Miranda v. Arizona

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(1966) U.S. Supreme Court decision that specified a code of conduct for police during interrogations of criminal suspects. Miranda established that the police are required to inform arrested persons that they have the right to remain silent, that anything they say may be used against them, and that they have the right to an attorney. The case involved a claim by the plaintiff that the state of Arizona, by obtaining a confession from him without having informed him of his right to have a lawyer present, had violated his rights under the Fifth Amendment regarding self-incrimination. The 5-to-4 decision shocked the law-enforcement community; several later decisions limited the scope of the Miranda safeguards. See also rights of the accused.

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384 U.S. 436 (1966), argued 28 Feb. 1966, decided 13 June 1966 by vote of 5 to 4; Warren for the Court, Clark, Harlan, White, and Stewart in dissent. The Warren Court's revolution in American criminal procedure reached its high point (or, depending on one's perspective, its low point) on 13 June 1966. That day the Court handed down its opinion in Miranda, the most famous, and most bitterly criticized, confession case in the nation's history. To some, Miranda symbolized the legal system's determination to treat even the lowliest and most despicable criminal suspect with dignity and respect. But to others, especially those who attributed rising crime rates to the softness of judges, the case became a target of abuse.

Background

Prior to the decision in Miranda, the admissibility of a confession in a state criminal case was governed by the due process “voluntariness” or “totality of the circumstances” test. Under this approach, the courts decided on a case‐by‐case basis whether the will of the person who confessed had been “broken” or “over‐borne” or whether the confession had been voluntary. But it soon became clear that these terms were not being used as tools of analysis, but as mere conclusions. When a court concluded that the “totality” of a suspect's treatment had not been too bad (e.g., although the police had exerted considerable pressure and used some trickery, they had given the suspect a sandwich and permitted him to have a normal night's sleep), it called the resulting confession “voluntary.” On the other hand, when a court concluded that police methods were too offensive or too heavy‐handed (in consideration of such factors as the suspect's youth, poor education, or low intelligence), it labeled the resulting confession “involuntary” or “coerced” (see Coerced Confessions).

The vagueness and unpredictability of the voluntariness test, its application (or manipulation) by lower courts so as to validate confessions of doubtful constitutionality, and the inability of the Supreme Court, because of its heavy workload, to review more than one or two state confession cases a year, led a growing number of the justices to search for a more meaningful and more manageable alternative approach. Miranda was the culmination of these efforts.

Facts of the Case

Ernesto Miranda, an indigent twenty‐three‐year‐old who had not completed the ninth grade, was arrested at his home and taken directly to a Phoenix, Arizona, police station. There, after being identified by the victim of a rape‐kidnapping, he was taken to an “interrogation room,” where he was questioned about the crimes. At first, Miranda maintained his innocence, but after two hours of questioning, the police emerged from the room with a signed written confession of guilt. At his trial, the written confession was admitted into evidence and Miranda was found guilty of kidnapping and rape.

Whether Miranda had been told that anything he said could be used against him was unclear. But the police admitted—and this was to prove fatal for the prosecution—that neither before nor during the questioning had Miranda been advised of his right to consult with an attorney before answering any questions or his right to have an attorney present during the interrogation (see Counsel, Right to).

Miranda's confession plainly would have been admissible under the voluntariness test. His questioning had been quite mild compared to the objectionable police methods that had rendered a resulting confession involuntary or coerced in previous cases. But the confession was obtained from Miranda under circumstances that did not satisfy the new constitutional standards the Court was to promulgate in this very case.

A remarkable feature of the American history of confessions law is that until the mid‐1960s the privilege against self‐incrimination (the Fifth Amendment provision that no person “shall be compelled … to be a witness against himself”) did not apply to the proceedings in the interrogation room or to in‐custody police interrogation.

One reason for this situation was that the privilege was not deemed applicable to the states until 1964 and by that time a large body of law pertaining to involuntary or coerced state confessions had developed (see Incorporation Doctrine). Moreover, and more important, the prevailing pre‐Miranda view was that “compelling” someone to testify against him‐ or herself meant legal compulsion. Since a suspect was threatened neither with perjury for testifying falsely nor contempt for refusing to testify at all, it could not be said, ran the argument, that a person undergoing police interrogation was being “compelled” to be “a witness against himself” within the meaning of the privilege—even though under such circumstances a person is likely to assume or to be led by the police to believe that there are legal (or extralegal) sanctions for “refusing to cooperate.” Since the police had no lawful authority to make a suspect answer their questions (although, prior to Miranda, the police did not have to tell a person that), there was no legal obligation to answer to which a privilege in the technical sense could apply.

Although this reasoning seems quite strained, it prevailed as long as it did probably because of a widely held view that questioning a suspect without advising him of his rights was “indispensable” to law‐enforcement work. Moreover, the invisibility of police interrogation made it easy for society to be complacent about what really took place in the interrogation room.

On the eve of Miranda, however, there was reason to think that the self‐incrimination clause would finally apply to the police station. In Malloy v. Hogan (1964), which did not involve a confession, the Court not only held the privilege against self‐incrimination fully applicable to the states, but also stated by way of dictum (see Obiter Dictum) that the admissibility of a confession in a state or federal court should be controlled by the Fifth Amendment privilege. The confession rules and the privilege had become intertwined in Malloy—and they would be fused in Miranda.

Decision

There are three parts to the Miranda decision:

First, the Fiffh Amendment privilege is available outside of court proceedings and other formal proceedings and serves to protect persons in all settings from being compelled to incriminate themselves. Thus, the privilege applies to informal compulsion exerted by law‐enforcement officers during “custodial interrogation,” that is, questioning initiated by the police after a person has been taken into custody.

Second, “[A]n individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described in the [standard police interrogation manuals] cannot be otherwise than under compulsion to speak” (p. 461). Because the custodial interrogation environment “carries its own badge of intimidation” that is “at odds” with the privilege, “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings,” no statement obtained from a person under these circumstances is admissible (pp. 457–458).

