holds only that when a defendant is imprisoned on an unrelated matter the necessity for Miranda warnings is not removed.82

The courts recognize that the traditional “free to leave” test to determine custody for Miranda does not work when the suspect is incarcerated.  By their very nature, prisoners are never “free to leave.”83   According to the lower courts, adopting a per se custody rule for prisoners would be illogical with Miranda, disrupt prison administration and provide greater protection to prisoners than those who are not imprisoned.84

As a result, the lower courts have set out to define a test to determine when a prisoner is “in custody” for Miranda purposes.  The test that emerged is called the additional restraint test and was adopted in Ford and Dorval by the New Hampshire Supreme Court.85

C. The Additional Restraint Test

An act which changes the surroundings of the prisoner, resulting in added impositions on his freedom of movement, is an additional restraint.86   Articulated in a seminal Ninth Circuit case on this issue, the test uses the reasonable person standard and the four-factor test employed in the traditional “free to leave” test.87

The factors, which are assessed on a totality of the circumstances basis, are: 1) the language used to summon the individual; 2) the physical surroundings of the interrogation; 3) the extent to which he is confronted with evidence of his guilt; and 4) the additional pressure exerted to detain him.88   If, based on these factors a reasonable person would believe that there had been restriction of his freedom over and above his normal life as a prisoner, then additional restraint will be found and Miranda warnings are required.89

1. Cervantes v. Walker - The Dawn of Additional Restraint

The Ninth Circuit was not the first court to interpret the Supreme Court’s decision in Mathis.  However, that court’s 1978 decision in Cervantes v. Walker articulated the standard that other states and districts had been struggling to articulate since Mathis.

Cervantes, an inmate in a county jail, was being moved from one jail cell to another as a result of his recent fight with another inmate.90   A sheriff’s deputy instructed Cervantes to get his belongings from his old cell and then brought Cervantes to the jail library so he could speak with a commander before the move.91   Cervantes left his belongings outside the library on a table during the meeting with the commander.92   Pursuant to a standard jail procedure a sheriff’s deputy searched Cervantes’ belongings, finding a small matchbox containing a green odorless substance.93   The deputy brought the matchbox into the library and asked Cervantes what the substance was inside.94   Cervantes replied “that’s grass man,” and was subsequently placed under arrest.95

Cervantes appealed his conviction of possession of narcotics in a county jail arguing that, under Mathis, any interrogation while in prison amounts to custodial interrogation requiring Miranda warnings.96   The Ninth Circuit rejected this argument on both policy and principle basis.

As a matter of policy, the Ninth Circuit found that interpreting Mathis as Cervantes suggested would create a per se rule requiring Miranda warnings for any questioning in prison.97   Relying on the language in Miranda, the court argued that such a finding would totally disrupt prison administration, an end which Miranda did not intend.98   Additionally, interpreting Mathis so narrowly would allow a prisoner greater protection under Miranda than non-imprisoned people.99   This, argued the court, would be both inconsistent with the Miranda holding and illogical.100

As a matter of principle, the Ninth Circuit found that the traditional “free to leave” test for determining custody under Miranda is not a useful tool when prison questioning is at issue.101   The court looked first to its prior decisions where it had articulated a standard for determining custody in “normal” circumstances.  This standard – the language used to summon the suspect, the physical surroundings of the interrogation, the extent the suspect is confronted with his own guilt, and the pressure exerted to detain him – had been used by the court to determine whether a suspect felt free to leave under the traditional determination of custody.102   The court determined, however, that this test, coupled with the traditional free to leave analysis would lead to the conclusion that all prison questioning is custodial because a reasonable prisoner would always believe he was not free to leave.103

The court then turned to the language used by the Supreme Court in Oregon v. Mathison.  In that case, the Supreme Court held that there had been no custody for purposes of Miranda where the suspect went voluntarily to the police station, confessed to a crime when confronted with false evidence, and then left the station after questioning.104   The Court held that the suspect was not in custody because there was no indication that the suspect’s freedom to leave was restricted in any way.105

Using the concept of “restriction,” the Ninth Circuit explained, is significant when referring to the prison setting.  Restriction necessarily implies a change in the prisoner’s surroundings resulting in an added imposition on his freedom of movement.106   The court then defined a new standard by integrating the concept of restriction into the objective, reasonable person standard that is used to determine traditional notions of custody.  Pursuant to this new standard, if a reasonable person would believe there had been a restriction of his freedom over and above the expectations of a prisoner in an incarcerated setting based on: 1) the language used to summon the prisoner; 2) the physical surroundings of the interrogation; 3) the extent to which the prisoner is confronted with evidence of his guilt; and 4) the additional pressure exerted to detain him, then Miranda warnings are required.107

