Miranda warning

Page of the manuscript written by Chief Justice

Earl Warren regarding the Miranda v. Arizona
Earl Warren regarding the Miranda v. Arizona
decision. This page established the basic
requirements of the "Miranda warning".

In the United States, the Miranda

warning is a type of notification
customarily given by police to criminal
suspects in police custody (or in a
custodial interrogation) advising them
of their right to silence; that is, their
right to refuse to answer questions or
provide information to law enforcement
or other officials. These rights are often
referred to as Miranda rights. The
purpose of such notification is to
preserve the admissibility of their
statements made during custodial
interrogation in later criminal
proceedings.

A typical Miranda warning can read as

follows:

You have the right to remain

silent. Anything you say can
and will be used against you in
a court of law. You have the
right to have an attorney. If
you cannot afford one, one will
be appointed to you by the
 court. With these rights in
mind, are you still willing to
talk with me about the
charges against you?

The Miranda warning is part of a

preventive criminal procedure rule that
law enforcement are required to
administer to protect an individual who
is in custody and subject to direct
questioning or its functional equivalent
from a violation of his or her Fifth
Amendment right against compelled
self-incrimination. In Miranda v. Arizona
(1966), the Supreme Court held that the
admission of an elicited incriminating
statement by a suspect not informed of
these rights violates the Fifth
Amendment and the Sixth Amendment
right to counsel, through the
incorporation of these rights into state
law.[Note 1] Thus, if law enforcement
officials decline to offer a Miranda
warning to an individual in their
custody, they may interrogate that
person and act upon the knowledge
gained, but may not use that person's
statements as evidence against them
in a criminal trial.
Origin and development of
Miranda rights

A U.S. Customs and Border Protection (CBP)

Border Patrol agent reading the Miranda rights to
a suspect

The concept of "Miranda rights" was

enshrined in U.S. law following the
1966 Miranda v. Arizona Supreme Court
decision, which found that the Fifth and
Sixth Amendment rights of Ernesto
Arturo Miranda had been violated
during his arrest and trial for armed
robbery, kidnapping, and rape of a
mentally handicapped young woman
(Miranda was subsequently retried and
convicted, based primarily on his
estranged ex-partner, who had been
tracked down by the original arresting
officer via Miranda's own parents,
suddenly claiming that Miranda had
confessed to her when she had visited
him in jail; Miranda's lawyer later
confessed that he 'goofed' the trial[1]).

The circumstances triggering the

Miranda safeguards, i.e. Miranda rights,
are "custody" and "interrogation".
Custody means formal arrest or the
deprivation of freedom to an extent
associated with formal arrest.
Interrogation means explicit
questioning or actions that are
reasonably likely to elicit an
incriminating response. The Supreme
Court did not specify the exact wording
to use when informing a suspect of
his/her rights. However, the Court did
create a set of guidelines that must be
followed. The ruling states:
...The person in custody must,
prior to interrogation, be
clearly informed that he/she
has the right to remain
silent, and that anything the
person says will be used
against that person in court;
the person must be clearly
informed that he/she has the
right to consult with an
attorney and to have that
attorney present during
questioning, and that, if
 he/she is indigent, an
attorney will be provided at
no cost to represent him/her.

In Berkemer v. McCarty (1984), the

Supreme Court decided that a person
subjected to custodial interrogation is
entitled to the benefit of the procedural
safeguards enunciated in Miranda,
regardless of the nature or severity of
the offense of which he is suspected or
for which he was arrested.[2]

As a result, American English

developed the verb Mirandize, meaning
"read the Miranda rights to" a suspect
(when the suspect is arrested).[3]

Notably, the Miranda rights do not have

to be read in any particular order, and
they do not have to precisely match the
language of the Miranda case as long
as they are adequately and fully
conveyed (California v. Prysock, 453
U.S. 355 (1981)[4]).

In Berghuis v. Thompkins (2010), the

Supreme Court held that unless a
suspect expressly states that he or she
is invoking this right, subsequent
voluntary statements made to an
officer can be used against them in
court, and police can continue to
interact with (or question) the alleged
criminal.

The warnings
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:[5]

You have the right to remain silent

and refuse to answer questions.
Anything you say may be used
against you in a court of law.
You have the right to consult an
attorney before speaking to the
police and to have an attorney
present during questioning now or in
the future.
If you cannot afford an attorney, one
will be appointed for you before any
questioning if you wish.
If you decide to answer questions
now without an attorney present, you
will still have the right to stop
 answering at any time until you talk
to an attorney.
Knowing and understanding your
rights as I have explained them to
you, are you willing to answer my
questions without an attorney
present?

The courts have since ruled that the

warning must be "meaningful", so it is
usually required that the suspect be
asked if he/she understands their
rights. Sometimes, firm answers of
"yes" are required. Some departments
and jurisdictions require that an officer
ask "do you understand?" after every
sentence in the warning. An arrestee's
silence is not a waiver, but on June 1,
2010, the Supreme Court ruled 5–4 that
police are allowed to interrogate
suspects who have invoked or waived
their rights ambiguously, and any
statement given during questioning
prior to invocation or waiving is
admissible as evidence.[6] Evidence has
in some cases been ruled inadmissible
because of an arrestee's poor
knowledge of English and the failure of
arresting officers to provide the
warning in the arrestee's language.[7]
While the exact language above is not
required by Miranda, the police must
advise the suspect that:

1. they have the right to remain silent;

2. anything the suspect does say can
and may be used against them in a
court of law;
3. they have the right to have an
attorney present before and during the
questioning; and
4. they have the right, if they cannot
afford the services of an attorney, to
have one appointed, at public expense
and without cost to them, to represent
them before and during the
questioning.[8]

There is no precise language that must

be used in advising a suspect of their
Miranda rights.[9] The point is that
whatever language is used the
substance of the rights outlined above
must be communicated to the
suspect.[10] The suspect may be
advised of their rights orally or in
writing.[11] Also, officers must make
sure the suspect understands what the
officer is saying, taking into account
potential education levels. It may be
necessary to "translate" to the
suspect's level of understanding.
Courts have ruled this admissible as
long as the original waiver is said and
the "translation" is recorded either on
paper or on tape.

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 the 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,
the right to answer police only
through an attorney.[12]

Circumstances triggering
the Miranda requisites

The circumstances triggering the

Miranda safeguards, i.e. Miranda
warnings, are "custody" and
"interrogation". Custody means formal
arrest or the deprivation of freedom to
an extent associated with formal
arrest. Interrogation means explicit
questioning or actions that are
reasonably likely to elicit an
incriminating response. Suspects in
"custody" who are about to be
interrogated must be properly advised
of their Miranda rights—namely, the
Fifth Amendment right against
compelled self incrimination (and, in
furtherance of this right, the right to
counsel while in custody). 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.

The duty to warn only arises 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 an 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.