Third, the Constitution does not require adherence to any particular system for dispelling the coercion of custodial interrogation. However, unless the government utilizes other procedures that are at least as effective, in order for a statement to be admissible, a suspect must be given the now familiar four‐fold Miranda warning (set forth below) before being subjected to custodial interrogation and must effectively waive his or her rights before any questioning.

According to Miranda, advising a suspect that he has a right to remain silent and that anything he says can be used against him is not sufficient to assure that the suspect's right to choose between silence and speech will remain unfettered throughout the interrogation process. Therefore, a suspect must also be told of her right to counsel, either retained or (if she is indigent) appointed.

Although the warnings need not be given in the exact form described in the Miranda opinion—indeed, they are not described exactly the same way throughout the opinion—the substance of each of the following four warnings must be effectively given: (1) You have the right to remain silent; (2) anything you say can and will be used against you; (3) you have the right to talk to a lawyer before being questioned and to have him or her present when you are being questioned; and (4) if you cannot afford a lawyer, one will be provided for you before any questioning if you so desire.

Miranda has been widely criticized as a case that tilted the balance heavily in favor of criminal suspects. However, as the Court noted in Moran v. Burbine (1986), the decision “embodies a carefully crafted balance designed to fully protect both the defendant's and society's interests” (p. 433, n. 4).

Miranda does not require that a person taken into custody first consult with a lawyer or actually have a lawyer present in order for his or her waiver of constitutional rights to be valid. The decision's weakness (or saving grace, depending on one's viewpoint) is that it permits those subjected to the inherent pressures of police custody to “waive” their rights without actually obtaining the guidance of counsel. That waiver, at least in theory, must be “knowing” and “voluntary.”

Miranda allows the police to conduct “general‐on‐the‐scene questioning” without providing the warnings. It also allows the police to interview a suspect in his home or office without advising him of his rights, provided the questioning takes place in a context that does not restrict the person's freedom to terminate the meeting.

Moreover, Miranda leaves the police free to hear and act on “volunteered” statements even though the “volunteer” has been taken into custody and neither knows nor is informed of his or her rights. “Custody” alone does not call for the Miranda warnings. It is the impact on the suspect of the interplay between police interrogation and police custody that makes “custodial police interrogation” so corrosive and calls for “adequate protective devices” (Illinois v. Perkins, 1990).

Even when warnings and the waiver of rights are required, Miranda permits the police to give the warnings and to obtain waivers without the presence of any disinterested observer and without any tape recording of the proceedings. (This is so even when a tape recording is readily available.)

Whether the promptings of conscience or the desire to get the matter over with usually override the impact of the warnings, or whether the police too often mumble or undermine the warnings, almost all empirical studies indicate that in the quarter century since Miranda was decided, custodial suspects have continued to make incriminating statements with great frequency. This might not have been the case if a tape recording of police warnings and the suspect's response were required whenever feasible. There is little doubt that it would not have been the case if Miranda had required that a suspect first consult with a lawyer or actually have a lawyer present in order for his or her waiver of rights to be effective.

Concerns about Miranda's Future

For supporters of Miranda, an ominous note was struck in Michigan v. Tucker (1974), in which the Court, speaking through Justice William *Rehnquist, viewed the Miranda warnings as “not themselves rights protected by the Constitution,” but only “prophylactic standards” designed to “safeguard” or to “provide practical reinforcement” for the privilege against self‐incrimination (p. 444). A decade later, first in New York v. Quarles (1984), recognizing a “public safety” exception to Miranda, and then in Oregon v. Elstad (1985), indicating that the prosecution may make considerable derivative use of Miranda violations, the Court reiterated Tucker’s way of looking at, and thinking about, Miranda. Both Quarles and Elstad underscored the distinction between statements that are actually “coerced” or “compelled” and those obtained merely in violation of Miranda’s “prophylactic rules.”

Since the Supreme Court has no supervisory power over state criminal justice and if Miranda violations are not constitutional violations, where did the Warren Court get the authority to impose the new confession doctrine on the states? If a confession obtained in violation of Miranda does not violate the self‐incrimination clause unless “actually coerced,” why are the states not free to admit all confessions not the product of actual coercion? Tucker and its progeny thus may have prepared the way for the eventual overruling of Miranda.

Nevertheless, it would be surprising if the Court did overrule Miranda. The Court is well aware of Miranda’s rather limited scope—indeed, a number of commentators have forcefully argued that it does not go far enough. The Court is also cognizant of the many studies indicating that the decision has had no significant adverse impact on law enforcement. Despite their initial reaction of dismay, the police seem to have adjusted to Miranda fairly well. Under these circumstances, the Court is probably willing to “live with” a case that has become part of the American culture, especially if it continues to view the decision as a serious effort to strike a proper balance between the need for police questioning and the need to protect a suspect against impermissible police pressure.

The Reaffirmation of Miranda

In Dickerson v. United States (2000), the Court struck down a federal statute purporting to abolish Miranda and to reinstate the pre‐Miranda “voluntariness” or “totality of the circumstances” test for the admissibility of confessions in federal cases. Speaking for a 7‐to‐2 majority, Chief Justice Rehnquist removed any doubt that “Miranda is a constitutional decision” and thus a decision that “may not be in effect overrruled by an Act of Congress” (p. 432).

Nor did the Court see any good reason to overrule Miranda on its own: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our natural culture. [While] we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision. If anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief” (pp. 443–444).

What may be said about the cases that had encouraged critics of the Warren Court to believe that some day the Court would overrule Miranda, cases such Tucker, Quarles, and Estad? Oddly, although these cases seemed to be based on the premise that Miranda was not a constitutional decision, the Dickerson Court had nothing negative to say about them. The reason may be that the exceptions to Miranda carved out by these cases are going to remain in place.

