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Effects of the Miranda Decision

The Miranda decision was widely criticized when it came down, as many felt it was unfair to inform suspected criminals of their rights, as outlined in the decision. Richard M. Nixon and other conservatives denounced Miranda for undermining the efficiency of the police, and argued the ruling would contribute to an increase in crime. Nixon, upon becoming President, promised to appoint judges who would be “strict constructionists” and who would exercise judicial restraint. Many supporters of law enforcement were angered by the decision’s negative view of police officers. The federal Omnibus Crime Control and Safe Streets Act of 1968 purported to overrule Miranda for federal criminal cases and restore the “totality of the circumstances” test that had prevailed previous to Miranda. The validity of this provision of the law, which is still codified at 18 U.S. Code 3501, was not ruled on for another 30 years because the Justice Department never attempted to rely on it to support the introduction of a confession into evidence at any criminal trial. Miranda was undermined by several subsequent decisions which seemed to grant several exceptions to the “Miranda warnings,” undermining its claim to be a necessary corollary of the Fifth Amendment.

As the years wore on however, Miranda grew to be familiar and widely accepted. Due to the prevalence of American television police dramas made since that decision in which the police read suspects their “Miranda rights,” it has become an expected element of arrest procedure. Americans began to feel that the warnings contributed to the legitimacy of police interrogations. In the actual practice, it was found many suspects waived their Miranda rights and confessed anyway.[citation needed]

Since it is usually required the suspect be asked if they understand their rights, courts have also ruled that any subsequent waiver of Miranda rights must be knowing, intelligent, and voluntary. Many American police departments have pre-printed Miranda waiver forms which a suspect must sign and date (after hearing and reading the warnings again) if an interrogation is to occur.

But the words “knowing, intelligent, and voluntary” mean only that the suspect reasonably appears to understand what they are doing, and is not being coerced into signing the waiver; the Court ruled in Colorado v. Connelly, 479 U.S. 157 (1986) that it is irrelevant whether the suspect may actually have been insane at the time.

A confession obtained in violation of the Miranda standards may nonetheless be used for purposes of impeaching the defendant’s testimony: that is, if the defendant takes the stand at trial and the prosecution wishes to introduce the defendant’s confession as a prior inconsistent statement to attack the defendant’s credibility, the Miranda holding will not prohibit this (see Harris v. New York, 401 U.S. 222 (1971)).

A “spontaneous” statement made by a defendant while in custody, even though the defendant has not been given the Miranda warnings or has invoked the right to counsel and a lawyer is not yet present, is admissible in evidence, as long as the statement was not given in response to police questioning or other conduct by the police likely to produce an incriminating response (see Rhode Island v. Innis, 446 U.S. 291 (1980)).

There is also a “public safety” exception to the requirement that Miranda warnings be given before questioning: for example, if the defendant is in possession of information regarding the location of an unattended gun or there are other similar exigent circumstances which require protection of the public, the defendant may be questioned without warning and his responses, though incriminating, will be admissible in evidence (see New York v. Quarles, 467 U.S. 649 (1984)). In 2009 the California Supreme Court upheld the conviction of Richard Allen Davis, finding that the public safety exception applied despite the fact that 64 days had passed from the disappearance of the girl later found to be murdered.[3]

The six rules

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.[4] Therefore, for Miranda to apply six factors must be present:

  1. Evidence must have been gathered.
  2. The evidence must be testimonial.[5]
  3. The evidence must have been obtained while the suspect was in custody.[6]
  4. The evidence must have been the product of interrogation.[7]
  5. The interrogation must have been conducted by state-agents.[8]
  6. The evidence must be offered by the state during a criminal prosecution.[9]

The first requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no import. Second, Miranda applies only to “testimonial” evidence as that term is defined under the Fifth Amendment. For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.

The Miranda rule does not prohibit compelling a person to engage in non-assertive conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving handwriting or voice exemplars, fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause.

On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question “did you kill the victim” the conduct is testimonial, it is the same as saying “yes I did” and Miranda would apply.
Third, the evidence must have been obtained while the suspect was in custody. This limitation follows from the fact that Miranda’s purpose is to protect suspects from the compulsion inherent in the police dominated atmosphere attendant to arrest. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent “associated with a formal arrest.”

A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. Telling a person he is “under arrest” is sufficient to satisfy this requirement even though the person may not be otherwise physically restrained.

Absent a formal arrest, the issue is whether a reasonable person in the suspect’s position would have believed that he was under “full custodial” arrest. Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street – a Terry stop. Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of 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 in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave.

