Is a suspect's written statement admissible if no Miranda warning is given?

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Question

After the Boston Marathon bombing, one suspect survived the manhunt but was unable to speak due to serious injuries. Police arrested him and questioned him in custody in the hospital without first reading him his Miranda rights. The suspect could not speak, so he wrote his responses. Can prosecutors use his written responses even though he did not receive a Miranda warning? Does it matter that his responses were written rather than spoken?

Answer

Prosecutors may be able to use evidence disclosed in the suspect’s written statements, and possibly the statements themselves, at trial depending on how a court views the pre-Miranda warning questioning and what use prosecutors try to make of the statements at trial. 

(For more information about Miranda, see Police Questioning of Suspects: The Miranda Rule. Also see Exceptions to the Miranda Rule.) 

Miranda Warning is Required Before Questioning in Custody

In general, police must inform a person they wish to question in custody that she has the right to remain silent, that anything she says may be used against her in court, and that she has a right to have an attorney present during questioning (the Miranda warning). (Miranda v. Arizona, 384 U.S. 436 (1966.) Although there are limited exceptions to this requirement, (discussed below), it applies regardless of how the person in custody responds (whether orally, in writing, or otherwise, such as in sign language). In other words, it does not matter that the suspect’s statements were written rather than spoken.

Where the Writing Is Evidence Itself, Rather Than A Statement, No Warning Needed

The Miranda requirement is not triggered when police ask a suspect for a writing sample to compare to other pieces of evidence (for example, a handwritten note from one of the alleged bombers to the other). However, a defendant could object to a prosecutor trying to get the contents of a written statement into evidence where the writing was obtained in response to questioning and before the defendant received a Miranda warning.

Any Evidence Discovered From An Illegal Statement Could Be Excluded

If police question a suspect in custody without Mirandizing him, and subsequently use his written responses to discover other evidence against him (as where the suspect’s statement leads police to a warehouse containing physical bomb-making evidence), the suspect could seek an order excluding the physical evidence (as well as the statement itself) from use at his trial.

Public Safety Exception to Miranda Warning Requirement

The FBI and the other authorities who questioned the Boston Marathon bombing suspect said they needed to do so without Mirandizing him because of the urgent need to find out if he knew the whereabouts of other explosives that could harm more people. The U.S. Supreme Court has recognized a public safety exception to the Miranda warning requirement where immediate interrogation is necessary to protect public safety. (New York v. Quarles, 467 U.S. 649 (1984).)

Written Statement May Be Inadmissible Hearsay

As a general matter, a person’s statements made out of court are not admissible to prove the truth of their contents in court because they are “hearsay.” Hearsay is considered untrustworthy because it is not made in the presence of a judge, jury, or attorneys who could explore the statement and weigh its credibility. There are exceptions that allow some hearsay statements into court.

Exceptions That Allow Hearsay Into Evidence

In the case of the Boston bombing suspect’s written statement, the prosecutor may be allowed to introduce the suspect's written statement at his (or another surviving accomplice’s) trial under certain circumstances. When a person is unavailable to testify at trial (due to injury or death), an out-of-court statement may be admitted if the statement exposes the person to criminal liability and it is supported by corroborating evidence. The idea behind this exception is that it is unlikely a person would lie about something that could lead to criminal prosecution, and the added element of corroborating evidence makes the statement even more trustworthy.

If the suspect is able to attend trial, the prosecution cannot take advantage of this exception. This is true even if the suspect refuses to testify at trial, which is his right under the Fifth Amendment to the Constitution. But, if he does testify, he may open the door to another way for the prosecution to try to get his written statement into evidence.

Written Statement Could Be Offered To Impeach A Witness’s Testimony

If the Boston bombing suspect chooses to take the witness stand at trial (his own or an accomplice’s) and gives testimony that contradicts his written responses to the in-custody questioning, the prosecution can offer the written statement to show that his testimony is not credible (in other words, to “impeach” him). The out-of-court written statement is not hearsay when offered in this way because the prosecutor is not offering it to prove the truth of what it says but only to show that what it says is different than what the suspect is saying on the stand.

Miranda and Other Barriers Can Be Overcome

Although Miranda applies to a suspect’s written response to questioning, there are various ways around the exclusion of such statements from evidence. At every trial, the prosecutor and the defense attorney spend a lot of time sparring over whether evidence is admissible. As much as possible these disputes are heard outside the jury's presence because, once a jury hears or sees a piece of evidence, it is impossible to “unring the bell” and their memory of that evidence is with them in the jury room during deliberations. If the Boston bombing suspect is tried, there will likely be a major battle over what evidence is admissible.

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