II. Police Questioning of Arrestees

This section deals with police attempts to question you in situations in which you are in custody. It explains the Miranda rule and when it does and does not apply.

13. What is a “ Miranda warning”?

When police officers make an arrest, they commonly interrogate (question) the arrestee. Usually they are trying to strengthen the prosecution’s case by getting the arrestee to provide some evidence of guilt. An interrogation may have other purposes as well, such as developing leads to additional suspects.

By answering police questions after arrest, a suspect gives up two rights granted by the U.S. Constitution:

• the Fifth Amendment right to remain silent, and
• the Sixth Amendment right to have a lawyer present during the questioning.

Although people are entitled to voluntarily give up these and other rights, the courts have long recognized that voluntariness depends on knowledge and free will, and that people questioned by the police while they are in custody frequently have neither.

To remedy this situation, the U.S. Supreme Court ruled in the case of Miranda v. Arizona (1966) that information obtained by police officers through the questioning of a suspect in police custody may be admitted as evidence at trial only if the questioning was preceded by certain cautions known collectively as a “Miranda warning.” Accordingly, police officers usually begin their questioning of a person in custody by first making the following statements:

• You have the right to remain silent.
• If you do say anything, what you say can be used against you in a court of law.
• You have the right to consult with a lawyer and have that lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.
• If you choose to talk to the police officer, you have the right to stop the interview at any time.

If a suspect is in police custody, it doesn’t matter whether the interrogation takes place in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field. Other than routine automobile stops and brief on-the-street detentions, once a police officer deprives a suspect of freedom of action in any way, the suspect is in police custody and Miranda is activated. (See Question 20 for more on when a person is in custody.)

Case Example: Kelly Rozmus is arrested for assault. At the police station, Officer Mayorkas seeks to question Rozmus about the events leading up to the assault.

Question: Does Rozmus have to answer the officer’s questions?

Answer: No. Rozmus has a constitutional right to remain silent, and if Officer Mayorkas fails to warn Rozmus of the Miranda rights before questioning begins, then nothing Rozmus says is later admissible in evidence.

14. What happens if a suspect who is in custody isn’t given a Miranda warning and answers a police officer’s questions?

If a police officer questions a suspect without giving the suspect the Miranda warning, nothing the suspect says can be used against the suspect at trial. The purpose of this “exclusionary rule” is to deter the police from violating the Miranda rule, which the U.S. Supreme Court has ruled is required by the Constitution (Dickerson v. U.S., U.S. Sup. Ct. 2000).

15. Can the government ever use statements against defendants if they were obtained in violation of Miranda?

Yes, assuming that the only reason that a defendant’s statement is inadmissible is the police Miranda violation and not other police misconduct such as physical coercion.

If the defendant gives testimony at trial that conflicts with the statement made to the police, the prosecutor can offer the statement into evidence to impeach (attack) the defendant’s credibility. Similarly, rules in many jurisdictions allow prosecutors to offer statements obtained in violation against defendants in sentencing hearings (U.S. v. Nichols, 4th Cir., 2006). For example, assume that in an improperly-obtained statement, a defendant admits to the police that he was armed with a weapon when he committed a crime. The defendant’s confession may not be admissible at trial to prove the defendant’s guilt, but the prosecutor may offer it into evidence during sentencing to try to obtain a harsher sentence.

Also, the government may be able to use the “fruits” of statements taken in violation of Miranda. If police officers learn about evidence by taking a defendant’s statement in violation of Miranda, that evidence might be admissible against the defendant. Here are some common examples:

• In dangerous situations, the “public safety” exception allows police officers to question suspects about weapons without giving a Miranda warning, and if the interrogation leads the police to a weapon, it can be used against the suspect at trial (N.Y. v. Quarles, U.S. Sup. Ct. 1984).
• Dangerous situation or not, any tangible evidence (such as a threatening note or the loot from a robbery) that the police learn about through questioning that violates Miranda can generally be used against a suspect in court (U.S. v. Patane, U.S. Sup. Ct. 2004).
• If a statement taken in violation of Miranda leads the police to another witness, that witness can testify against a suspect at trial (Michigan v. Tucker, U.S. Sup. Ct. 1974).
• The “inevitable discovery” doctrine means that if the police would have eventually found tangible evidence on their own, the evidence can be used against a suspect at trial even if the police find out about it during questioning that violates Miranda.