Fourth, the evidence must have been the product of interrogation. A defendant who seeks to challenge the admissibility of a statement under Miranda must show that the statement was “prompted by police conduct that constituted ‘interrogation'”. A volunteered statement by a person in custody does not implicate Miranda.

In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Thus, a practice that the police “should know is reasonably likely to evoke an incriminating response from a suspect … amounts to interrogation.” For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are implicitly communicating a question: “How do you explain this?”[24] On the other hand, “unforeseeable results of [police] words or actions” do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda.

For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, “I couldn’t do that even if I was sober”, would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.

Fifth, the interrogation must have been conducted by state-agents. In order to establish a violation of the defendant’s Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent. If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that they are being questioned by the police.

Private security guards and “private” police present special problems. They are generally not regarded as state-agents. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda’s safeguards since an officer is considered to be “on duty” at all times.

Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature.

For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the 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.

Assuming that the six factors are present and Miranda applies, the statement will be subject to suppression unless the prosecution can demonstrate (1) that the suspect was advised of their Miranda rights and (2) that the suspect voluntarily waived those rights or that the circumstances fit an exception to the Miranda rule. The defendant may also be able to challenge the admissibility of the statement under provisions of state constitutions and state criminal procedure statutes.

The Miranda Warnings

The suspect must be properly advised of their Miranda rights. The constitutional rights safeguarded by Miranda are the Sixth Amendment right to counsel and the Fifth Amendment right against compelled self incrimination. The Sixth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent – the right to refuse to answer questions or to otherwise communicate information.

Therefore, before any interrogation begins, the police must advise the suspect that they have (1) the right to remain silent; (2) that anything the suspect says can be used against him; (3) that the suspect has the right to have an attorney present before and during the questioning and (4) the suspect has the right to have a “free” attorney appointed to represent them before and during the questioning if the suspect cannot afford to hire an attorney. There is no precise language that must be used in advising a suspect of their Miranda rights. The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect. The suspect may be advised of their rights orally or in writing.

The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights. For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights. For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely 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, if the defendant decides to talk to the police, the right to consult with a lawyer before being interrogated, or the right to talk to an attorney while talking to police.

It is important to reemphasize that the duty to warn only arose when police officers conduct custodial interrogations. The constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation, Custody and interrogation are the events that trigger the duty to warn.

Waiver

Simply advising the suspect of their rights does not fully comply with the Miranda rule. The suspect must also voluntarily waive their Miranda rights before questioning can proceed. An express waiver is not necessary. However, most law enforcement agencies use written waiver forms which include questions designed to establish that the suspect expressly waived their rights. Typical waiver questions are (1) “Do you understand each of these rights?” and (2) “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.” These are separate requirements. To satisfy the first requirement the state must show that the suspect generally understood their rights (right to remain silent and right to counsel) and the consequences of forgoing those rights (that anything they said could be used against them in court). To show that the waiver was “voluntary” the state must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness 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.

The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances. As noted previously, courts traditionally focused on two categories of factors in making this determination: (1) the personal characteristics of the suspect and (2) the circumstances attendant to the waiver.

However, the Supreme Court significantly altered the voluntariness standard in the case of Colorado v. Connelly. In Connelly the Court held that “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.” The Court has applied this same standard of voluntariness is determining whether a waiver of a suspect’s Fifth Amendment Miranda rights was voluntary.

Thus, a waiver of Miranda rights is voluntary unless the defendant can show that their decision to waive their rights and speak to the police was the product of police misconduct and coercion that overcame the defendant’s free will. After Connelly the traditional totality of circumstances analysis is not even reached unless the defendant can first show such coercion by the police. Under Connelly, a suspect decisions need not be the product of rational deliberations. In addition to showing that the waiver was “voluntary”, the prosecution must also show that the waiver was “knowing” and “intelligent”. Essentially this means the prosecution must prove that the suspect had a basic understanding of their rights and an appreciation of the consequences of foregoing those rights. The focus of the analysis is directly on the personal characteristics of the suspect. If the suspect was under the influence of alcohol or 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.

A waiver must also be clear and unequivocal. An equivocal statement is ineffective as a waiver and the police may not proceed with the interrogation until the suspect’s intentions are made clear. The requirement that a waiver be unequivocal is to be distinguished from situations in which the suspect makes an equivocal assertion of their Miranda rights after the interrogation has begun.