Use in various U.S. state

jurisdictions

Police detectives read the Miranda rights to a

fugitive felon, 1984 (photography: J. Ross
Baughman)

Some jurisdictions provide the right of

a juvenile to remain silent if their parent
or guardian is not present. Some
departments in New Jersey, Nevada,
Oklahoma, and Alaska modify the
"providing an attorney" clause as
follows:

We have no way of giving

you a lawyer, but one will be
appointed for you, if you
wish, if and when you go to
court.

Even though this sentence may be

somewhat ambiguous to some
laypersons, who can, and who have
actually interpreted it as meaning that
they will not get a lawyer until they
confess and are arraigned in court, the
U.S. Supreme Court has approved of it
as an accurate description of the
procedure in those states.[13]

In states bordering Mexico, including

Texas, New Mexico, Arizona, and
California, suspects who are not United
States citizens are given an additional
warning:[14][15][16][17][18][19]

If you are not a United States

 citizen, you may contact your
country's consulate prior to
any questioning.

Some states including Virginia require

the following sentence, ensuring that
the suspect knows that waiving
Miranda rights is not a one-time
absolute occurrence:[17][18][19][20]

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 Carolina, South Carolina,
Virginia, Washington and Pennsylvania
also add the following questions,
presumably to comply with the Vienna
Convention on Consular
Relations:[17][18][19]

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 suspect responds "no" to the first
question, the officer is required to re-
read the Miranda warning, while saying
"no" 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.
Generally, when defendants invoke
their Fifth Amendment right against
self-incrimination and refuse to testify
or submit to cross-examination at trial,
the prosecutor cannot indirectly punish
them for the exercise of a
constitutional right by commenting on
their silence and insinuating that it is an
implicit admission of guilt.[21] Since
Miranda rights are simply a judicial
gloss upon the Fifth Amendment which
protects against coercive
interrogations, the same rule also
prevents prosecutors from
commenting about the post-arrest
silence of suspects who invoke their
Miranda rights immediately after
arrest.[22] However, neither the Fifth
Amendment nor Miranda extend to pre-
arrest silence, which means that if a
defendant takes the witness stand at
trial (meaning he just waived his Fifth
Amendment right to remain silent), the
prosecutor can attack his credibility
with his pre-arrest silence (based on
his failure to immediately turn himself
in and confess to the things he
voluntarily testified about at trial).[23]

Under the Uniform Code of Military

Justice, Article 31[24] 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 form waiving
those rights if they so desire; a verbal
waiver is not sufficient.
It has been discussed whether a
Miranda warning—if spoken or in
writing—could be appropriately given to
disabled persons. For example, "the
right to remain silent" means little to a
deaf individual and the word
"constitutional" may not be understood
by people with only an elementary
education. In one case, a deaf murder
suspect was kept at a therapy station
until he was able to understand the
meaning of the Miranda warning and
other judicial proceedings.[25]

The six rules

The Miranda rule applies to the use of
testimonial evidence in criminal
proceedings that is the product of
custodial police interrogation. The
Miranda right to counsel and right to
remain silent are derived from the self-
incrimination clause of the Fifth
Amendment.[26] Therefore, for Miranda
to apply, six requirements must be
fulfilled:

1. Evidence must have been

gathered.
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
importance.[27] Nor can the state
offer evidence that the defendant
asserted his rights—that he
refused to talk.
2. The evidence must be
testimonial.[28]
Miranda applies only to
"testimonial" evidence as that term
is defined under the Fifth
Amendment.[28] 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.[29][30] 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[31] or voice
exemplars,[32] 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.[33] On the other hand,
certain non-verbal conduct may be
testimonial. For example, if the
suspect nodded their head up and
down in response to the question
"did you kill the victim", the
conduct is testimonial, is the same
as saying "yes I did", and Miranda
would apply.[34]
3. The evidence must have been
obtained while the suspect was in
custody.[35]
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".[36] 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.[37]
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.[38]
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.[39] 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.[40] 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.[41]
4. The evidence must have been the
product of interrogation.[42]
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'".[43] 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?"[44] 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. (Note that
the police will not tell the person
that they have the right to refuse to
perform the test, and the refusal
cannot be used in evidence
against them, nor can they be in
any way punished for refusing to
perform it, same as the police will
not tell someone that they may
refuse to perform a roadside
sobriety test without penalty). An
incriminating statement made by
an 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.[45]
5. The interrogation must have been
conducted by state-agents.[46]
To establish a violation of the
defendant's Fifth Amendment
rights, the defendant must show
state action, so the interrogation
must have been conducted by
state-agents.[47] 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.[48]
6. The evidence must be offered by
the state during a criminal
prosecution.[49]
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.

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:

that the suspect was advised of their

Miranda rights

and
 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.[50]

It is important to note that immigrants

who live in the United States 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 United States
and [have] developed substantial
connections with this country".[51]

The Fifth Amendment right to counsel,

a component of the Miranda Rule, is
different from the Sixth Amendment
right to counsel. In the context of the
law of confessions the Sixth
Amendment right to counsel is defined
by the Massiah Doctrine (Massiah v.
United States, 377 U.S. 201 (1964)).
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.[52] An
express waiver is not necessary.[53]
However, most law enforcement
agencies use written waiver forms.
These include questions designed to
establish that the suspect expressly
waived their rights. Typical waiver
questions are
 "Do you understand each of these
rights?"

and

"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.[54] 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."[55] The
Court has applied this same standard
of voluntariness in 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.[56] Under Connelly, a
suspect's decisions need not be the
product of rational deliberations.[57] 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
forgoing 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 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.

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 must be distinguished
from situations in which the suspect
made an equivocal assertion of their
Miranda rights after the interrogation
began. Any post-waiver assertion of a
suspect's Miranda rights must be clear
and unequivocal.[58] 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.[59] 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.[59] 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.[60] 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 Sixth

Amendment right to counsel are
stricter.[61] 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.[62] If
the defendant does reinitiate contact, a
valid waiver must be obtained before
interrogation may resume.
In Berghuis v. Thompkins (2010), the
Supreme Court declared in a 5–4
decision that criminal defendants who
have been read their Miranda rights
(and who have indicated they
understand them and have not already
waived them), must explicitly state
during or before an interrogation
begins that they wish to be silent and
not speak to police for that protection
against self-incrimination to apply. If
they speak to police about the incident
before invoking the Miranda right to
remain silent, or afterwards at any point
during the interrogation or detention,
the words they speak may be used
against them if they have not stated
they do not want to speak to police.
Those who oppose the ruling contend
that the requirement that the defendant
must speak to indicate his intention to
remain silent further erodes the ability
of the defendant to stay completely
silent about the case. This opposition
must be put in context with the second
option offered by the majority opinion,
which allowed that the defendant had
the option of remaining silent, saying:
"Had he wanted to remain silent, he
could have said nothing in response or
unambiguously invoked his Miranda
rights, ending the interrogation." Thus,
having been "Mirandized", a suspect
may avow explicitly the invocation of
these rights, or, alternatively, simply
remain silent. Absent the former,
"anything [said] can and will be used
against [the defendant] in a court of
law".