A conference on the meaning of Dickerson manifested a strong consensus among the eleven criminal procedure experts who contributed articles to the symposium that the majority opinion in Dickerson was a compromise opinion designed to obtain the largest majority possible on the narrow question of Miranda’s continued vitality. There also seemed to be a consensus that what Dickerson reaffirmed was not the Miranda doctrine that burst on the scene in 1966, but Miranda with all the limitations and exceptions it had acquired since 1966 “frozen in time.”

Bibliography

• Liva Baker, Miranda: Crime, Law and Politics (1983).
• Gerald Caplan, Questioning Miranda, Vanderbilt Law Review 38 (November 1985): 1417–1476.
• Yale Kamisar, Police Interrogation and Confessions (1980).
• Stephen Schulhofer, Reconsidering Miranda, University of Chicago Law Review 54 (Spring 1987): 435–461

— Yale Kamisar

• 384 U.S. 436 (1966)
• Vote: 5–4
• For the Court: Warren
• Dissenting: Clark, Harlan, White, and Stewart

In 1963 Ernesto Miranda was arrested for kidnapping and attacking a young woman near Phoenix. The woman identified him at the police station and the police questioned him for two hours. No one told him that he had the right to refuse to answer questions or to see a lawyer. Miranda confessed. He was tried and convicted on the basis of his confession.

Miranda appealed his conviction to the U.S. Supreme Court. His lawyer claimed the police violated Miranda's 5th Amendment protection against self-incrimination. The 5th Amendment says, “No person … shall be compelled in any criminal case to be a witness against himself.”

Arizona's lawyers argued that Miranda could have asked for a lawyer at any time during questioning. He had not done so. They also said no one had forced him to confess. Because he had given his confession voluntarily, the prosecution could use it in court.

The Issue

Does the 5th Amendment require the police to inform suspects of their right to remain silent and that anything they say can be held against them? Could the police use evidence obtained without such warnings in court?

Opinion of the Court

The Court struck down Miranda's conviction, ruling that the 5th Amendment requires police to inform suspects in their custody that they have the right to remain silent, that anything they say can be held against them, and that they have a right to consult a lawyer. The police must give these warnings, the Court said, before any questioning of a suspect can take place. A defendant can then voluntarily waive these rights.

The Court added that if a suspect wants to remain silent or to contact a lawyer, police interrogation must stop until the suspect is ready to talk again or a lawyer is present. The prosecution cannot use any confessions obtained in violation of this rule in court.

Chief Justice Earl Warren argued that the U.S. system of justice is based on the idea that an individual is innocent until proved guilty. The government, he claimed, must produce evidence against an accused person. It cannot resort to forcing suspects to prove themselves guilty.

Dissent

In a strong dissent, Justice John Harlan argued: “It's obviously going to mean the disappearance of confessions as a legitimate tool of law enforcement.” He concluded, “[T]he thrust of the new rule is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all.”

Significance

The Miranda decision was controversial. Many law enforcement officials complained the decision “handcuffed the police.” However, in 1986, in Moran v. Burbine, the Court referred to the Miranda case as a decision that “embodies a carefully crafted balance designed to fully protect both the defendant's and society's interests.”

Ever since the Miranda decision, police have carried cards that they use to read suspects their rights. This message has become known as the Miranda warnings, which consist of four points: the right to remain silent, the reminder that anything said by the suspect can be used against him, the right to a lawyer, and the reminder that a lawyer will be provided free if the suspect cannot afford to hire one.

The Court reaffirmed, by a 7-to-2 vote, the Miranda rights of suspects in Dickerson v. United States (2000). At issue was a 1968 federal law that held it was not always necessary to read Miranda warnings to suspects before they confessed voluntarily to crimes. In striking down this statute, Chief Justice William Rehnquist, in his opinion for the Court, said, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” The police must continue to give the Miranda warnings or risk having a suspect's confession excluded as evidence against him.

See also Counsel, right to; Rights of the accused

Sources

• Liva Baker, Miranda: Crime, Law and Politics (New York: Atheneum, 1983)

Miranda v. Arizona, 384 U.S. 436 (1966). One of the core concerns of the Fifth Amendment's guarantee against self-incrimination is the use of coerced confessions. In Miranda v. Arizona, the Supreme Court codified this concern by prescribing rules for police interrogation. Specifically, any person who is in custody must be warned, before questioning begins, that: "he has the right to remain silent," "anything he says can be used against him in a court of law," "he has the right to an attorney," and he may consult with his attorney at any time. Only if the individual "knowingly and intelligently" waives these rights—a waiver that may be with drawn at any stage of questioning—may his statements be used against him.

The 5–4 Miranda ruling has always been controversial. Critics contend that these rules hamstring law enforcement, despite Ernesto Miranda's conviction at a retrial where his confession was excluded. The Court created numerous exceptions to the Miranda rules, and Congress attempted to overturn them in a rarely used provision of the 1968 Crime Control Act. The Supreme Court struck down that provision in United States v. Dickerson (2000), saying that the Miranda rules "have become part of our national culture."

Bibliography

Brooks, Peter. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago: University of Chicago Press, 2000.

Leo, Richard A., and George C. Thomas III, eds. The Miranda Debate: Law, Justice, and Policing. Boston: Northeastern University Press, 1998.

White, Welsh S. Miranda's Waning Protections: Police Interrogation Practices after Dickerson. Ann Arbor: University of Michigan Press, 2001.

Click here to see full case study.

Miranda v. Arizona was a landmark decision, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), in the field of criminal procedure. In Miranda, the U.S. Supreme Court declared a set of specific rights for criminal defendants. The Miranda warning, named after Ernesto Miranda, one of the petitioners in the case, is a list of rights that a law enforcement officer must read to anyone arrested for a criminal act.

