Miranda rights were a controversial legal decision almost from the start.
Many viewed the Miranda Warning as protection for the guilty, at the expense of police, because it requires police to advise and protect, an individual in custody, subjected to direct questioning from violating their Fifth and Sixth Amendment rights.
We all have seen the police warn suspects of this right, known as the “Miranda warning,” in countless movies and TV shows.
Yet, there is much still to be learned.
When the Supreme Court created the Miranda warning, its purpose was to shield people in police custody from being forced to make statements that would later be used against them at trial.
At its heart, the Miranda warning is a “procedural safeguard” – an extra lock on the door.
Before Miranda, police often induced confessions through torture, deprivation of food, and other cruel and inhumane treatment.
After Miranda, police practices adapted to incorporate the Miranda warning, with police downplaying the warning, through a routine announcement.
Today, suspects routinely waive their Miranda rights and talk with police, sometimes confessing to serious crimes.
In fact, some have questioned whether Miranda rights offer any real protection at all, since suspects may lack the ability to know the consequences can and do shrug off the protection against self-incrimination so easily.
And that’s the problem.
A Miranda warning is only effective when the suspect understands it and is able to make a deliberate choice to cooperate with the police.
Some suspects don’t understand the warning. As a result, more states should protect vulnerable suspects, such as juveniles and those with mental illness or disability, by forbidding interrogations where lawyers are not present.
The Supreme Court has said time and again that whether a suspect’s waiver of the Miranda right to remain silent is truly “voluntary, knowing and intelligent” depends on all of the circumstances of the particular case.
Following the 1966 Supreme Court decision, which found Ernesto Arturo Miranda‘s rights were violated, during his arrest and trial.
During her report of the incident, she provided a description that fit Miranda .
Later, the victim and her cousin, noticed the same car of the rapist driving slowly, near the same bus stop, she was abducted from and reported the partial license plate number to police.
The police, eventually tracked it to Twila Hoffman and her live-in boyfriend, Ernesto Miranda.
When police showed up at the girlfriend’s door, Miranda spoke to them, agreed to go to the station, and appear in a line-up.
After being questioned on the charges of kidnapping and rape for two hours, the officers informed Miranda, he’d been positively identified by the victim.
Miranda then confessed to the crimes.
Please see chart at bottom of this story , to know if you have properly been advised of your Miranda Rights.
At the time, Miranda was unaware, a defendant could remain silent and request an attorney, before being questioned.
Though the victim was unable to make an immediate identification, from the four-man line-up, Miranda was led to believe otherwise.
When Miranda asked afterwards, “How did I do?,” he was told by Captain Carroll Cooley, “Not too good, Ernie.”
At one point, the detectives brought the victim into the room.
One of them, asked Miranda if this was the person he had raped.
Miranda looked at her and said, “That’s the girl.” and offered details, which closely matched the victim’s account and used as sole evidence, when he was tried and convicted.
Miranda’s lawyer, Alvin Moore, appealed to the Arizona Supreme Court six months later, posing the questions:
“Was [Miranda’s] statement made voluntarily?”
“Was [he] afforded all the safeguards to his rights, provided by the Constitution of the United States, and the law and rules of the court?”
The Arizona Supreme Court ruled in April 1965 that Miranda’s confession was legitimate.
However, Miranda’s case caught the eye of Robert Corcoran.
As an attorney with the Phoenix ACLU , he reached out to Arizona lawyer, John J. Flynn, to take the case.
Flynn recruited his colleague John P. Frank, an expert in constitutional law, to assist an appeal to the US Supreme Court.
They argued, Miranda was under duress of detainment and his confession should not have been admissible.
The Supreme Court, under Chief Justice Earl Warren, agreed and and declared that Miranda’s confession could not be used as evidence in a criminal trial.
Police procedures were encapsulated in the Miranda Warning, and police departments nationwide soon began distributing on index cards to their officers to recite to suspects.
Miranda’s case was set for re-trial, with the confession excluded from evidence but , his ex-girlfriend, Twila Hoffman, offered testimony against him, revealing Miranda told her about his crimes while he was in prison.
In October 1967, Miranda was convicted and sentenced to 20-30 years in prison and paroled by 1975.
Just over a month later, he was stabbed to death in a Phoenix bar fight and suspects were released after questioning.
Later, witness accounts would narrow the investigation to one, but by that time, the suspect had fled and was never apprehended.
For Miranda to apply, six requirements must be fulfilled:
- 1. Evidence must have been gathered.
- 2. The evidence must be testimonial.
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- meaning communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.