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.[63] The
three exceptions are:

1. the routine booking question

exception[64]
2. the jail house informant exception
and
3. the public safety exception.[65]

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.[66]

Public safety exception

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; thus, the Miranda rule provides
some elasticity.[67]
The public safety exception derives
from 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 rape 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 (which was 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 kaleidoscopic 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".[68] Thus, the jurisprudential 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".[69]

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.[70]

Prosecutors initially argued for this

exception to be applied[71] to the 16-
hour interrogation of Dzhokhar
Tsarnaev in connection with the 2013
Boston Marathon bombings.[72]
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.[73]

The New York Court of Appeals upheld

the exception in a 2013 murder case,
People v Doll,[74] where a man with
blood on his clothes was detained and
questioned.[75]

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.[76] 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.[77]

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.[78] 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.[79]
Further, the fruit of the poisonous tree
doctrine does not apply to Miranda
violations.[80] 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.

Procedural requirements

Although the rules vary by jurisdiction,

generally a person who wishes to
contest the admissibility of evidence[81]
on the grounds that it was obtained in
violation of his constitutional rights[82]
must comply with the following
procedural requirements:
1. The defendant must file a motion.[83]
2. The motion must be in writing.[84]
3. The motion must be filed before
trial.[85]
4. The motion must allege the factual
and legal grounds on which the
defendant seeks suppression of
evidence.[86]
5. The motion must be supported by
affidavits or other documentary
evidence.[87]
6. The motion must be served on the
state.[83]

Failure to comply with a procedural

requirement may result in summary
dismissal of the motion.[83] If the
defendant meets 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.[88]

Related doctrines
In addition to Miranda, confession may
be challenged under the Massiah
Doctrine, the Voluntariness Standard,
Provisions of Federal and State rules of
criminal procedure and State
Constitutional provisions.

Massiah Doctrine

The Massiah Doctrine (established by

Massiah v. United States) prohibits the
admission of a confession obtained in
violation of the defendant's Sixth
Amendment right to counsel.
Specifically, the Massiah rule applies to
the use of testimonial evidence in
criminal proceedings deliberately
elicited by the police from a defendant
after formal charges have been filed.
The events that trigger the Sixth
Amendment safeguards under Massiah
are (1) the commencement of
adversarial criminal proceedings and
(2) deliberate elicitation of information
from the defendant by governmental
agents.

The Sixth Amendment guarantees a

defendant a right to counsel in all
criminal prosecutions. The purposes of
the Sixth Amendment right to counsel
are to protect a defendant's right to a
fair trial and to assure that the
adversarial system of justice functions
properly by providing competent
counsel as an advocate for the
defendant in his contest against the
"prosecutorial forces" of the state.

Commencement of adversarial
criminal proceedings

The Sixth Amendment right "attaches"

once the government has committed
itself to the prosecution of the case by
the initiation of adversarial judicial
proceedings "by way of formal charge,
preliminary hearing, indictment,
information or arraignment".[89]
Determining whether a particular event
or proceeding constitutes the
commencement of adversarial criminal
proceedings requires both an
examination of the rules of criminal
procedure for the jurisdiction in which
the crime is charged and the Supreme
Courts cases dealing with the issue of
when formal prosecution begins.[90]
Once adversarial criminal proceedings
commence the right to counsel applies
to all critical stages of the prosecution
and investigation. A critical stage is
"any stage of the prosecution, formal or
informal, in court or out, where
counsel's absence might derogate from
the accused's right to a fair trial".[91]

Government attempts to obtain

incriminating statement related to the
offense charged from the defendant by
overt interrogation or surreptitious
means is a critical stage and any
information thus obtained is subject to
suppression unless the government
can show that an attorney was present
or the defendant knowingly, voluntarily
and intelligently waived his right to
counsel.[92]

Deliberate elicitation of
Deliberate elicitation of
information from the
defendant by governmental
agents

Deliberate elicitation is defined as the

intentional creation of circumstances
by government agents that are likely to
produce incriminating information from
the defendant.[93] Clearly express
questioning (interrogation) would
qualify but the concept also extends to
surreptitious attempts to acquire
information from the defendant
through the use of undercover agents
or paid informants.[94]
The definition of "deliberate elicitation"
is not the same as the definition of
"interrogation" under the Miranda rule.
Miranda interrogation includes express
questioning and any actions or
statements that an officer would
reasonably foresee as likely to cause
an incriminating response. Massiah
applies to express questioning and any
attempt to deliberately and intentionally
obtain incriminating information from
the defendant regarding the crime
charged. The difference is purposeful
creation of an environment likely to
produce incriminating information
(Massiah) and action likely to induce an
incriminating response even if that was
not the officer's purpose or intent
(Miranda).

The Sixth Amendment right to counsel

is offense-specific – the right only
applies to post-commencement
attempts to obtain information relating
to the crime charged.[95] The right does
not extend to uncharged offenses if
factually related to the charged
crime.[96]

As noted, information obtained in

violation of the defendant's Sixth
Amendment right to counsel is subject
to suppression unless the government
can establish that the defendant
waived his right to counsel. The waiver
must be knowing, intelligent and
voluntary.[97] A valid Miranda waiver
operates as a waiver of Sixth
Amendment right.

Miranda and Massiah

compared

1. Constitutional basis:
Miranda is based on the Sixth
Amendment right to counsel and
 the Fifth Amendment right to
remain silent.
Massiah is based on the Sixth
Amendment right to counsel.
2. Attachment:
Miranda: Custody + interrogation
(charging status irrelevant).
Massiah: Formally charged +
deliberate elicitation (custodial
status irrelevant).
3. Scope:
a. Miranda applies to custodial
interrogation by known
governmental agents. Surreptitious
 acquisition of incriminating
information allowed.
a. Massiah applies to overt and
surreptitious interrogation.
b. Miranda is not offense
specific.[98]
b. Massiah is offense specific.[99]
c. Miranda: interrogation +
"functional equivalent"
c. Massiah: interrogation +
"deliberate elicitation"
4. Waiver: Both Miranda and Massiah
rights may be waived.
5. Assertion: In each case, the
assertion must be clear and
unequivocal. The effects of assertion
are not identical. For purposes of
Miranda, the police must immediately
cease the interrogation and cannot
resume interrogating the defendant
about any offense charged or
uncharged unless counsel is present or
defendant initiates contact for
purposes of resuming interrogation and
valid waiver obtained. Because
Massiah is offense-specific, an
assertion of the sixth amendment right
to counsel requires the police to cease
interrogating the defendant about any
charged offense. Apparently the police
could continue questioning the
defendant about uncharged crimes
assuming that the defendant was not in
custody. The defendant's remedy
would be to leave or to refuse to
answer questions.[100]
6. Remedy for violation: The remedy
for violation of Fifth and Sixth
Amendment rights to counsel is
identical: the statements and
testimonial information are subject to
suppression. Derivative evidence is not
subject to suppression under
Miranda – fruit of poisonous tree
doctrine may apply to Massiah
violation.[101] Both Miranda and
Massiah defective statements can be
used for impeachment purposes.
7. Exceptions: The primary exceptions
to Miranda are (1) the routine booking
questions exception (2) the jail house
informant exception and (3) the public
safety exception. In Moulton v. Maine
the Supreme Court refused to
recognize a public safety exception to
the Massiah rule.[102] Massiah allows
for the use of jail house informants
provided the informants serve merely
as "passive listeners".[103]
The voluntariness standard