Before the High Court's decision in Miranda, the law governing custodial interrogation of criminal suspects varied from state to state. In many states statements made by criminal defendants who were in custody and under interrogation by law enforcement officials were admissible at trial, even though the defendants had not been advised of their legal rights. If the totality of the circumstances surrounding the statements indicated that the suspect made the statements voluntarily, it did not matter that officers had not apprised the suspect of his legal rights.

The totality of the circumstances rule was effective even if a defendant was in custody. Generally a defendant was considered in custody if she was not free to leave the presence of law enforcement officers. The basic legal rights for criminal defendants subjected to custodial interrogation included the Fifth Amendment right against self-incrimination and the right to an attorney, this latter right established by the Court two years earlier in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964).

The Miranda case involved four criminal defendants. Each of the defendants was appealing a conviction based in part on the failure of law enforcement officers to advise him, prior to custodial interrogation, of his right to an attorney or his right to remain silent.

Ernesto Miranda, the first defendant listed in the case, was arrested on March 18, 1963, at his home in Arizona and taken to a Phoenix police station. At the station witnesses identified Miranda as a rapist. Police then brought Miranda to an interrogation room where he was questioned by two police officers.

The officers did not tell Miranda that he had a right to an attorney, and Miranda confessed to the crime in two hours. Miranda wrote a confession on a piece of paper and signed the paper. At the top of the paper was a typed statement saying that Miranda had made the confession voluntarily and with full knowledge of his legal rights. Miranda was convicted of rape and kidnapping in an Arizona state court. The circumstances involving the other three defendants were similar, all three confessing after a period of custodial interrogation without the assistance of legal counsel.

The U.S. Supreme Court agreed to hear appeals from all four defendants, joining the appeals into a single review. A divided Court affirmed the California Supreme Court's decision against one of the defendants and reversed the guilty verdicts against Miranda and the other two.

The majority opinion, written by Chief Justice Earl Warren, began with a review of police interrogation activities and a detailed formulation of new rules for law enforcement personnel.

The opening of the Miranda majority opinion set a grave tone:

The cases before us raise questions which go to the roots of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

The Court described in detail the unfairness and coercion used by some law enforcement officers engaged in interrogation. The majority also took note of deceptive practices in interrogation. For example, officers would put a suspect in a lineup and tell her that she had been identified as a suspect in the instant crime as well as other crimes even though no such identifications had taken place. The suspect would confess to the instant crime to avoid being prosecuted for the fictitious crimes. The majority noted that these examples were exceptions, but it also stated that they were sufficiently widespread to warrant concern.

The Court then outlined the now-familiar procedures that law enforcement officers would have to follow thereafter. They would have to tell persons in custody that they have the right to remain silent, that they have the right to an attorney, that if they cannot afford an attorney the court will appoint an attorney, and that anything they say can be used in a criminal prosecution.

Ultimately, the Court held that statements made by a criminal suspect in custody would not be admissible at trial unless the suspect had made a knowing and intelligent waiver of his legal rights after being apprised of the various legal rights and after being given an opportunity to exercise those rights. The majority assured the law enforcement community that it did not intend to hamper criminal investigations and prosecutions. The Court pointed out that interrogations were still a perfectly legitimate investigative tool, that questioning a suspect without advising the suspect of legal rights before taking the suspect into custody was still legitimate, and that volunteered statements were likewise legitimate.

Justice Tom Clark dissented to the deci- sions with respect to all defendants except the one whose conviction was upheld. According to Clark, the Court should continue to accept the totality of the circumstances test for determining whether a defendant's statements or confession were made voluntarily. Clark concluded that only the defendant whose conviction was upheld gave a confession that was not voluntary.

Justices John M. Harlan, Potter Stewart, and Byron R. White dissented in all the cases. In an opinion authored by Harlan, the dissent argued that the majority had exaggerated the evils of normal police questioning. According to Harlan, "Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law."

Another dissent by White argued that the majority had gone too far in imposing such procedural requirements on the law enforcement community. White predicted that the new procedures would prevent the early release of the truly innocent because they discourage statements that would quickly explain a situation. According to White, the procedures were "a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials." "I have no desire whatsoever," wrote White, "to share the responsibility for any such impact on the present criminal process."

The Miranda case was remarkable in at least two ways. The opinion mandated important procedural changes that had to be followed by each and every law enforcement official across the country. In addition, the majority opinion's survey of interrogation tactics sent a rare notice to the law enforcement community that the Court was aware of, and would not tolerate, abuse in interrogation.

In recent years the Miranda holding has been pared down by the High Court. In 1985 the Court held that if a defendant makes an incriminating statement without the Miranda warning and then later receives the Miranda warning and confesses, the confession should not be excluded from trial (Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 [1985]).

In Withrow v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993), the Court held that a prisoner could not base a habeas corpus petition on the failure of law enforcement to give Miranda rights before interrogation. In Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990), the Court held that the Miranda warning is not required when a suspect who is unaware that she is speaking to a law enforcement officer gives a voluntary statement.

In Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), the Court appeared to return to the totality of the circumstances test. In Moran, a lawyer representing a criminal suspect, Brian Burbine, called the police station while Burbine was in custody. The lawyer was told that Burbine would not be questioned until the next day. In fact, Burbine was questioned that day, and he confessed, without requesting the lawyer and after being told his Miranda rights. According to the Court, the conduct of the police fell "short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant a federal intrusion into the criminal processes of the States." Although law enforcement had not given Burbine a full opportunity to exercise his right to an attorney, a 6-3 majority of the Court concluded that, on the facts of the case, the incriminating statements were made voluntarily and that excluding them was therefore not required.