- This does not prohibit compelling a person to engage in non-assertive conduct that is incriminating such as giving handwriting or voice exemplars,fingerprints, DNA samples, hair samples, and dental impressions.
- 3. The evidence must have been obtained while the suspect was in custody.
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- This does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street—a Terry stop.
- Though neither the motorist nor the pedestrian is free to leave, this action is not considered actual arrest or its functional equivalent for purposes of the Fifth Amendment.
- The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not entitled to Miranda warnings .
- 4. The evidence must have been the product of interrogation.
- 5. The interrogation must have been conducted by state-agents.
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- A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda .
- Though not regarded generally as state-agents,
- an interrogation conducted by a police officer moonlighting as a security guard may trigger Miranda’s safeguards since an officer is considered to be “on duty” at all times.
- 6. The evidence must be offered by the state during a criminal prosecution.
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- The Fifth Amendment exclusionary rule applies only to criminal proceedings.
- The courts look at the punitive nature of the sanctions, which could be imposed -whether the consequences of an outcome adverse to the defendant could be characterized as punishment.
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- However, the possibility of loss of liberty does not make the proceeding criminal in nature.
- For example, if confinement is considered rehabilitative in nature and not punishment.
- Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.
Application of the prerequisites
Assuming that the six requirements are present and Miranda applies, the statement will be subject to suppression unless the prosecution can demonstrate:
- the suspect was advised of their Miranda rights
- the suspect voluntarily waived those rights or that the circumstances fit an exception to the Miranda rule.
Circumstances which trigger Miranda safeguards are “custody” (deprivation of freedom associated with formal arrest) and “interrogation” , explicit questioning or actions likely to elicit an incriminating response of suspects regardless of the nature or severity of the offense.
Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person arrested or placed in a custodial situation.
The typical warning states:
The courts have ruled that the warning must be “meaningful”, so it is usually requires the suspect be asked if he/she understands their rights.
Sometimes, firm answers of “yes” are required and some jurisdictions require the officer ask “do you understand?” after every sentence.
However ,Silence is not a waiver, and right’s must be said in a language the suspect understands orally or in writing, but oficers must take into account potential education levels and “translate” to the suspect’s level of understanding.
The “translation” is recorded either on paper or on tape.
Police are not required to advise suspects use of a lawyer cannot be used against them.
Nor have courts required police explain the rights.
For example,
Police are not required to explain that this right is not just a right to have a lawyer present while the suspect is being questioned.
The right to counsel includes:
- the right to talk to a lawyer before deciding whether to talk to police
- the right to answer police only through an attorney.
- The duty to warn does not require the defendant be advised of Miranda rights as part of the arrest procedure.
It is important to note that immigrants who live in the US illegally are also protected and should receive their Miranda warnings, as well when being interrogated or placed under arrest.
“Aliens receive constitutional protections when they have come within the territory of the US and [have] developed substantial connections with this country” defined by the Massiah Doctrine.
States bordering Mexico, including Texas, New Mexico, Arizona, and California, suspects who are not US citizens are given an additional warning:
If you are not a US citizen, you may contact your country’s consulate prior to any questioning.
Some states including Virginia require the following sentence:
You can decide at any time from this moment on to terminate the interview and exercise these rights.
California, Texas, New York, Florida, Illinois, North and South Carolina, Virginia, Washington and Pennsylvania also add the following questions, presumably to comply with the Vienna Convention on Consular Relations:
Question 1: Do you understand each of these rights I have explained to you?
Question 2: Having these rights in mind, do you wish to talk to us now?
An affirmative answer to both of the above questions waives the rights.
If the response is “no” to the first question, the officer is required to re-read the Miranda warning, and to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived.
However, neither the Fifth amendment nor Miranda extend to pre-arrest silence, which means if a defendant takes the witness stand at trial (he just waived his Fifth Amendment right), and the prosecutor can attack his credibility with his pre-arrest silence based on his failure to immediately turn himself in and confess to what is voluntarily testified about at trial.
Under the Uniform Code of Military Justice, Article 31 provides for the right against compelled self-incrimination.
Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881, which informs them of the charges and their rights, and the subjects must sign the form.
The United States Navy and United States Marine Corps require that all arrested personnel be read the “rights of the accused” and must sign a waiver form- a verbal waiver is not sufficient.
The suspect must also voluntarily waive their Miranda rights before questioning can proceed.
Waiver’s include questions designed to establish that the suspect expressly waived their rights.
Typical waiver questions are:
- “Do you understand each of these rights?”
- “Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?”
The waiver must be “knowing and intelligent” and it must be “voluntary“.