The voluntariness standard applies to

all police interrogations regardless of
the custodial status of the suspect and
regardless of whether the suspect has
been formally charged. The remedy for
a violation of the standard is complete
suppression of the statement and any
evidence derived from the statement.
The statement cannot be used as
either substantive evidence of guilt or
to impeach the defendant's
testimony.[104] The reason for the
strictness is the common law's
aversion to the use of coerced
confessions because of their inherent
unreliability. Further the rights to be
free from coerced confession cannot
be waived nor is it necessary that the
victim of coercive police conduct
assert his right. In considering the
voluntariness standard one must
consider the Supreme Court's decision
in Colorado v. Connelly.[105] Although
federal courts' application of the
Connelly rule has been inconsistent
and state courts have often failed to
appreciate the consequences of the
case, Connelly clearly marked a
significant change in the application of
the voluntariness standard. Before
Connelly the test was whether the
confession was voluntary considering
the totality of the circumstances.[106]
"Voluntary" carried its everyday
meaning: the confession had to be a
product of the exercise of the
defendant's free will rather than police
coercion.[107] After Connelly the totality
of circumstances test is not even
triggered unless the defendant can
show coercive police conduct.[108]
Questions of free will and rational
decision making are irrelevant to a due
process claim unless police
misconduct existed and a causal
connection can be shown between the
misconduct and the confession.[109]

State constitutional
challenges

Every state constitution has articles

and provision guaranteeing individual
rights.[110] In most cases the subject
matter is similar to the federal bill of
rights.[111] Most state courts
interpretation of their constitution is
consistent with the interpretation
federal court's of analogous provisions
of the federal constitution. With regard
to Miranda issues, state courts have
exhibited significant resistance to
incorporating into their state
jurisprudence some of the limitations
on the Miranda rule that have been
created by the federal courts.[112] As a
consequence a defendant may be able
to circumvent the federal limitation on
the Miranda rule and successfully
challenge the admissibility under state
constitutional provisions. Practically
every aspect of the Miranda rule has
drawn state court criticism. However
the primary point of contention involve
the following limitations on the scope
of the Miranda rule: (1) the Harris
exception[113] (2) the Burbine rule[114]
and (3) the Fare rule.[115]

State statutory challenges

In addition to constitutionally based

challenge, states permit a defendant to
challenge the admissibility of a
confession on the grounds that the
confession was obtained in violation of
a defendant's statutory rights. For
example, North Carolina Criminal
Procedure Act permits a defendant to
move to suppress evidence obtained
as a result of a "substantial" violation of
the provision of the North Carolina
Rules of Criminal Procedure.

Confusion regarding use

Due to the prevalence of American
television programs and motion
pictures in which the police characters
frequently read suspects their rights, it
has become an expected element of
arrest procedure—in the 2000
Dickerson decision, Chief Justice
William Rehnquist wrote that Miranda
warnings had "become embedded in
routine police practice to the point
where the warnings have become part
of our national culture".[116]

While arrests and interrogations can

legally occur without the Miranda
warning being given, this procedure
would generally make the arrestee's
pre-Miranda statements inadmissible
at trial. (However, pursuant to the
plurality opinion in United States v.
Patane, physical evidence obtained as
a result of pre-Miranda statements may
still be admitted. There was no majority
opinion of the Court in that case.)

In some jurisdictions, a detention

differs at law from an arrest, and police
are not required to give the Miranda
warning until the person is arrested for
a crime. In those situations, a person's
statements made to police are
generally admissible even though the
person was not advised of their rights.
Similarly, statements made while an
arrest is in progress before the Miranda
warning was given or completed are
also generally admissible.
Because Miranda applies only to
custodial interrogations, it does not
protect detainees from standard
booking questions such as name and
address. Because it is a protective
measure intended to safeguard the
Fifth Amendment right against self-
incrimination, it does not prevent the
police from taking blood without a
warrant from persons suspected of
driving under the influence of alcohol.
(Such evidence may be self-
incriminatory, but are not considered
statements of self-incrimination.)
If an inmate is in jail and invoked
Miranda on one case, it is unclear
whether this extends to any other
cases that they may be charged with
while in custody. For example: a
subject is arrested, charged with cattle
rustling, and is held in county jail
awaiting trial. He invoked his Miranda
rights on the cow case. While in
custody, he is involved in a fight where
a staff member loses his ability to
walk. He speaks to the custodial staff
regarding the fight without staff first
invoking Miranda. It is unclear if this
statement is admissible because of the
original Miranda statement.

Many police departments give special

training to interrogators with regard to
the Miranda warning; specifically, how
to influence a suspect's decision to
waive the right. For instance, the officer
may be required to specifically ask if
the rights are understood and if the
suspect wishes to talk. The officer is
allowed, before asking the suspect a
question, to speak at length about
evidence collected, witness
statements, etc. The officer will then
ask if the suspect wishes to talk, and
the suspect is then more likely to talk in
an attempt to refute the evidence
presented. Another tactic commonly
taught is never to ask a question; the
officer may simply sit the suspect
down in an interrogation room, sit
across from him and do paperwork,
and wait for the suspect to begin
talking.[117] These tactics are intended
to mitigate the restrictions placed on
law officers against compelling a
suspect to give evidence, and have
stood up in court as valid lawful tactics.
Nevertheless, such tactics are
condemned by legal rights groups as
deceptive.

Exemption for
interrogations conducted by
undercover agents

In Illinois v. Perkins, 496 U.S. 292

(1990), the United States Supreme
Court held that undercover officers do
not have to give suspects a Miranda
warning prior to asking questions that
may elicit incriminating responses. In
this case, an undercover agent posed
as an inmate and carried on a 35-
minute conversation with another
inmate that he suspected of
committing a murder that was being
investigated. During this conversation,
the suspect implicated himself in the
murder that the undercover agent was
investigating.[118]

The Supreme Court came to this

conclusion despite the government's
admission that a custodial
interrogation had been conducted by a
government agent.