See: Criminal Law; Due Process of Law; Exclusionary Rule; Fruit of the Poisonous Tree; Right to Counsel.

by Earl Warren and Byron R. White, 1966

In 1964 and 1966 the U.S. Supreme Court handed down opinions concerning the rights of suspects held in custody by the police. It is probable that no two decisions of the Court have aroused such adverse criticism from law enforcement agencies across the nation as the majority opinions in Escobedo v. Illinois (1964) and Miranda v. Arizona (1966). Police officials have faulted these decisions for giving undue protection to criminals and making the work of investigation and conviction more difficult; they have pointed to the 80-percent rise in the crime rate from 1960 to 1967 as evidence that law enforcement procedures should be strengthened, not hampered. Other critics have noted the need for countervailing measures to protect society at the same time that the individual suspected of breaking the law is assured of his rights. The following selection contains portions of Chief Justice Earl Warren's majority opinion and of Associate Justice Byron White's dissent in the Miranda decision of June 13, 1966. The defendant, Ernesto Miranda, had been arrested in Phoenix, Arizona, in connection with a rape and robbery case. Under repeated questioning while in police custody, Miranda produced a signed confession that was admitted as evidence at his trial and secured a conviction.

Mr. Chief Justice Warren. The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. ... Our holding ... briefly stated ... is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

By custodial interrogation, we mean questioning initiated by law-enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody and deprived of his freedom of action. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features - incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.

An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality - beating, hanging, whipping - and to sustained and protracted questioning incommunicado in order to extort confessions. ... Unless a proper limitation upon custodial interrogation is achieved - such as these decisions will advance - there can be no assurance that practices of this nature will be eradicated in the foreseeable future. ...

Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. ... Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. ... To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained." When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems, such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

Even without employing brutality, the "third degree," or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. ...

Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the states in the exercise of their creative rule-making capacities. Therefore, we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.

Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the states to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed:

At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury. Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.

The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware, not only of the privilege but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest. ...

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. ... Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. ...

Our decision is not intended to hamper the traditional function of police officers in investigating crime (see Escobedo v. Illinois, 378 U. S. 478, 492). When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Mr. Justice White. That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious - that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources. What it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. This is what the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.

But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court and to inquire into the advisability of its end product in terms of the long-range interest of the country. ...

First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence, the core of the Court's opinion is that, because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice" ... absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of seventy years' experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts ... or that a succession of cases had steadily eroded the old rule and proved it unworkable. ...

Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. ...

Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question, such as, "Do you have anything to say?" or "Did you kill your wife?" his response, if there is one, has somehow been compelled, even if the accused has been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was "involuntary" in the sense the question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.

Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. ... But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will.

If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. ... Even if one were to postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession.

On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by the Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as, "Where were you last night?" without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why, if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth, and that is what the accused does, is the situation any less coercive insofar as the accused is concerned?

The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that not too many will waive the right; and if it is claimed that he has, the state faces a severe, if not impossible, burden of proof.

All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel - or, as the Court expresses it, a "need for counsel to protect the Fifth Amendment privilege. ..." The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.

In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts.

Criticism of the Court's opinion, however, cannot stop at a demonstration that the factual and textual bases for the rule it propounds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is "to respect the inviolability of the human personality" and to require government to produce the evidence against the accused by its own independent labors. ... More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight.

The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion - that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent.

I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent. ... Particularly when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation. ...

The most basic function of any government is to provide for the security of the individual and of his property. ... These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values.

The modes by which the criminal laws serve the interest in general security are many. First, the murderer who has taken the life of another is removed from the streets, deprived of his liberty, and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country and of the number of instances in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen.

Second, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens or for thinking that without the criminal laws, or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have seen to this date.

Third, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he entered. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities.

The rule announced today will measurably weaken the ability of the criminal law to perform in these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty, and to increase the number of trials. Criminal trials, no matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30 percent of the criminal cases actually tried in the federal courts. ...

But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants, who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence, will now, under this new version of the Fifth Amendment, either not be tried at all or acquitted if the state's evidence, minus the confession, is put to the test of litigation.

I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.

A decision by the United States Supreme Court concerning the rights of persons in police custody. In the case of Miranda versus Arizona, in 1966, the Court ruled that, before questioning by the police, suspects must be informed that they have the right to remain silent and the right to consult an attorney, and that anything they say may be used against them in court. The Miranda ruling protects a suspect's Fifth Amendment right against self-incrimination. The Miranda warning, a written statement of these rights, is normally recited by a police officer before interrogating the suspect in police custody.

Miranda v. Arizona
Supreme Court of the United States
Argued February 28–March 1, 1966 Decided June 13, 1966
Full case name	Miranda v. State of Arizona; Westover v. United States; Vignera v. State of New York; State of California v. Stewart
Citations	384 U.S. 436 (more) 86 S. Ct. 1602; 16 L. Ed. 2d 694; 1966 U.S. LEXIS 2817; 10 A.L.R.3d 974
Prior history	Defendant convicted, Ariz. Superior Ct.; affirmed, 401 P.2d 721 (Ariz. 1965); cert. granted, 382 U.S. 925 (1965)
Subsequent history	Retrial on remand, defendant convicted, Ariz. Superior Ct.; affirmed, 450 P.2d 364 (Ariz. 1969); rehearing denied, Ariz. Supreme Ct. March 11, 1969; cert. denied, 396 U.S. 868 (1969)
Argument	Oral argument
Holding
The Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney. Arizona Supreme Court reversed and remanded.
Court membership
Chief Justice Earl Warren Associate Justices Hugo Black · William O. Douglas Tom C. Clark · John M. Harlan II William J. Brennan, Jr. · Potter Stewart Byron White · Abe Fortas
Case opinions
Majority	Warren, joined by Black, Douglas, Brennan, Fortas
Concur/dissent	Clark
Dissent	Harlan, joined by Stewart, White
Dissent	White, joined by Harlan, Stewart
Laws applied
U.S. Const. amends. V, Fourteenth Amendment

Miranda v. Arizona (consolidated with Westover v. United States, Vignera v. New York, and California v. Stewart), 384 U.S. 436 (1966), was a landmark 5-4 decision of the United States Supreme Court which was argued February 28–March 1, 1966 and decided June 13, 1966. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them.