These interpretations of the Miranda rule give the police a real incentive to violate the Miranda rule. Moreover, they mean that suspects have to protect themselves. Suspects who think that what they say can’t be used against them at trial because they weren’t given Miranda warnings need to understand that the fruits of their improperly obtained statements may well be admissible in evidence.

Case Example 1: Mal Addy is arrested for assault with a deadly weapon. The police question Addy without giving him the Miranda warning. Addy confesses to the crime and tells the police where he hid the knife that he used in the attack. The police then locate the knife.

Question: What evidence can the prosecutor use against Addy at trial?

Answer: The prosecutor cannot offer Addy’s confession into evidence at trial. However, the knife can be used at trial because the knife is a tangible object, not a statement.

Case Example 2: Same case. While the police question Addy without giving him a Miranda warning, he tells them that he has illegal drugs in the backpack that he is carrying when he is arrested.

Question: Can Addy be charged with possession of illegal drugs?

Answer: Yes, because the police would have inevitably found the drugs when they inventoried the contents of the backpack during the booking process.

16. Are there circumstances in which a statement by a suspect can’t be used against that suspect even if a Miranda warning is given?

Yes, but only in unusual circumstances. If a police officer gives a suspect a Miranda warning and then physically coerces the suspect into talking (say, refusing a suspect’s requests for medicine that the suspect has to take), the resulting statement cannot be used against the suspect.

A confession following the giving of a Miranda warning also cannot be used against a suspect if it’s the result of a ploy known as “question first, warn later.” Police using this technique question a suspect without giving a Miranda warning. If a suspect confesses, the police then give a Miranda warning and convince the suspect that having already confessed, the suspect should waive (give up) the right to remain silent and repeat the confession. Even though the second confession follows a Miranda warning, neither the first nor the second confession can be used against the suspect at trial (Missouri v. Seibert, U.S. Sup. Ct. 2004).

17. Am I entitled to have my case dismissed if the police questioned me without advising me of my Miranda rights?

No. One popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer something the suspect says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:

• the suspect is not in custody (see Question 20)
• the police do not question the suspect, or
• the police do question the suspect, but the prosecution does not try to use the suspect’s responses as evidence.

In essence, if the prosecution can win its case without using the illegally-obtained evidence, a Miranda violation will not cause dismissal of the case.

18. After I’m arrested, is it ever a good idea to talk to the police?

Not without talking to a lawyer first. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to remain silent until the attorney has assessed the charges and counseled the client about case strategy.

19. How do I assert my right to remain silent if I am being questioned by the police?

Suspects do not need to use any magic words to indicate that they want to remain silent. Indeed, they don’t have to use any words at all. Arrestees may invoke their Miranda rights by saying things like the following:

• “I want to talk to an attorney.”
• “I refuse to speak with you.”
• “Please leave me alone.”
• “I don’t have anything to say.”
• “I claim my Miranda rights.”

If the police continue to question an arrestee who says anything like the above, the police have violated Miranda. As a result, nothing the arrestee says after that point is admissible in evidence.

20. If the police question me before arresting me, does the Miranda rule apply?

Not necessarily. Miranda applies only to “custodial” questioning. A person is not in custody unless a police officer has “deprived a [person] of his freedom of action in a significant way.” Whether a suspect is in custody and therefore not free to leave is an objective issue that judges decide without taking into account a suspect’s inexperience or psychological condition (Yarborough v. Alvarado, U.S. Sup. Ct. 2004).

When it decided the Miranda case, the Supreme Court said that its ruling did not apply to “general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” Thus, unless a person is in custody, an officer can question the person without giving the Miranda warning, and whatever the person says is admissible in evidence.

Case Example: Officer Roy Altie responds to a call to investigate a purse-snatching incident. The officer learns from the victim that the culprit was a white male, about 5'10" tall, weighing about 175 pounds and wearing a light-colored sweatshirt. About ten minutes later, about a mile from where the purse-snatching took place, Officer Altie sees a man generally fitting the attacker’s description walking alone. Officer Altie realizes that he lacks sufficient evidence to make an arrest, and approaches the man merely to question him about his activities and whereabouts during the preceding one-half hour.