If police coercion is shown or evident, the court proceeds to determine the involuntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct.
However, the Supreme Court significantly altered the involuntariness standard in the case of Colorado v. Connelly,
“Coercive police activity is a necessary predicate to a finding that a confession is not ‘voluntary’, within the meaning of the Due Process Clause of the Fourteenth Amendment.
In addition to showing that the waiver was “voluntary“, the prosecution must also show that the waiver was “knowing” and “intelligent“.
The focus of the analysis is directly on the personal characteristics of the suspect:
If the suspect was under the influence of alcohol or other drugs, or suffered from an emotional or mental condition that substantially impaired their capacity to make rational decisions, the courts may well decide that the suspect’s waiver was not knowing and intelligent.
Any post-waiver assertion of a suspect’s Miranda rights must be clear and unequivocal.
Any ambiguity or equivocation will be ineffective.
If the suspect’s assertion is ambiguous, the interrogating officers are permitted to ask questions to clarify the suspect’s intentions.
In other words, if a suspect’s assertion is ambiguous, the police may either attempt to clarify the suspect’s intentions,
,or they may simply ignore the ineffective assertion and continue with the interrogation.
The timing of the assertion is significant.
Requesting an attorney prior to arrest is of no consequence because Miranda applies only to custodial interrogations.
The police may simply ignore the request and continue with the questioning; however, the suspect is also free to leave.
Assertion
If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation.
In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test.
The most important factors are the length of time between termination of original interrogation and commencement of a fresh set of Miranda warnings before resuming interrogation.
The consequences of assertion of Sixth Amendment right to counsel are stricter.
The police must immediately cease all interrogation and the police cannot re initiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant of his own volition contacts the police.
If the defendant does re initiate contact, a valid waiver must be obtained.
Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule.
The three exceptions are:
- the routine booking question exception
- the jail house informant exception
- the public safety exception.
The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information.
The “public safety” exception is a limited and case-specific exception, allowing certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there was great danger to public safety.
New York v. Quarles (1984), a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a suspect who was thought to be carrying a firearm.
The arrest took place during the middle of the night in a supermarket that was open to the public but apparently deserted , except for the clerks at the checkout counter.
When the officer arrested the suspect, he found an empty shoulder holster, handcuffed the suspect, and asked him where the gun was.
The suspect nodded in the direction of the gun (near some empty cartons) and said, “The gun is over there”.
The Supreme Court found that such an unadvised statement was admissible in evidence because “[i]n a situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer”.
Thus, the rule of Miranda must yield in “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda”.
Under this exception, to be admissible in the government’s direct case at a trial, the questioning must not be “actually compelled by police conduct which overcame his will to resist”, and must be focused and limited, involving a situation “in which police officers ask questions reasonably prompted by a concern for the public safety”.
In 2010, the Federal Bureau of Investigation encouraged agents to use a broad interpretation of public safety-related questions in terrorism cases, stating that the “magnitude and complexity” of terrorist threats justified “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case“, continuing to list such examples as:
“questions about possible impending or coordinated terrorist attacks; the location, nature and threat posed by weapons that might pose an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks”.
A Department of Justice spokesman described this position as not altering the constitutional right, but as clarifying existing flexibility in the rule.
Prosecutors initially argued for this exception to be applied to the 16-hour interrogation of Dzhokhar Tsarnaev in 2013.
However, the exception was not considered by the court because the prosecutors later decided not to use any of that evidence in their case against Tsarnaev
The New York Court of Appeals upheld the exception in a 2013 murder case, People v Doll, where a man with blood on his clothes was detained and questioned.
Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited.
The public safety exception applies where circumstances present a clear and present danger to the public’s safety and the officers have reason to believe that the suspect has information that can end the emergency.
Consequences of violation:
Assuming that a Miranda violation occurred—the six factors are present and no exception applies—the statement will be subject to suppression under the Miranda exclusionary rule.
That is, if the defendant objects or files a motion to suppress, the exclusionary rule would prohibit the prosecution from offering the statement as proof of guilt.
However, the statement can be used to impeach the defendant’s testimony.
Further, the fruit of the poisonous tree doctrine does not apply to Miranda violations.
Therefore, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play, and derivative evidence would be fully admissible.
For example, suppose the police continue with a custodial interrogation after the suspect has asserted his right to silence.
During his post-assertion statement the suspect tells the police the location of the gun he used in the murder.
Using this information the police find the gun.
Forensic testing identifies the gun as the murder weapon, and fingerprints lifted from the gun match the suspect’s.
The contents of the Miranda-defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence could be used as evidence at trial.