Report of warnings being

given to detainees in
Afghanistan
Beginning in 2009, some detainees
captured in Afghanistan have been
read their Miranda rights by the FBI,
according to Congressman Michael
Rogers of Michigan, who claims to
have witnessed this himself. According
to the Justice Department, "There has
been no policy change nor blanket
instruction for FBI agents to Mirandize
detainees overseas. While there have
been specific cases in which FBI
agents have Mirandized suspects
overseas at both Bagram and in other
situations, in order to preserve the
quality of evidence obtained, there has
been no overall policy change with
respect to detainees."[119][120]

Equivalent rights in other

countries
Whether arising from their
constitutions, common law, or statute,
many nations recognize a defendant's
right to silence.[121] Those rights may
be considerably more limited than
those available to U.S. criminal
defendants under the Miranda
ruling.[122]
See also
Arrest
Civil rights
Criminal justice
Garrity Warning
Joe Jacquot
Kalkines Warning
Right to silence
Uniform Code of Military Justice
United States constitutional criminal
procedure

Notes
1. The 2004 United States Supreme
Court ruling Hiibel v. Sixth Judicial
District Court of Nevada upheld state
"stop-and-identify" laws, allowing police
in those jurisdictions engaging in a Terry
stop to require biographical information
such as name and address, without
arresting suspects or providing them
Miranda warnings.