Contents 1 Background 1.1 The legal aid movement 1.2 Arrest and conviction 2 Decision 2.1 Clark's concurrence in part, dissent in part 2.2 Harlan's dissent 2.3 White's dissent 3 Effects of the decision 4 Subsequent developments 5 The six rules 6 The Miranda Warnings 7 Waiver 8 Assertion 9 Exceptions 10 Consequences of Violation 11 Procedural Requirements 12 Analyzing Miranda 13 Related Doctrines 14 Massiah Doctrine 15 Miranda v Massiah 16 The Voluntariness Standard 17 State Constitutional Challenges 18 State Statutory Challenges 19 See also 20 Further reading 21 External links 22 References

Background

The legal aid movement

During the 1960s, a movement which provided defendants with legal aid emerged from the collective efforts of various bar associations.

In the civil realm, it led to the creation of the Legal Services Corporation under the Great Society program of Lyndon Baines Johnson. Escobedo v. Illinois,, a case which closely foreshadowed Miranda, provided for the presence of counsel during police interrogation. This concept extended to a concern over police interrogation practices, which were considered by many to be barbaric and unjust. Coercive interrogation tactics were known in period slang as the "third degree."

Arrest and conviction

In March 1963, Ernesto Arturo Miranda (born in Mesa, Arizona in 1941, and living in Flagstaff, Arizona) was arrested for robbery. He later confessed to raping an 18 year old woman two days previously. At trial, prosecutors offered not only his confession as evidence (over objection) but also the victim's positive identification of Miranda as her assailant. Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years imprisonment on each charge, with sentences to run concurrently. Miranda's court-appointed lawyer, John J. Flynn, appealed to the Arizona Supreme Court which affirmed the trial court's decision. In affirming, the Arizona Supreme Court emphasized heavily the fact that Miranda did not specifically request an attorney.

Decision

Chief Justice Earl Warren, a former prosecutor, delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police (Warren cited several police training manuals which had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them. Thus, Miranda's conviction was overturned.

“

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in the court of law; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him[1].

”

The Court also made clear what had to happen if the suspect chose to exercise his rights:

“

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 ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

”

Justice Brennan's comments on the Miranda decision.

Although the ACLU had urged the Supreme Court to require the mandatory presence of a "station-house" lawyer at all police interrogations, Warren refused to go that far, or to even include a suggestion that immediately demanding a lawyer would be in the suspect's best interest. Either measure would make interrogations useless because any competent defense attorney would instruct his client to say nothing to the police.

Warren pointed to the existing practice of the FBI and the rules of the Uniform Code of Military Justice, both of which required notifying a suspect of his right to remain silent; the FBI warning included notice of the right to counsel.

However, the dissenting justices thought that the suggested warnings would ultimately lead to such a drastic effect — they apparently believed that once warned, suspects would always demand attorneys and deny the police the ability to seek confessions and accordingly accused the majority of overreacting to the problem of coercive interrogations.

Clark's concurrence in part, dissent in part

In a separate concurrence in part, dissent in part, Justice Tom C. Clark argued that the Warren Court went "too far too fast". Instead, Justice Clark would use the "totality of the circumstances" test enunciated by Justice Goldberg in Haynes v. Washington. Under this test, the court would:

“

consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.

”

Harlan's dissent

In dissent, Justice Harlan wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities." Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

White's dissent

Justice Byron White took issue with the court announcing a new constitutional right when it had no 'factual and textual bases' in the constitution or previous opinions of the court for the rule announced in the opinion, he stated 'self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment' nor did Justice White believe it had any basis in English common law

White further warned the dire consequences of the majority opinion;

“

I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity

”

Effects of the decision

Miranda was retried, and this time the prosecution did not use the confession but called witnesses and used other evidence. Miranda was convicted in 1967 and sentenced to serve 20 to 30 years. He was paroled in 1972. After his release, he returned to his old neighborhood and made a modest living autographing police officers' "Miranda cards" (containing the text of the warning, for reading to arrestees). He was stabbed to death during an argument in a bar on January 31, 1976.^[2]

Following the Miranda decision, the nation's police departments were required to inform arrested persons of their rights under the ruling, termed a Miranda warning.

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]}

Subsequent developments

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]

A number of empirical studies by both supporters and opponents of Miranda have concluded that the giving of Miranda warnings has little effect on whether a suspect agrees to speak to the police without an attorney. However, Miranda's opponents, notably law professor Paul Cassell, argue that letting go 3 or 4% of criminal suspects (who would be prosecuted otherwise but for defective Miranda warnings or waivers) is still too high a price to pay.

Miranda survived a strong challenge in Dickerson v. United States, 530 U.S. 428 (2000), where the validity of Congress's overruling of Miranda was tested. At issue was whether the Miranda warnings were actually compelled by the U.S. Constitution, or were rather merely measures enacted as a matter of judicial policy.

In Dickerson, the Court held 7-2 that the "the warnings have become part of our national culture," speaking through Chief Justice William H. Rehnquist. In dissent, Justice Antonin Scalia argued that the Miranda warnings were not constitutionally required, citing a panoply of cases that demonstrated a majority of the then-current court, counting himself, Chief Justice Rehnquist, and Justices Kennedy, O'Connor, and Thomas, "[were] on record as believing that a violation of Miranda is not a violation of the Constitution."