D. Additional Restraint – Is it Really a New Standard or the Mathis Dissent in Disguise?

Technically, the lower state and district courts are correct – Mathis does not explicitly stand for the premise that any time a person is incarcerated he is in custody for Miranda purposes.  In Mathis, whether the defendant was in custody was not even an issue.108   In fact, it was assumed by the majority and by the government that he was.109   What the Mathis decision does make clear, however, is that when an individual is in custody he is entitled to Miranda warnings before interrogation regardless of the reason why he is in custody.110   In other words, there need not be a subject matter link between the custody and the interrogation in order to trigger Miranda protections.  The majority, in their opinion written by Justice Black, did not discuss how, where and when the interrogation about the new charges took place.111   Not only did the majority not discuss these issues, they did not seem to care.  The government did not raise the issue, arguing only that while Mathis was a prisoner and as such in custody, the custody was unrelated to the subject of the interrogation.112   The majority justices simply began with the assumption that as a prisoner, Mathis was in custody.

On the other hand, while the majority did not consider the custody issue, the three justice dissent did.113   Justice White, who also dissented from the Miranda decision, wrote the Mathis dissent, raising three issues.114   The first reasserted his disagreement with the Miranda decision.115   The second issue questioned whether Miranda extended to any routine tax investigations which may or may not lead to criminal investigations.116   Third, Justice White raised the issue of whether Mathis was really in custody by virtue of his status as a prisoner.117

1. White’s Dissent – The True Dawn of Additional Restraint?

Assuming for the moment that he agreed with the Miranda decision, Justice White could not agree that under Miranda, Mathis was sufficiently “in custody” to trigger its protections.118   In his dissent, Justice White writes that simply being incarcerated does not make a person in custody because Miranda did not rest on the mere fact of physical restriction, but on the conclusion that coercion usually flows from a certain type of custody.119   In a manner similar to the application of the additional restraint test, Justice White’s analysis of whether Mathis was in custody focused on the manner and place where the interrogation took place.120   He noted that although Mathis was confined, he was in familiar surroundings at the time of the interrogation.121   Based on a policy similar to that underlying Cervantes and other district court decisions that have responded to Mathis over the last 30 years, Justice White’s dissent implies that by assuming Mathis automatically in custody, he has more protection than non-imprisoned people.122   In support, Justice White stated that, “Neither the record nor the Court suggests reasons why [Mathis] was ‘coerced’ into answering [the agents’] questions any more than is the citizen interviewed at home by a revenue agent.”123

Although the majority opinion in Mathis did not explicitly address the custody issue, the language of the three justice dissent, language which is remarkably similar to that used in decisions by courts that have tried to limit the Mathis decision, seems to imply otherwise.

CONCLUSION – THE TEST IN PRACTICE

By following the trend and adopting the additional restraint test, the New Hampshire Supreme Court has set the bar high for prisoners contesting the constitutionality of their statements.  While this new standard certainly does address the societal needs for crimes to be solved, prison administration to run smoothly, and justice to be served, it may eventually fail under the scrutiny of the U.S. Supreme Court as the solution to this “glitch” in the traditional Miranda analysis.  As the courts continue to distance themselves from Mathis, it is easy to imagine that the principles that underlie that decision – those articulated in Miranda – can easily be lost.  For example, while Miranda errs on the side of protecting the individual’s Fifth Amendment rights, sometimes at the cost of society’s need for justice, the additional restraint test seems to err on the side of society’s need for justice and smoothly run prison administration, potentially at the cost of individual rights.

Prisoners are probably the most “not free to leave” people in the country.  However, like the defendants in Ford and Dorval, prisoners all over the country have met with limited success when arguing that as a result of their incarceration they are ipso facto “in custody.”  While some courts may find this argument fails for policy reasons, and others find it fails on principle, most courts have adopted the Ninth Circuit’s reasoning.