References
1. Lief, Michael S.; Caldwell, H. Mitchell
(2006-08-29). The Devil's Advocates:
Greatest Closing Arguments in Criminal
Law . Simon and Schuster.
ISBN 9780743246682.
ISBN 9780743246682.
2. Berkemer v. McCarty, 468 U.S. 420
(1984)
3. "Mirandize" . The American Heritage
Dictionary of the English Language.
Houghton Mifflin Company. 2004.
Retrieved 2007-09-18.
4. California v. Prysock, 453 U.S. 355
(1981) .
5. "Typical reading of Miranda rights" .
The Cincinnati Enquirer. August 29,
2001.
6. Bravin, Jess (June 2, 2010). "Justices
Narrow Miranda Rule" . The Wall Street
Journal.
Journal.
7. Einesman, Floralynn (1999).
"Confessions and Culture: The
Interaction of Miranda and Diversity".
Journal of Criminal Law and
Criminology. 90 (1): 1–48 [p. 41].
JSTOR 1144162 . NCJ 182327 .
8. State and Federal courts have
consistently rejected challenges to
Miranda warnings on grounds that
defendant was not advised of additional
rights. See, e.g., United States v.
Coldwell, 954 F.2d 496(8th Cir. 1992)
For example, police are not required to
advise a suspect that if he decides to
answer questions without an attorney
answer questions without an attorney
present, he still has the right to stop
answering at any time until he talks to
an attorney. Note that the Miranda
warnings are not part of the arrest
procedure. There is no constitutional
requirement that the officer advise the
defendant of his Miranda rights when he
places the defendant under arrest.
9. California v. Prysock, 453 U.S. 355,
101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981);
Brown v. Crosby, 249 F. Supp. 2d 1285
(S.D. Fla. 2003).
10. Duckworth v. Eagan, 492 U.S. 195,
109 S. Ct. 2875, 106 L. Ed. 2d 166
(1989) While a "talismanic incantation"
(1989) While a "talismanic incantation"
of the exact language of the original
Miranda warnings is not required,
[Bloom and Brodin, Criminal Procedure,
5th ed. (Aspen 2006) 268] deviations
and omission can result in suppression
of the statement.
11. U.S. v. Labrada-Bustamante, 428
F.3d 1252 (9th Cir. 2005).
12. Gregory Declue, Oral Miranda
warnings: A checklist and a model
presentation , The Journal of Psychiatry
& Law (2007) at 421.
13. Duckworth v. Eagan, 492 U.S. 195
(1989) (upholding use of sentence by
Hammond, Indiana police).
Hammond, Indiana police).
14. "What Are Miranda Rights | Miranda
Ruling" . Livescience.com. April 22,
2013. Retrieved 2017-05-01.
15. Police and Law Enforcement –
Google Books . Books.google.com.au.
May 3, 2011. Retrieved 2014-07-09.
16. "When Stopped By Police You Must
Assert Your Rights Clearly or Risk
Waiving Them... - The Law Office Of
Vincent W Davis And Associates" .
vincentwdavis.com. November 7, 2013.
17. "Miranda warning Definition at
Lawyerment Online Dictionary of Legal
Terms" . Dictionary.lawyerment.com.
Terms" . Dictionary.lawyerment.com.
June 1, 2010. Retrieved 2017-05-01.
18. "What Are Your Miranda Rights" .
ExpertLaw. 2017-05-01. Retrieved
2017-05-01.
19. "Miranda Rights and Police
Questioning" . Thelaw.com. Retrieved
2017-05-01.
20.
http://www.una.edu/police/docs/forms
/miranda.pdf
21. Griffin v. California, 380 U.S. 609
(1965).
22. Wainwright v. Greenfield, 474 U.S.
284 (1986).
23. Jenkins v. Anderson, 447 U.S. 231
(1980).
24. Article 31 .
25. Vernon, McCay; Steinberg, Annie G.;
Montoya, Louise A. (1999). "Deaf
Murderers: Clinical and Forensic
Issues". Behavioural Sciences and the
Law. 17 (4): 495–516.
doi:10.1002/(SICI)1099-
0798(199910/12)17:4<495::AID-
BSL361>3.0.CO;2-6 .
26. The Miranda rule is not an element
of a valid arrest. The Fifth Amendment
does not require an officer to give an
arrestee his Miranda rights as part of
arrestee his Miranda rights as part of
the arrest procedure. The Miranda rights
are triggered by custody and
interrogation. At the time the Supreme
Court decided Miranda the Fifth
Amendment had already been applied to
the states in Malloy v. Hogan, 378 U.S. 1
(1964)
27. Note that post warning silence
cannot be used as evidence of guilt or
to impeach the defendant's trial
testimony. Doyle v. Ohio, 426 U.S. 610
(1976).
28. Pennsylvania v. Muniz, 496 U.S. 582
(1990)
29. Doe v. United States, 487 U.S. 201
29. Doe v. United States, 487 U.S. 201
(1988).
30. See also United States v. Wade, 388
U.S. 218 (1967).
31. See Adams and Blinka, Pretrial
Motions in Criminal Prosecutions, 2d ed.
(Lexis)331 n. 203 citing United States v.
Daughenbaugh, 49 F.3d 171, 173 (5th
Cir. 1995).
32. United States v. Mitchell, 556 F.2d
382 (6th Cir. 1977).
33. Pennsylvania v. Muniz, 496 U.S 582
(1990).
34. See Schmerber v. California, 384
U.S. 757, 761 n. 5 (1966).
U.S. 757, 761 n. 5 (1966).
35. Miranda v. Arizona, 384 U.S. 436
(1966)
36. Stansbury v. California, 114 S. Ct.
1526 (1994); New York v. Quarles, 467
U.S. 649, 655 (1984). Some courts
phrased the requirement as the
defendant did not believe that he was
"free to leave". This standard is
comparable to the detention standard
for purposes of the fourth amendment—
not the functional arrest standard for
purposes of the fifth amendment.
37. Adams & Blinka, Pretrial Motions in
Criminal Prosecutions, 2d ed. (LEXIS
1998) at 306.
1998) at 306.
38. In deciding whether a person is in
"constructive custody" the courts use a
totality of the circumstances test.
Factors frequently examined include
1. the location of the interrogation
2. the force used to stop or detain the
suspect
3. the number officer and police
vehicles involved
4. whether the officers were in
uniform
5. whether the officers were visibly
armed
6. the tone of officer's voice
 6. the tone of officer's voice
7. whether the suspect was told they
were free to leave
8. the length of the detention and/or
interrogation
9. whether the suspect was
confronted with incriminating
evidence and
10. whether the accused was the
focus of the investigation.
39. See Berkemer v. McCarty, 468 U.S.
420 (1984) (brief roadside investigatory
detention is not custody) and California
v. Beheler, 463 U.S. 1121 (1983) (per
curiam).
curiam).
40. Berkemer v. McCarty, 468 U.S. 420
(1984).
41. Miranda is not offense or
investigation-specific. Therefore, absent
a valid waiver, a person in custody
cannot be interrogated about the
offense they are held in custody for, or
any other offense.
42. Rhode Island v. Innis, 446 U.S. 291
(1980)
43. Imwinkelried and Blinka, Criminal
Evidentiary Foundations, 2d ed. (Lexis
2007) ISBN 1-4224-1741-7 at 620.
44. See Edwards v. Arizona, 451 U.S.
477 (1981).
45. See Adams and Blinka, Pretrial
Motions in Criminal Prosecutions, 2d ed.
(Lexis 1998)331 n. 204 citing United
States v. Smith, 3 F.3d. 1088 (7th Cir.
1993)
46. Escobedo v. Illinois, 378 U.S. 478
(1964); Illinois v. Perkins, 110 S. Ct.
2394 (1990). See also Latzer, State
Constitutions and Criminal Justice,
(Greenwood Press 1991), citing Walter
v. United States, 447 U.S. 649 (1980)
47. See Latzer, State Constitutions and
Criminal Justice, 97 n. 86 (Goodwood
Press 1991) quoting Kamisar, LaFave &
Press 1991) quoting Kamisar, LaFave &
Israel, Basic Criminal Procedure 598
(6th ed. 1986) "whatever may lurk in the
heart or mind of the fellow prisoner ..., if
it is not 'custodial police interrogation' in
the eye of the beholder, then it is not ...
interrogation within the meaning of
Miranda".
48. See Commonwealth v. Leone, 386
Mass. 329 (1982).
49. The Fifth Amendment applies only
to compelled statements used in
criminal proceedings
50. Other bases for exclusion include
that the confession was the product of
an unconstitutional arrest [See Brown v.
an unconstitutional arrest [See Brown v.
Illinois, 422 U.S. 590 (1975); Dunaway v.
New York, 442 U.S. 200 (1979)], the
confession was obtained in violation of
the defendant's sixth amendment right
to counsel or the confession was
involuntary under the due process
clause of the fifth and fourteenth
amendments.
51. Einesman, F: "Confessions and
Culture: The Interaction of Miranda and
Diversity", p. 9. Journal of Criminal Law
and Criminology, 1999.
52. Miranda v. Arizona, 384 U.S. at 475
53. United States v. Melanson, 691 F.2d
579 (1st Cir.), cert. denied, 454 U.S. 856
(1981).
54. 479 U.S. 157 (1987)
55. 479 U.S. at 166.
56. Bloom and Brodin, Criminal
Procedure 2nd ed. (Little Brown 1986)
250.
57. Moran v. Burbine, 475 U.S.
58. Davis v. United States, 512 U.S. 452
(1994)
59. Davis v. United States (1994)
60. "Once warnings have been given, the
subsequent procedure is clear. If the
individual indicates in any manner, at
any time prior to or during questioning,
that he wishes to remain silent, the
interrogation must cease. At this point,
he has shown that he intends to
exercise his Fifth Amendment privilege;
any statement taken after the person
invokes his privilege cannot be other
than the product of compulsion, subtle
or otherwise. Without the right to cut off
questioning, the setting of in-custody."
Michigan v. Moseley, 423 U.S. 96 (1975)
quoting Miranda v. Arizona, 384 U. S.
436 (1966) at 384 U.S. 473–74. Note
the defendant's assertion of their fifth
amendment right to silence cannot be
used as substantive evidence of guilt or
used as substantive evidence of guilt or
to impeach the defendant's testimony.
Doyle v. Ohio
61. A request to speak to a third person
who is not an attorney does not invoke
right to counsel. Fare v. Michael C., 442
U.S. 707 (1979)
62. The Supreme Court has agreed to
hear Maryland v. Shatzer to determine
how long the protections afforded by
the Edwards rule last. Tackling Edwards
v. Arizona One More Time
63. The statement of the defendant is
admissible when offered by the state as
substantive evidence of guilt as an
admission of a party opponent. This
exception or exemption from the
hearsay rules is not available to the
defendant—the defendant must resort
to some other exception if he attempts
to offer his own statement into
evidence. Further if the defendant is
successful in offering his own
statement as substantive evidence, then
the defendant is the hearsay declarant
and the state can impeach the
defendant as it would any other witness
including the use of potentially
devastating evidence of prior
convictions.
64. See Pennsylvania v. Muniz, 496 U.S.
582 (1990)
65. New York v. Quarles, 467 U.S. 649
(1984)
66. See Illinois v. Perkins, 496 U.S. 292
(1990)
67. Stigall, Dan E. (2009).
Counterterrorism and the Comparative
Law of Investigative Detention. Amherst,
NY: Cambria. ISBN 978-1-60497-618-2.
68. New York v. Quarles, 467 U.S. 649
(1984).
69. Benoit, Carl A. "The 'Public Safety'
Exception to Miranda" Archived April
20, 2013, at the Wayback Machine., FBI
20, 2013, at the Wayback Machine., FBI
law enforcement bulletin, February
2011. Retrieved April 19, 2013.
70. savage, Charlie (March 24, 2011).
"Delayed Miranda Warning Ordered for
Terror Suspects" . The New York Times.
71. https://cdn0.vox-
cdn.com/uploads/chorus_asset/file/29
02472/tsarnaev1.0.pdf
72. Lopez, German (May 15, 2015). "The
Dzhokhar Tsarnaev Boston Marathon
bombing trial, explained" .
73.
https://www.gpo.gov/fdsys/pkg/USCOU
RTS-mad-1_13-cr-
RTS-mad-1_13-cr-
10200/pdf/USCOURTS-mad-1_13-cr-
10200-6.pdf
74. "People v Doll, NY Slip. Op. 06726
(2013)" . NYCourts.gov. New York State
Unified Court System. Retrieved
7 September 2017.
75. Kamins, Barry; Murray, Warren J. (16
December 2015). LexisNexis
AnswerGuide New York Criminal
Procedure . LexisNexis.
ISBN 1632845563. Retrieved
7 September 2017.
76. United States v. Massiah, 377 U.S.
201 (1964).
77. New York v. Quarles, 467 U.S. 649,
77. New York v. Quarles, 467 U.S. 649,
655 (1984).
78. A common misconception is that a
violation of a defendant's constitutional
rights warrants dismissal of the
charges. Generally, a violation of a
defendant's constitutional rights will not
result in dismissal of the charges unless
the defendant can show that the
violation was especially egregious.
79. The statement must be "voluntary"
under the due process clauses of the
Fifth and Fourteenth Amendments. An
involuntary statement cannot be used
