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Miranda v. Arizona (consolidated with Westover v. United States, Vignera v. New York, and California v. Stewart), , was a landmark 5-4 decision of the United States Supreme Courtmarker 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.


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, Arizonamarker in 1941, and living in Flagstaff, Arizonamarker) 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 Courtmarker 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.


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

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 FBImarker 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:

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;

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.

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.

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, 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, ).

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, ).

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, ). 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.

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, , 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 Departmentmarker 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.

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, , 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."

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. Therefore, for Miranda to apply six factors must be present:

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

The first requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no import. Second, Miranda applies only to "testimonial" evidence as that term is defined under the Fifth Amendment. For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information. The Miranda rule does not prohibit compelling a person to engage in non-assertive conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving handwriting or voice exemplars, fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause. On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question "did you kill the victim" the conduct is testimonial, it is the same as saying "yes I did" and Miranda would apply.

Third, the evidence must have been obtained while the suspect was in custody. This limitation follows from the fact that Miranda's purpose is to protect suspects from the compulsion inherent in the police dominated atmosphere attendant to arrest. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent "associated with a formal arrest." A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. Telling a person he is "under arrest" is sufficient to satisfy this requirement even though the person may not be otherwise physically restrained. Absent a formal arrest, the issue is whether a reasonable person in the suspect's position would have believed that he was under "full custodial" arrest. Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street - a Terry stop. Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered actual arrest or its functional equivalent for purposes of the Fifth Amendment. The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave.

Fourth, the evidence must have been the product of interrogation. A defendant who seeks to challenge the admissibility of a statement under Miranda must show that the statement was "prompted by police conduct that constituted 'interrogation'". A volunteered statement by a person in custody does not implicate Miranda. In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Thus, a practice that the police "should know is reasonably likely to evoke an incriminating response from a suspect … amounts to interrogation." For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are implicitly communicating a question: "How do you explain this?" On the other hand, "unforeseeable results of [police] words or actions" do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, "I couldn't do that even if I was sober", would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.

Fifth, the interrogation must have been conducted by state-agents. In order to establish a violation of the defendant's Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent. If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that they are being questioned by the police. Private security guards and "private" police present special problems. They are generally not regarded as state-agents. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda's safeguards since an officer is considered to be "on duty" at all times.

Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.

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

The Miranda Warnings

The suspect must be properly advised of their Miranda rights. The constitutional rights safeguarded by Miranda are the Sixth Amendment right to counsel and the Fifth Amendment right against compelled self incrimination. The Sixth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent - the right to refuse to answer questions or to otherwise communicate information. Therefore, before any interrogation begins, the police must advise the suspect that they have (1) the right to remain silent; (2) that anything the suspect says can be used against him; (3) that the suspect has the right to have an attorney present before and during the questioning and (4) the suspect has the right to have a "free" attorney appointed to represent them before and during the questioning if the suspect cannot afford to hire an attorney. There is no precise language that must be used in advising a suspect of their Miranda rights. The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect. The suspect may be advised of their rights orally or in writing.

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

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


Simply advising the suspect of their rights does not fully comply with the Miranda rule. The suspect must also voluntarily waive their Miranda rights before questioning can proceed. An express waiver is not necessary. However, most law enforcement agencies use written waiver forms which include questions designed to establish that the suspect expressly waived their rights. Typical waiver questions are (1) "Do you understand each of these rights?" and (2) "Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?"

The waiver must be "knowing and intelligent" and it must be "voluntary." These are separate requirements. To satisfy the first requirement the state must show that the suspect generally understood their rights (right to remain silent and right to counsel) and the consequences of forgoing those rights (that anything they said could be used against them in court). To show that the waiver was "voluntary" the state must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct. The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances. As noted previously, courts traditionally focused on two categories of factors in making this determination: (1) the personal characteristics of the suspect and (2) the circumstances attendant to the waiver. However, the Supreme Court significantly altered the voluntariness standard in the case of Colorado v. Connelly. In Connelly the Court held that "Coercive police activity is a necessary predicate to a finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." The Court has applied this same standard of voluntariness is determining whether a waiver of a suspect's Fifth Amendment Miranda rights was voluntary. Thus, a waiver of Miranda rights is voluntary unless the defendant can show that their decision to waive their rights and speak to the police was the product of police misconduct and coercion that overcame the defendant's free will. After Connelly the traditional totality of circumstances analysis is not even reached unless the defendant can first show such coercion by the police. Under Connelly, a suspect decisions need not be the product of rational deliberations. In addition to showing that the waiver was "voluntary", the prosecution must also show that the waiver was "knowing" and "intelligent". Essentially this means the prosecution must prove that the suspect had a basic understanding of their rights and an appreciation of the consequences of foregoing those rights. The focus of the analysis is directly on the personal characteristics of the suspect. If the suspect was under the influence of alcohol or drugs, or suffered from an emotional or mental condition that substantially impaired their capacity to make rational decisions, the courts may well decide that the suspect's waiver was not knowing and intelligent.

