The Booking Question Exception to Miranda

Answers to routine questions can come back to bite defendants.

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When officers book suspects at the police station, they ask a variety of routine questions. The answers to these questions can 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 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 cell phone, and
  • asking booking questions.

Booking questions are routine queries that jail staff ask all 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 questions can include asking about a person's:

  • 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 Questions Exception

Normally, police officers are required to inform in-custody suspects of their Miranda rights before they interrogate them. (Miranda v. Arizona, 384 U.S. 436 (1966); for more information, see Miranda: The Meaning of “Custodial Interrogation.”) However, booking questions aren’t considered part of an interrogation, so long as the questions aren’t designed to elicit incriminating information. Therefore, booking officers don’t need to give the Miranda warning. (Pennsylvania v. Muniz, 496 U.S. 582 (1990); see Do officers have to read the Miranda rights before talking to a suspect?)

For example, 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 testify that that suspect said that he had HIV. It doesn’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. Similarly, a defendant who claims a gang affiliation or reveals a gang nickname during booking should expect the prosecution to introduce that information during trial.

However, 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 be used against the defendant. (Rhode Island v. Innis, 446 U.S. 291 (1980).) During booking, suspects shouldn’t volunteer information.

No right to attorney

Suspects 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.

Obtaining Legal Assistance

Since defendants aren’t entitled to an attorney during the booking process, answering intake questions can be tricky. As soon as you reasonably can, you should invoke your right to counsel, then consult a lawyer. An attorney can help you decide what, if anything, to say to police and prepare the strongest possible defense. But before you speak to one, keep in mind that anything you say may be admissible in court.

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