for any purpose.
80. Note that if the seizure of the
defendant violated the fourth
amendment any confession that
resulted from the seizure would be
subject to suppression. For example, an
officer stops a defendant because the
officer has a "gut feeling" that the
defendant is driving while impaired.
After the stop the officer asks the
defendant if he had been drinking and
the defendant says: "Yes". The officer
then arrests the defendant and takes
him to the law enforcement center to
administer a breathalyzer test. While in
the breathalyzer room the officer asks
the defendant the questions on his
the defendant the questions on his
alcohol influence report. The
defendant's responses are
incriminating. Under this scenario
because the initial stop was
unconstitutional all evidence that
resulted from the stop would be subject
to suppression.
81. Evidence includes physical evidence,
confessions and identification evidence.
Derivative evidence may also be
excluded. See Federal Rules of Criminal
Procedure 12(b), 41(e) and 41(f)
respectively.
82. Most motions to suppress are
based on violations of Fourth, Fifth, and
Sixth Amendments and the due process
clauses of the Fifth and Fourteenth
Amendments.
83. NC Defender Manual, Suppression
Motions (NC School of Government
2002)
84. Fed. R. Crim. P. 12 allows motions
to be made orally or in writing in the
court's discretion. But many courts have
local rules of practice requiring written
motions.
85. Adams & Blinka, Pretrial Motions in
Criminal Prosecutions, 2ed. (Lexis 1998)
at 5.
at 5.
86. Adams & Blinka, Pretrial Motions in
Criminal Prosecutions, 2nd ed. (Lexis
1998) at 7. citing United States v.
Maldonado, 42 F.3rd 906 (5th Cir. 1995)
The defendant should state with some
specificity the legal grounds on which
he challenges the admissibility of the
evidence and should assert all available
grounds. Failure to assert a ground may
be treated as waiver. The defendant
must also assert facts that show that a
substantial claim exists. The assertion
must be specific, detailed, definite and
nonconjectural. Adams & Blinka, Pretrial
Motions in Criminal Prosecutions, 2nd
Motions in Criminal Prosecutions, 2nd
ed. (Lexis 1998) at 7. citing United
States v. Calderon, 77 F.3rd 6, 9 (1st Cir.
1996) Conclusory statements such as
the defendant was "coerced" or "under
duress" carry little weight.
87. North Carolina requires that the
affidavit be based on first hand
knowledge or on information and belief.
If information and belief, the affiant
must state the source of his information
and the reason for his belief that it is
true. Attorney are reluctant for the
defendant be the affiant. Although
statements from the defendant in
support of a motion to suppress cannot
support of a motion to suppress cannot
be used as substantive evidence of
guilt, the statements can be used to
impeach the defendant's testimony.
88. See Fed Rules of Evidence 104(a) &
(b)
89. United States v. Gouveia, 467 U.S.
180, 187–88, 104 S.Ct. 2292, 2297, 81
L.Ed.2d 146 (1984). "In a line of
constitutional cases in this Court
stemming back to the Court's landmark
opinion in Powell v. Alabama, 287 U.S.
45, it has been firmly established that a
person's Sixth and Fourteenth
Amendment right to counsel attaches
only at or after the time that adversary
only at or after the time that adversary
judicial proceedings have been initiated
against him. See Powell v. Alabama,
supra; Johnson v. Zerbst, 304 U.S. 458;
Hamilton v. Alabama, 368 U.S. 52;
Gideon v. Wainwright, 372 U.S. 335;
White v. Maryland, 373 U.S. 59; Massiah
v. United States, 377 U.S. 201; United
States v. Wade, 388 U.S. 218; Gilbert v.
California, 388 U.S. 263; Coleman v.
Alabama, 399 U.S. 1." "... [W]hile
members of the Court have differed as
to the existence of the right to counsel
in the contexts of some of the above
cases, all of those cases have involved
points of time at or after the initiation of
points of time at or after the initiation of
adversary judicial criminal proceedings
—whether by way of formal charge,
preliminary hearing, indictment,
information, or arraignment."
90. Michigan v. Jackson, 475 U.S. 625,
632 (1986); see also Brewer v. Williams,
430 U.S. 387, 398 (1977). In Maine v.
Moulton the court stated "By its very
terms, it becomes applicable only when
the government's role shifts from
investigation to accusation. For it is only
then that the assistance of one versed
in the intricacies ... of law," ibid., is
needed to assure that the prosecution's
case encounters "the crucible of
case encounters "the crucible of
meaningful adversarial testing". The
Sixth Amendment right to counsel does
not attach until such time as the
"government has committed itself to
prosecute, and ... the adverse positions
of government and defendant have
solidified ...'" Kirby v. Illinois, 406 U. S.
689 (1972).
91. United States v. Wade, 388 U.S. 218,
226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d
1149 (1967); see also, United States v.
Hidalgo, 7 F.3d 1566 (11th Cir. 1993).
Under the critical stage analysis,
virtually every phase of the criminal trial
is a critical stage. Additionally courts
is a critical stage. Additionally courts
have generally held that pretrial
hearings regarding conditions of pretrial
release and suppression of evidence are
considered critical stages. Smith v.
Lockhart, 923 F.2d 1314 (8th Cir. 1991)
on the other hand courts have generally
held that certain pre-trial post
accusation investigative procedures are
not critical stages. Analysis of
fingerprints, blood samples, clothing,
hair, handwriting, and voice samples
have all been ruled to be noncritical
stages. FBI Law Enforcement Bulletin,
(2001)
92. Brewer v. Williams, 97 S. Ct. 1232
(1977) "That the incriminating
statements were elicited surreptitiously
in the Massiah case, and otherwise
here, is constitutionally irrelevant. See
ibid.; McLeod v. Ohio, 381 U. S. 356;
United States v. Crisp, 435 F.2d 354, 358
(CA7)"
93. Illinois v. Perkins, 496 U.S. 292
(1990).
94. Massiah does not prohibit the
government's use of a cellmate as a
"silent listening post"—a person who is
simply placed in a position to hear any
incriminating statements the defendant
might make about the charged offense
might make about the charged offense
but who does not do anything to coax or
induce the defendant to talk about the
charged crime. Kuhlmann v. Wilson, 477
U.S. 436 (1986).
95. McNeil v. Wisconsin, 111 S. Ct. 2204
(1991). Lower federal courts has
extended the Sixth Amendment right to
counsel to factually related offenses. In
Texas v. Cobb, the Supreme Court made
clear that the right to counsel applied
only to the crime charged and did not
apply to attempts to gather information
about "other offenses 'closely related
factually' to the charged offense". Texas
v. Cobb, 121 S. Ct. 1335 (2001).
v. Cobb, 121 S. Ct. 1335 (2001).
96. Texas v. Cobb, 121 S. Ct. 1335
(2001).
97. Brewer v. Williams, 430 U.S. 387
(1977)
98. Mathis v. United States, 391 U.S. 1
(1968)
99. See McNeil v. Wisconsin, 501 U.S.
171 (1991)
100. Under Michigan v. Jackson, a
defendant's request for counsel at a
preliminary hearing constituted an
assertion of his sixth amendment right
to counsel. However, Michigan v.
Jackson was overruled by Montejo v.
Louisiana .
101. Fellers v. United States, 124 S.Ct.
1019 (2004)
102. 474 U.S. 159 (1989)
103. The due process clauses of the
Fifth and Fourteenth Amendments
provide another basis for challenging
the admissibility of confessions. The
test is whether the statement was
"voluntary". A statement is not voluntary
if it was the product of police
misconduct. That is a due process
claim requires that the defendant
establish that there was police
misconduct and that this misconduct
misconduct and that this misconduct
induced the confession. The
"voluntariness" test is implicated in any
police interrogation—neither Miranda
"custody" or Massiah "commencement
of formal criminal proceedings" is a
necessary conditions (state action is
required). Further, there are no issues of
waiver or assertion. Finally the remedy
is complete—an involuntary statement
cannot be used for any purpose.
104. Originally Miranda was regarded as
a "prophylactic" rule—the rule itself was
not a constitutional right but a "
judicially–created enforcement
mechanism" devised to protect the
mechanism" devised to protect the
underlying constitutional rights. In
Dickerson v. United States, the Court
"constitutionalized" the Miranda rule—
although the decision did not perforce
change the rule concerning the use of a
Miranda-defective statement for
impeachment purposes.
105. Colorado v. Connelly, 479 U.S. 157
(1986)
106. See Mincey v. Arizona, 437 U.S.
385 (1978); Greenwald v. Wisconsin,
390 U. S. 519, 390 U.S. 521 (1968)
("Considering the totality of these
circumstances, we do not think it
credible that petitioner's statements
credible that petitioner's statements
were the product of his free and rational
choice"); Reck v. Pate, 367 U.S. 433, 367
U.S. 440 (1961) ("If [a defendant's will
was overborne], the confession cannot
be deemed 'the product of a rational
intellect and a free will'")
107. See e.g., Culombe v. Connecticut,
367 U.S. 568, 367 U.S. 583 (1961) ("[A]n
extrajudicial confession, if it was to be
offered in evidence against a man, must
be the product of his own free choice")
108. Bloom & Brodin, Criminal
Procedure (Aspen 1996) at 247.
109. Bloom & Brodin, Criminal
Procedure (Aspen 1996)
Procedure (Aspen 1996)
110. Latzer, State Constitutions and
Criminal Justice (Greenwood 1991)
111. Id. at 2. This similarity is hardly
surprising since the federal constitution
and many state constitutions had
common sources the state
constitutions of some of the more
important states such as Virginia.
112. Id. at 89–91.
113. In Harris the United States
Supreme Court allowed a Miranda-
defective statement to be used to
impeach the trial testimony of a
defendant. Note the Harris rule does not
defendant. Note the Harris rule does not
permit the use of a statement that fails
to meet the voluntariness standards of
the due process clause to be used for
any purpose. The basis for the
distinction is that a Miranda-defective
statement does not raise the questions
of unreliability as does an involuntary
statement.
114. In Moran v. Burbine, 475 U.S. 412
(1986) the Court held that officers are
not required to tell a suspect in custody
that third parties had retained an
attorney for the suspect. The failure of
the police to inform the suspect of this
fact did not render the waiver
fact did not render the waiver
involuntary. Burbine decision was not
well-received by the state courts. Six
states specifically rejected the Burbine
rule.
115. id. at 91–98. The specific holding
in Fare was that a juvenile's request to
have his probation officer present
during an interrogation was not an
invocation of the juvenile's right to
counsel. The Supreme Court stated that
juveniles were essentially to be treated
the same as adults for the purposes of
Miranda. Many states adopted special
rules concerning police interrogation of
juveniles not true
juveniles not true
116. Dickerson v. United States 530 U.S.
428 (2000).
117. Prof. James Duane and Officer
George Bruch – Fifth Amendment
Lecture at Regent University .
118. "Supreme.justia.com" .
Supreme.justia.com. Retrieved
2014-07-09.
119. "U.S. Lawmaker Says Obama
Administration Ordered FBI to Read
Rights to Detainees" . FOXNews.com.
June 11, 2009. Archived from the
original on August 22, 2009. Retrieved
2010-05-08.
120. "Miranda Rights for Terrorists" .
120. "Miranda Rights for Terrorists" .
The Weekly Standard. June 10, 2009.
Retrieved 2010-05-08.
121. Gray, Anthony (Fall 2013). "The
Right to Silence: Using American and
European Law to Protect a Fundamental
Right" (PDF). New Criminal Law Review.
16 (4): 527–567. Retrieved 27 July
2017.
122. "Miranda Warning Equivalents
Abroad" . Library of Congress. Retrieved
27 July 2017.