Not only have the courts rejected the notion that prisoners are by their very nature always “in custody;” in doing so they have also set the “in custody” standard for prisoners arguably high.  In fact, most have found that to hold otherwise would not further the purposes of Miranda, but directly conflict with its purpose.  The additional restraint standard may be high.  It may never be in a suspect’s best interest to make a confession or a statement to law enforcement out of foolishness, guilt, or bravado.124   However, the goal of Miranda is not to prevent confessions.125   The goal of Miranda is to prevent compulsion.126   While attempting to address societal concerns and expectations that crimes be solved and justice be served, it is questionable whether this standard also addresses the need to prevent such compulsion and protect an individual’s right not to be coerced.127

ENDNOTES

1. United States v. Mathis, 391 U.S. 1 (1968).
2. Id. at 4-5 (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
3. See, e.g., Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994); United States v. Conley, 779 F.2d 970 (4th Cir. 1985); United States v. Chamberlain, 163 F.3d 499 (8th Cir. 1998); United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994).
4. State v. Ford, _ N.H. _, _, 738 A.2d 937, 940 (1999).
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Brief for the State at 7, State v. Ford, _ N.H. _, 738 A.2d 937 (1999) (No. 97-617).
11. Ford, 738 A.2d at 940.
12. Brief for the State at 8, Ford (No. 97-617).
13. Ford, 738 A.2d at 940.
14. Brief for the State at 8, Ford (No. 97-617).
15. Id.
16. Ford, 738 A.2d at 940.
17. Id.
18. Brief for the State at 8-9, Ford (No. 97-617).
19. Id. at 9.
20. Id.
21. Ford, 738 A.2d at 940.
22. Id.
23. Id.
24. Id.
25. Brief for the Defendant at 11, Ford (No. 97-617).
26. Id.
27. Brief for the State at 17-18, Ford (No. 97-617).
28. Id. at 18-19.
29. Id. at 21.
30. Id.
31. Id.
32. Ford, 738 A.2d at 943.
33. Id. 
34. Id.
35. Id.
36. Id. 
37. Id at 945.
38. State v. Dorval, _ N.H. _, _, 743 A.2d 836, 837 (1999).
39. Brief for the Defendant at 9, State v. Dorval, _ N.H. _, 743 A.2d 836 (1999) (No. 97-560).
40. Id.
41. Dorval, 743 A.2d at 837.
42. Brief for the Defendant at 9, Dorval (No. 97-560).
43. Dorval, 743 A.2d at 837.
44. Brief for the Defendant at 9, Dorval (No. 97-560).
45. Dorval, 743 A.2d at 837.
46. Id.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Brief for the Defendant at 15, Dorval (No. 97-560).
53. Id.
54. Id. at 22.
55. Id.
56. Id.
57. Brief for the State at 26, Dorval (No. 97-560).
58. See id. at 26-29.
59. Id. at 30.
60. Dorval, 743 A.2d at 838 (citing State v. Ford, _ N.H. _, _, 738 A.2d 937, 943 (1999)).
61. Id. 
62. Id.
63. Id.
64. Id.
65. Id.
66. Id.
67. Mathis, 391 U.S. at 4-5.
68. See id. at 5.
69. Id. at 2.
70. Id. at 3.
71. Id. at 2.
72. See id. at 3.
73. Id. at 4.
74. Id.
75. Id.
76. Id.
77. Id. at 4-5.
78. Id.
79. See id at 5.
80. Laurie Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 OHIO ST. L.J. 883, 936-37 (1997).
81. Id. at 935.
82. See, e.g., Conley, 779 F.2d at 972.
83. Id.
84. Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978).
85. See, e.g., id. at 428; Conley, 779 F. 2d at 973; Ford, 738 A.2d at 943 ; Dorval, 743 A.2d at 838.
86. See Cervantes, 589 F.2d at 428.
87. See id. at 427-428 (citing United States v. Curtis, 568 F.2d 643 (9th Cir. 1978)).
88. Id. at 428.
89. Id.
90. Id. at 426-427.
91. Id. at 426.
92. Id. at 426-427.
93. Id. at 427.
94. Id.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id. at 428.
102. Id. at 427-428 (citing Curtis, 568 F.2d at 646).
103. Id. at  428
104. See Oregon v. Mathison, 429 U.S. 492 (1977).
105.  Id. at 495.
106. Cervantes, 589 F.2d at 428.
107. Id.
108. See Mathis, 391 U.S. at 1-4.
109. Id.
110.  Id. at 4-5
111.  Id. at 1-4.
112.  Id. at 4.
113.  Id. at 5-8.
114.  Id.
115.  Id. at 5-6.
116. Id. at 6-7.
117. Id. at 7-8.
118. See id. at 7.
119. Id.
120. See id. at 7-8.
121. Id. at 7.
122. See id. at 7-8.
123. Id. at 7.
124. See Magid, supra note 80, at 952.
125. Id.
126. Id.
127. Id.


The Author
Deanne M. DiCenzo, Class of 2001,
Franklin Pierce Law Center

Concord, New Hampshire.

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