A waiver must also be clear and unequivocal. An equivocal statement is ineffective as a waiver and the police may not proceed with the interrogation until the suspect's intentions are made clear. The requirement that a waiver be unequivocal is to be distinguished from situations in which the suspect makes an equivocal assertion of their Miranda rights after the interrogation has begun. Any post waiver assertion of a suspect's Miranda rights must be clear and unequivocal. Any ambiguity or equivocation will be ineffective. If the suspect's assertion is ambiguous, the interrogating officers are permitted to ask questions to clarify the suspect's intentions, although they are not required to. In other words, if a suspect's assertion is ambiguous, the police may either attempt to clarify the suspect's intentions or they may simply ignore the ineffective assertion and continue with the interrogation. The timing of the assertion is significant. Requesting an attorney prior to arrest is of no consequence because Miranda applies only to custodial interrogations. The police may simply ignore the request and continue with the questioning; however, the suspect is also free to leave.


If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation. In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between termination of original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter. The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant of his own volition contacts the police. If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.


Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jail house informant exception and (3) the public safety exception. Arguably only the last is a true exception – the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered "interrogation" under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule. The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information. The window of opportunity for the exception is small. Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited. The public safety exception applies where circumstances present a clear and present danger to the public's safety and the officers have reason to believe that the suspect has information that can end the emergency.

Consequences of Violation

Assuming that a Miranda violation occurred - the six factors are present and no exception applies - the statement will be subject to suppression under the Miranda exclusionary rule. That is, if the defendant objects or files a motion to suppress, the exclusionary rule would prohibit the prosecution from offering the statement as proof of guilt. However, the statement can be used to impeach the defendant's testimony. Further, the fruit of the poisonous tree doctrine does not apply. Since the fruit of the poisonous tree doctrine does not apply to Miranda violations, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play. Therefore, derivative evidence would be fully admissible. For example, the police continue with a custodial interrogation after the suspect has asserted his right to silence. During his post-assertion statement the suspect tells the police the location of the gun he used in the murder. Following this information the police find the gun. Forensic testing identify the gun as the murder weapon and fingerprints lifted from the gun match the suspect's. The contents of the Miranda defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence would not be subject to suppression.

Procedural Requirements

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

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

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

Analyzing Miranda

1. Was the defendant interrogated?
a. Was the defendant questioned? OR
b. Did the interrogators engage in conduct reasonably likely to elicit an incriminating response?

If “Yes” go to 2; If “No”, Miranda does not apply.

2. Was the interrogation conducted by government agents?

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

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

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

4. Was the defendant in custody during the interrogation?
a. Was the defendant under arrest? OR
b. Would a reasonable person in the defendant’s position believe that she was under arrest?

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

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

If “Yes” go to 6; If “No”, go to 19.

6. Did the defendant waive her rights?

If “Yes” go to 7; If “No”, go to 19.

7. Was the waiver “knowing and intelligent”?

If “Yes” go to 8; If “No”, go to 19.

8. Was the waiver “voluntary

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,". 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. 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."

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.

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

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. The right does not extend to uncharged offenses even those which are factually related to the charged crime.

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. 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. Scopea. 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.b. Massiah is offense specific.

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.

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. 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. Massiah allows for the use of jail house informants provided the informants serve merely as "passive listeners."

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. 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. 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. 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. After Connelly the totality of circumstances test is not even trigered unless the defendant can show coercive police conduct. 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.

State Constitutional Challenges

Every state constitution has aticles and provision guaranteeing individual rights. In most cases the subject matter is similar to the federal bill of rights. 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. 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 (2) the Burbine rule and (3) the Fare rule.

