The Booking Question Exception to Miranda

Answers to routine questions can come back to bite defendants.

When officers book suspects at the police station, they ask a variety of routine questions. The answers to these questions can often be used against the defendant in court, even if there hasn’t been a Miranda warning.

The Booking Process

After a suspect is arrested and taken to jail, a correctional officer, often called the booking officer, will normally book the suspect. The booking process includes:

  • taking the suspect’s photo (mug shot) and fingerprints
  • inventorying any personal possessions, such as a wallet, purse, or cellphone, and
  • asking booking questions.

Booking questions are routine queries that jail staff ask people upon arrest. These questions are intended to collect basic identifying information and ensure the safety and security of people in the jail. Routine booking-question topics can include:

  • name, address, and aliases
  • height, weight, and eye color
  • date of birth
  • Social Security number
  • spouse’s name
  • next of kin
  • place of employment
  • health and physical condition
  • current use of drugs or alcohol
  • current possession of weapons or any other objects, and
  • gang affiliation, gang monikers, and gang tattoos (gang affiliation impacts housing decisions in jail).

The Booking Question Exception

Normally, police officers are required to inform in-custody suspects of their Miranda rights before they interrogate them. However, booking questions often aren’t considered part of an interrogation on the theory that they aren’t designed to elicit incriminating information. Therefore, booking officers usually don’t need to give the Miranda warning. That said, there are exceptions: The state supreme court in California, for example, has held that, without a Miranda warning, incriminating information given by an arrestee in response to a jailer's question about gang affiliation will generally be inadmissible. (Pennsylvania v. Muniz, 496 U.S. 582 (1990), People v. Elizalde, 61 Cal. 4th 523 (2015).)

Suppose that, at booking, an officer asks an arrestee if he has any contagious diseases. The arrestee responds that he has HIV. If his HIV status is relevant to the charged crimes (perhaps because he bit someone in a bar fight), then the officer could be free to testify that that suspect said that he had HIV. It wouldn't matter that the officer didn’t give the suspect Miranda warnings, so long as the question was routine and wasn’t intended to elicit an incriminating statement.

A police officer cannot ask questions likely to elicit incriminating statements and then hide behind the booking questions exception. A judge (not a police officer) has the last word on whether the question was legitimately related to booking. For example, a booking officer’s question about a weapon found at the murder scene isn’t necessarily a proper one: If the defendant hasn’t been Mirandized, his response may well be inadmissible in court.

Voluntary Statements

Of course, any voluntary statement made during the booking process that’s not in response to a question posed by an officer can also usually be used against the defendant. (Rhode Island v. Innis, 446 U.S. 291 (1980).)

No Right to Attorney

Suspects normally don’t have the right to an attorney during the booking process. While criminal defendants have the constitutional right to legal representation at every “critical stage” of the proceedings, courts have decided that booking is simply a routine administrative process.

Getting Legal Help

Because defendants typically aren’t entitled to legal representation during the booking process, answering intake questions can be tricky. Make sure, though, to consult with an attorney at your first opportunity. An experienced criminal defense lawyer can help you decide what, if anything, to say to police, explain the applicable law, and guide you through the court process. Before you speak to a lawyer, keep in mind that anything you say to law enforcement may be admissible in court.

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