Dickerson reached the Court under a bizarre set of circumstances. Although the Justice Department under President Clinton had treated Miranda as valid, the Supreme Court was forced to grant certiorari to prevent a circuit split after the 4th Circuit (on its own initiative) took up Professor Cassell's suggestion and ruled that Congress had overruled Miranda with the Omnibus Crime Control and Safe Streets Act of 1968. The Solicitor General refused to defend the constitutionality of the Act, so the Court invited Professor Cassell to argue against the validity of Miranda.^{[citation needed]}

Over time, interrogators began to think of techniques to honor the "letter" but not the "spirit" of Miranda. In the case of Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court halted one of the more controversial practices. Missouri police were deliberately withholding Miranda warnings and questioning suspects until they obtained confessions, then giving the warnings, getting waivers, and getting confessions again. Justice Souter wrote for the plurality: "Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute."^{[citation needed]}

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.^[10] Second, Miranda applies only to "testimonial" evidence as that term is defined under the Fifth Amendment.^[5] 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.^[11][12] 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^[13] or voice exemplars^[14], 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.^[15] 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.^[16]

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."^[17] 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.^[18] 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.^[19] 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.^[20] 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.^[21] 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.^[22]

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'".^[23] 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.^[25]

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.^[26] 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.^[27]

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.^[28]

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.^[29] There is no precise language that must be used in advising a suspect of their Miranda rights.^[30] The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect.^[31] The suspect may be advised of their rights orally or in writing.^[32]

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.^[33]

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.^[34] An express waiver is not necessary.^[35] 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.^[36] 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."^[37] 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.^[38] Under Connelly, a suspect decisions need not be the product of rational deliberations.^[39] 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.^[40] 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.^[41] 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.^[42] 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.^[43] 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.^[44] 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.^[45] 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.^[46] 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.^[49] 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.^[50] 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.^[51]

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.^[52] 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.^[53] Further, the fruit of the poisonous tree doctrine does not apply.^[54] 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^[55] on the grounds that it was obtained in violation of his constitutional rights^[56] must comply with the following procedural requirements:

1. The defendant must file a motion.^[57]
2. The motion must be in writing.^[58]
3. The motion must be filed before trial.^[59]
4. The motion must allege the factual and legal grounds on which the defendant seeks suppression of evidence.^[60]
5. The motion must be supported by affidavits or other documentary evidence.^[61]
6. The motion must be served on the state.^[57]

Failure to comply with a procedural requirement may result in summary dismissal of the motion.^[57] 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.^[62]

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?^[63]

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”

a.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.)

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 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 our 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.

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,".^[64] 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.^[65] 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." ^[66]

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.^[67]

Deliberate elicitation is defined as the intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant.^[68] 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.^[69]

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.^[70] The right does not extend to uncharged offenses even those which are factually related to the charged crime.^[71]

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.^[72] A valid Miranda waiver operates as a wavier of Sixth Amendment right.

Miranda v Massiah

Constitutional Basis - Miranda is based on the Fifth 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.^[73] b. Massiah is offense specific.^[74]

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.^[75]

6. Remedy for violation: The remedy for violation of fifth and sixth amendment rights to counsel are identical. The statements and testimonial information is subject to suppression. Derivative evidence is not subject to suppression under Miranda - fruit of poisonous tree doctrine may apply to Massiah violation.^[76] 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.^[77] Massiah allows for the use of jail house informants provided the informants serve merely as "passive listeners."^[78]

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.^[79] 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.^[80] 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.^[81] Voluntary carried it everyday meaning - the confession had to be a product of the exercise of the defendant's free will rather than police coercion.^[82] After Connelly the totality of circumstances test is not even trigered unless the defendant can show coercive police conduct.^[83] 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.^[84]

State Constitutional Challenges

Every state constitution has aticles and provision guaranteeing individual rights.^[85] In most cases the subject matter is similar to the federal bill of rights.^[86] Most state courts interpretation of their constitution is consistent with the interpretation federal cout's of analagous 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.^[87] 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^[88] (2) the Burbine rule^[89] and (3) the Fare rule.^[90]

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 vio;ltaion of a defendnat'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.

See also

• List of United States Supreme Court cases, volume 384
• List of criminal competencies
• Miranda warning
• Escobedo v. Illinois
• Berkemer v. McCarty
• "Schmerber v. California"

Further reading

• Baker, Liva (1983). Miranda: Crime, law, and politics. New York: Atheneum. ISBN 0689112408. 
• Soltero, Carlos R. (2006). "Miranda v. Arizona (1966) and the rights of the criminally accused". Latinos and American Law: Landmark Supreme Court Cases. Austin, TX: University of Texas Press. pp. 61–74. ISBN 0292714114. 
• Levy, Leonard W. (1986) [1969]. Origins of the Fifth Amendment (Reprint ed.). New York: Macmillan. ISBN 0029195802. 
• Stuart, Gary L. (2004). Miranda: The Story of America's Right to Remain Silent. Tucson, Arizona: University of Arizona Press. ISBN 0816523134. 
• Donald E. Wilkes, Jr., The Attempted Murder of the Miranda Decision (2001) & A Little Bit of Shooty Face (2003).

External links

Wikisource has original text related to this article: Miranda v. Arizona

• Text of Miranda v. Arizona, 384 U.S. 436 (1966) is available from:  · Enfacto · Findlaw