Further reading
Coldrey, J. (1990). "The Right to
Silence Reassessed". 74 Victorian
Bar News 25.
Coldrey, J. (1991). "The Right to
Silence: Should it be curtailed or
abolished?", 20 Anglo-American Law
Review 51.
"Rehnquist's legacy" The Economist.
July 2–8, 2005. p. 28.
Stevenson, N. (1982). "Criminal
Cases in the NSW District Court: A
Pilot Study". In J. Basten, M.
Richardson, C. Ronalds and G.
Zdenkowski (eds.), The Criminal
Injustice System. Sydney: Australian
 Legal Workers Group (NSW) and
Legal Service Bulletin.
"The Miranda Warning". The U.S.
Constitution Online. N.p., n.d. Web.
November 4, 2012.
<http://www.usconstitution.net/mira
nda.html >.

External links
Don't Talk to the Police — Lecture by
Professor James Duane of the
Regent University School of Law and
Officer George Bruch from the
Virginia Beach police department.
Miranda Rights and Illegal
 Immigrants on Real Law Radio —
Host Bob DiCello discusses the
Miranda rights of illegal immigrants
in Arizona with author, Gary L. Stuart
on the legal news talk radio program,
Real Law Radio (Saturday, May 8,
2010).
Shahzad and Miranda Rights Prof.
Orin Kerr

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