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

Further reading

External links


  1. Miranda Slain; Main Figure in Landmark Suspects' Rights Case - Free Preview - The New York Times
  2. People vs. Davis, S056425
  3. 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)
  4. Pennsylvania v. Muniz, 496 U.S. 582 (1990)
  5. Miranda v. Arizona, 384 U.S. 436 (1966); California v. Hodari D., 499 U.S. 621, 626 (1991)
  6. Rhode Island v. Innis, 446 U.S. 291 (1980)
  7. 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)
  8. The Fifth Amendment applies only to compelled statements used in criminal proceedings
  9. 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.
  10. Doe v. United States, 487 U.S. 201 (1988)
  11. See also United States v. Wade, 388 U.S. 218 (1967)
  12. 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)
  13. United States v. Mitchell, 556 F.2d 382 (6th Cir. 1977)
  14. Pennslyvania v. Muniz, 496 U.S 582 (1990).
  15. See Schmerber v. California 384 U.S. 757, 761 n. 5 (1966)
  16. 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.
  17. Adams & Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (LEXIS 1998) at 306.
  18. 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.
  19. 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).
  20. Berkemer v. McCarty, 468 U.S. 420 (1984)
  21. 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.
  22. Imwinkelried and Blinka, Criminal Evidentiary Foundations, 2d ed. (Lexis 2007) ISBN 1-4224-1741-7 at 620.
  23. See Edwards v. Arizona, 451 U.S. 477 (1981).
  24. 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)
  25. 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."
  26. See Commonwealth v. Leone, 386 Mass. 329 (1982).
  27. 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.
  28. 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.
  29. 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).
  30. 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.
  31. U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
  32. Gregory Declue, Oral Miranda warnings: A checklist and a model presentation, The Journal of Psychiatry & Law (2007) at 421.
  33. Miranda v. Arizona, 384 U.S. at 475
  34. 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).
  35. 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473, 485 (1987)
  36. 479 U.S. at 166.
  37. Bloom and Brodin, Criminal Procedure 2nd ed. (Little Brown 1986) 250.
  38. See Moran v. Burbine, 475 U.S.
  39. Davis v. United States, 512 U.S. 452 (1994)
  40. Davis v. United States, 114 S. Ct. 2350 (1994)
  41. United States v. Davis
  42. "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
  43. 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)
  44. 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
  45. 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.
  46. See Pennsylvania v. Muniz, 496 U.S. 582 (1990)
  47. New York v. Quarles, 467 U.S. 649 (1984)
  48. See Illinois v. Perkins, 496 U.S. 292 (1990)
  49. Massiah v. United States, 377 U.S. 201 (1964)
  50. New York v. Quarles, 467 U.S. 649, 655 (1984).
  51. 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.
  52. 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.
  53. 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.
  54. 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.
  55. 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.
  56. NC Defender Manual, Suppression Motions (NC School of Government 2002)
  57. 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.
  58. Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (Lexis 1998) at 5.
  59. 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.
  60. 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.
  61. See Fed Rules of Evidence 104(a) & (b)
  62. In Fare v Micahel C. the United States Supreme Court rejected a rule requiring special warnings for juveniles.
  63. 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."
  64. 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).
  65. 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)
  66. 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)"
  67. Illinois v. Perkins, 496 U.S. 292 (1990).
  68. 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).
  69. 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).
  70. Texas v. Cobb, 121 S. Ct. 1335 (2001).
  71. Brewer v. Williams, 430 U.S. 387 (1977)
  72. Mathis v. United States, 391 U.S. 1 (1968)
  73. See McNeil v. Wisconsin, 501 U.S. 171 (1991)
  74. 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 .
  75. Fellers v. United States,124 S.Ct. 1019 (2004)
  76. 474 U.S. 159 (1989)
  77. 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.
  78. 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.
  79. Colorado v. Connelly, 479 U.S. 157 (1986)
  80. 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"')
  81. 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")
  82. Bloom & Brodin, Criminal Procedure (Aspen 1996) at 247.
  83. Bloom & Brodin, Criminal Procedure (Aspen 1996)
  84. Latzer, State Constitutions and Criminal Justice (Greenwood 1991)
  85. 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.
  86. Id. at 89-91.
  87. 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.
  88. 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.
  89. 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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