• Article from Common Sense Americanism on decision

References

1. ^ In its opinion the Miranda court used three different variations in outlining the Miranda rights.
2. ^ Miranda Slain; Main Figure in Landmark Suspects' Rights Case - Free Preview - The New York Times
3. ^ People vs. Davis, S056425
4. ^ 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 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)
5. ^ ^{a b} Pennsylvania v. Muniz, 496 U.S. 582 (1990)
6. ^ Miranda v. Arizona, 384 U.S. 436 (1966); California v. Hodari D., 499 U.S. 621, 626 (1991)
7. ^ Rhode Island v. Innis, 446 U.S. 291 (1980)
8. ^ Escobedo v. Illinois, 378 U.S. 478 (1964); Illinois v. Perkins, 110 Ct. 2394 (1990). See also Latzer, State Constitutions and Criminal Justice, (Greenwood Press 1991) citing Walter v. United States, 447 U.S. 649 (1980)
9. ^ The Fifth Amendment applies only to compelled statements used in criminal proceedings
10. ^ 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). Nor can the state offer evidence that the defendant asserted his rights - that he "lawyered up" or refused to talk.
11. ^ Doe v. United States, 487 U.S. 201 (1988)
12. ^ See also United States v. Wade, 388 U.S. 218 (1967)
13. ^ 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)
14. ^ United States v. Mitchell, 556 F.2d 382 (6th Cir. 1977)
15. ^ Pennslyvania v. Muniz, 496 U.S 582 (1990).
16. ^ See Schmerber v. California 384 U.S. 757, 761 n. 5 (1966)
17. ^ 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.
18. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (LEXIS 1998) at 306.
19. ^ 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 (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.
20. ^ 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).
21. ^ Berkemer v. McCarty, 468 U.S. 420 (1984)
22. ^ Miranda is not offense or investigation-specific. Therefore, absent a valid waiver, a person who is in custody cannot be interrogated about the offense for which they are being held in custody or any other offense.
23. ^ Imwinkelried and Blinka, Criminal Evidentiary Foundations, 2d ed. (Lexis 2007) ISBN 1-4224-1741-7 at 620.
24. ^ See Edwards v. Arizona, 451 U.S. 477 (1981).
25. ^ 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)
26. ^ See Latzer, State Constitutions and Criminal Justice, 97 n. 86 (Goodwood Press 1991) quoting Kamisar, LaFave & Isreal, 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."
27. ^ See Commonwealth v. Leone, 386 Mass. 329 (1982).
28. ^ Other bases for exclusion include that the confession was the product of 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.
29. ^ 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 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.
30. ^ 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).
31. ^ Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (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.
32. ^ U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
33. ^ Gregory Declue, Oral Miranda warnings: A checklist and a model presentation, The Journal of Psychiatry & Law (2007) at 421.
34. ^ Miranda v. Arizona, 384 U.S. at 475
35. ^ United States v. Melanson, 691 F.2d 579 (1st Cir.), cert. denied, 454 U.S. 856, 102 S. Ct. 305, 70 L. Ed. 2d 151 (1981).
36. ^ 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473, 485 (1987)
37. ^ 479 U.S. at 166.
38. ^ Bloom and Brodin, Criminal Procedure 2nd ed. (Little Brown 1986) 250.
39. ^ See Moran v. Burbine, 475 U.S.
40. ^ Davis v. United States, 512 U.S. 452 (1994)
41. ^ Davis v. United States, 114 S. Ct. 2350 (1994)
42. ^ United States v. Davis
43. ^ "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 to impeach the defendant's testimony. Doyle v. Ohio
44. ^ 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)
45. ^ The Supreme Court has agreed to hear Maryland v. Shatzer to determine how long the protections afforded by the Edward's rule last. Tackling Edwards v. Arizona One More Time
46. ^ The statement of the defendant is admissible when offered by the state as substantive evidence of guilt as an adimission 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 te use of potentilly devastating evidence of prior convictions.
47. ^ See Pennsylvania v. Muniz, 496 U.S. 582 (1990)
48. ^ New York v. Quarles, 467 U.S. 649 (1984)
49. ^ See Illinois v. Perkins, 496 U.S. 292 (1990)
50. ^ Massiah v. United States, 377 U.S. 201 (1964)
51. ^ New York v. Quarles, 467 U.S. 649, 655 (1984).
52. ^ 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.
53. ^ 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.
54. ^ 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 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.
55. ^ Evidence includes physical evidence, confessions and identification evidence. Derivative evidence may also be excluded. See Federal Rules of Criminal Prodcedure 12(b), 41(e) and 41(f) respectively.
56. ^ 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.
57. ^ ^{a b c} NC Defender Manual, Suppression Motions (NC School of Government 2002)
58. ^ 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.
59. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (Lexis 1998) at 5.
60. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (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 2ed. (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.
61. ^ 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 be used as substantive evidence of guilt, the statements can be used to impeach the defendant's testimony.
62. ^ See Fed Rules of Evidence 104(a) & (b)
63. ^ In Fare v Micahel C. the United States Supreme Court rejected a rule requiring special warnings for juveniles.
64. ^ 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 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 adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."
65. ^ 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 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).
66. ^ 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 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)
67. ^ 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)"
68. ^ Illinois v. Perkins, 496 U.S. 292 (1990).
69. ^ 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 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).
70. ^ 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 appled 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).
71. ^ Texas v. Cobb, 121 S. Ct. 1335 (2001).
72. ^ Brewer v. Williams, 430 U.S. 387 (1977)
73. ^ Mathis v. United States, 391 U.S. 1 (1968)
74. ^ See McNeil v. Wisconsin, 501 U.S. 171 (1991)
75. ^ 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 .
76. ^ Fellers v. United States,124 S.Ct. 1019 (2004)
77. ^ 474 U.S. 159 (1989)
78. ^ 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 induced the confession. The "voluntariness" test is implicated in any police interrogation - neither Miranda "custody" or 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.
79. ^ 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 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.
80. ^ Colorado v. Connelly, 479 U.S. 157 (1986)
81. ^ 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 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"')
82. ^ 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")
83. ^ Bloom & Brodin, Criminal Procedure (Aspen 1996) at 247.
84. ^ Bloom & Brodin, Criminal Procedure (Aspen 1996)
85. ^ Latzer, State Constitutions and Criminal Justice (Greenwood 1991)
86. ^ Id. at 2. This similarlity is hardly surprising since the federal constitutiion and many state constitutions had common sources the state constitutionsof some of the more important states such as Virginia.
87. ^ Id. at 89-91.
88. ^ In Harris the United States Supreme Coiurt allowed a Miranda=defective statement to be used to impeach the trial testimony of a defendant. Note the Harris rule does not permit the use of a statment that fails to meet the voluntariness standards of the due procee 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.
89. ^ 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 involuntary. Burbine decision was not well-received by the state courts. Six states specifically rejected the Burbine rule.
90. ^ 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 juvenile's were essentially to be treated the same as adult's for purposes of Miranda. Many states adopted special rules concerning police interrogation of juveniles

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