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, although they are not required to. 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 the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter. The police must immediately cease all interrogation and the police cannot reinitiate 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 reinitiate contact, a valid waiver must be obtained before interrogation may resume.

Exceptions

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 (1) the routine booking question exception[47] (2) the jail house informant exception and (3) the public safety exception.[48] Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered “interrogation” under Miranda because they are not intended or likely to produce incriminating responses.

Nonetheless, all three circumstances are treated as exceptions to the rule. 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 window of opportunity for the exception is small. 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. Since the fruit of the poisonous tree doctrine does not apply to Miranda violations, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play.

Therefore, derivative evidence would be fully admissible. For example, 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. Following this information the police find the gun. Forensic testing identify 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 would not be subject to suppression.

Procedural Requirements

Although the rules vary by jurisdiction, generally a person who wishes to contest the admissibility of evidence on the grounds that it was obtained in violation of his constitutional rights must comply with the following procedural requirements:

  1. The defendant must file a motion.
  2. The motion must be in writing.
  3. The motion must be filed before trial.
  4. The motion must allege the factual and legal grounds on which the defendant seeks suppression of evidence.
  5. The motion must be supported by affidavits or other documentary evidence.
  6. The motion must be served on the state.

Failure to comply with a procedural requirement may result in summary dismissal of the motion. If the defendant meet the procedural requirement the motion will normally be considered by the judge outside the presence of the jury. The judge hears evidence, determines the facts, makes conclusions of law and enters an order allowing or denying the motion.

Analyzing Miranda

1. Was the defendant interrogated?

a. Was the defendant questioned? OR

b. Did the interrogators engage in conduct reasonably likely to elicit an incriminating response?
If “Yes” go to 2; If “No”, Miranda does not apply.

2. Was the interrogation conducted by government agents?

If “Yes” go to 3; If “No”, Miranda does not apply.

3. Did the government agents obtain testimonial evidence as a result of the interrogation?

If “Yes” go to 4; If “No”, Miranda does not apply.

4. Was the defendant in custody during the interrogation?

a. Was the defendant under arrest? OR

b. Would a reasonable person in the defendant’s position believe that she was under arrest?

If “Yes” go to 5; If “No”, Miranda does not apply.

5. Before any custodial interrogation began did the government agents properly advise the defendant of her Miranda rights?

If “Yes” go to 6; If “No”, go to 19.

6. Did the defendant waive her rights?

If “Yes” go to 7; If “No”, go to 19.

7. Was the waiver “knowing and intelligent”?

If “Yes” go to 8; If “No”, go to 19.

8. Was the waiver “voluntary”

If “Yes” go to 9;  If “No”, go to 19.

9. Did the defendant invoke either or both of her rights?

If “Yes” go to 10; If “No”, go to 19.

10. Did the defendant invoke her right to remain silent?

If “Yes” go to 11; If “No”, go to 13.
11. Did the police immediately cease all interrogation?

If “Yes” go to 12; If “No”, go to 19.

12. Did the police scrupulously honor the defendant’s assertion of his right to remain silent?

If “Yes” go to 10; If “No”, go to 19.

13. Did the defendant invoke her right to counsel?

If “Yes” go to 14; If “No”, go to 19.

14. Did the police immediately cease all interrogation?

If “Yes” go to 13; If “No”, go to 19.

15. Did the police resume the interrogation?

If “Yes” go to 16; If “No”, Miranda does not apply.

16. Was the defendant’s lawyer present?

if “Yes” go to 18, if “No” go to 17.

17. Did the defendant re-initiate conduct with the police before the interrogation resumed?

If “Yes” go to 18; If “No”, go to 19.

18. Before resuming the custodial interrogation did the police re-advise defendant of her Miranda rights?

If “Yes” go to 20;  If “No”, go to 19.

19. Does an exception apply?

a. Routine Booking Questions? OR
b. Jail House Informant? OR
c. Public Safety?

If “Yes” or “No” go to 19.

20. Was the statement “voluntary” under the due process clause?

a. Was there “police misconduct”?
b. Did the police misconduct cause the suspect to make a statement?

c. Was the statement “involuntary” under the totality of circumstances test?

(Note: if 20a or 20b is answered “NO” that ends the due process analysis – the totality of circumstances test is not reached. Note also that courts have applied the same test in determining whether a waiver was voluntary. Thus absent police misconduct surrounding the waiver the totality of circumstances inquiry is not triggered.)


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H. Michael Steinberg Esq.
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