Question: Does Officer Altie have to precede the questioning with the Miranda warning?

Answer: No. The victim’s description was so general that it could apply to many men. Thus, Officer Altie lacked probable cause to make an arrest, and did not intend to make an arrest. Officer Altie was engaged in general on-the- scene questioning, and therefore did not have to give the Miranda warning.

21. Do the police have to give me a Miranda warning if I’m stopped for a traffic violation?

No, so long as the police officer simply asks a motorist for identification and limits discussion to the traffic offense for which the officer stopped the motorist. Routine traffic violations are infractions, not crimes. A motorist’s statement to a police officer relating to events leading up to a ticket is therefore admissible even if the officer did not give the motorist the Miranda warning. However, a Miranda warning would be required if an officer detains a motorist in order to question the motorist about crimes unrelated to the traffic stop.

Case Example: Officer Starsky stops Hutch for running a red light. After issuing a ticket, the officer orders Hutch from the car and questions him about a burglary that had taken place nearby. Officer Starsky does not give Hutch the Miranda warning.

Question: Is what Hutch says to the officer about his whereabouts at the time of the burglary admissible in evidence?

Answer: No. Hutch was ordered out of the car and thus was not free to leave. Because Hutch was in custody and Officer Starsky questioned him about a crime unrelated to the traffic offense without giving Hutch the Miranda warning, Hutch’s statements are inadmissible in evidence.

22. Are statements that I make voluntarily before I’m questioned admissible in evidence?

In general, yes. Miranda applies only to statements that are the product of police questioning. If an arrestee volunteers information to a police officer, the information is admissible in evidence.

Case Example: After failing a series of sobriety tests, Ina Bryate is arrested for drunk driving. As the officer is taking her toward the police vehicle, Ina says, “I couldn’t possibly be drunk. I only had a few beers at the sorority party.” Before Ina said this, the officer had neither given her a Miranda warning nor questioned her.

Question: Is what Ina said admissible in evidence?

Answer: Yes. Ina volunteered the remark; the officer did not elicit it with a question. Thus, the fact that Ina had not been given a Miranda warning does not bar admission of her statement into evidence.

23. What does it mean to “waive” my Miranda rights?

Suspects waive (give up) their Miranda rights by talking to police officers after having been advised that they have the right not to. To avoid disputes in court about whether Miranda warnings were given and waived, police officers often ask suspects who indicate a willingness to talk to sign waiver forms acknowledging that they’ve received and understood their Miranda rights, and that they want to talk to the police anyway.

24. Once I’ve waived my Miranda rights, is it possible to change my mind and invoke my right to silence?

Yes. Suspects can invoke their right to silence at any time, even if they have begun talking to the police. Of course, statements made before invoking the right to silence are admissible, so deciding to remain silent after previously answering questions may be the equivalent of locking the barn door after the horse has run away. To stop police questioning, a suspect merely has to say something like, “I don’t want to say anything else,” or, “I want to talk to a lawyer before we go any farther.” If the police continue to question a suspect who invokes Miranda, nothing the suspect says after indicating a desire to halt the interview is admissible in evidence.

25. What effect has the Miranda rule had? Do most suspects invoke their right to remain silent and to be represented by an attorney during police questioning?

When Miranda was decided, police and prosecutors predicted a dire effect on their ability to secure convictions. However, arrestees often ignore the Miranda warning and talk to police officers. The following psychological factors that police regularly use to their advantage explain why suspects often make “voluntary” confessions that they later regret:

• Suspects who are in custody are psychologically vulnerable. Many suspects are intimidated by jail conditions, and talk in order to please the jailers who are suddenly in control of their lives.
• Police often lead a suspect to believe that a confession or cooperation in naming other suspects will result in leniency. Although courts generally consider this to be improper police conduct (see, for example, United States v. Johnson, 6th Cir., U.S. Court of Appeals (2003)), the police will usually deny that they promised leniency, and the judge will usually believe them.
• Police use the “good cop–bad cop” routine. In this ploy, one police officer is aggressive and overbearing toward a suspect. A second officer is helpful and courteous. Suspects believe the second officer is on their side, and so they gratefully and voluntarily talk to the second officer.
• Many suspects talk voluntarily in the belief that only explicit confessions will be admissible in evidence. They are mistaken. Anything they say to the police, even if at the time it seems to be in their favor, is admissible in evidence.
• Police may make suspects feel that their situations are already hopeless. For example, police officers may tell a suspect he failed a lie detector test, that a codefendant confessed and incriminated the suspect, or that the police have a videotape of the suspect committing the crime. Even if the police have lied, the resulting confession is usually admissible in evidence.
• Taking advantage of a suspect's pangs of guilt, police officers may emphasize the harm that the suspect has caused to the victim, and stress that the suspect can begin to repay the victim by owning up to the misdeed. A resulting confession turns the suspect’s feeling of moral guilt into legal guilt.
• Police sometimes emphasize that a confession will speed things up. Many suspects, especially first-time offenders, want to put a criminal charge behind them as soon as possible. To them, a confession represents the shortest line between two points.
• Police officers tell suspects, “We’ll put what you say in our reports, so this is a chance to make sure that the district attorney hears your side of the story.” Then in an effort to minimize their guilt, suspects often furnish evidence that eventually helps convict them.

Case Example 1: Dee Nyal is arrested and charged with burglary. At the police station, Dee waives her Miranda rights and voluntarily tells the police that she is innocent, because she was at the movies at the time the burglary took place. At trial, the prosecutor wants to offer Dee’s statement to the police into evidence to show it was false, because the movie Dee said she watched was not playing the night of the burglary. Dee protests that what she said to the police shouldn’t be admissible because she didn’t make a confession; instead she said she wasn’t guilty.

Question: Is Dee’s statement to the police admissible in evidence?

Answer: Yes. Dee waived her Miranda rights, so the statement is admissible, regardless of whether she made the statement to help herself or to admit guilt.

Case Example 2: Len Scap is arrested for murder. The police give Len his Miranda warning, then tell him that he might as well confess because the police found Len’s fingerprints at the crime scene and because they have an eyewitness who can easily identify him. Feeling all is lost, Len confesses to the murder. It turns out that the police lied to Len—they had neither his fingerprints nor an eyewitness.

Question: Is Len’s confession admissible in evidence?

Answer: Very probably. Judges generally rule that confessions are voluntary even if they are obtained by the police through trickery. (See Frazier v. Cupp, U.S. Sup. Ct. 1969.)

26. If my boss questions me about drug use or my landlord asks me about illegal activities in my apartment, can my responses be used as evidence against me if they didn’t first give me a Miranda warning?

Yes. Miranda only applies to questioning by the police or other governmental officials.

27. Besides Miranda, are there other restrictions placed on the police when they seek information from an arrested person?

Yes. Confessions that are deemed to be involuntary are not allowed as evidence. Under this rule, the police are not allowed to use brutality, physical threats, or other means of intimidation to coerce suspects into confessing. If the police obtain information by any of these illegal means, the information is not admissible, whether or not they read the suspect his Miranda warning. In addition, under the fruit of the poisonous tree rule, any evidence that the police obtain as the result of the coerced confession would be equally inadmissible.

Case Example 1: Clark Kent is arrested for indecent exposure. After he is booked, the police read the Miranda rights to Clark. The police then proceed to question Clark over a 36-hour period, keeping him in solitary confinement when they are not questioning him and withholding almost all food and water. Clark finally agrees to talk to the police and confesses to the crime.

Question: Are Clark’s statements admissible in evidence?

Answer: No. Clark did not freely and voluntarily waive his Miranda rights, because the interrogation methods were highly coercive.

Case Example 2: Moe Money is charged with obtaining money by fraudulent means. Following the Miranda warning, Moe voluntarily agrees to talk to the police and denies any fraudulent conduct. The police then tell Moe that they will arrest his wife and bring her to the station for questioning. Moe tells the police that his wife is pregnant but very ill, and has been instructed by her doctor to remain in bed as much as possible to protect her health and that of the baby. The police tell Moe that’s his problem, they’re going to arrest his wife unless he confesses and “the health of your wife and your kid is up to you.”

Question: If Moe then confesses, is the confession admissible in evidence?

Answer: No. Moe’s confession was involuntary. This is especially true if the police lacked probable cause to arrest Moe’s wife and threatened to arrest her only to coerce Moe into talking. (See Rogers v. Richmond, U.S. Sup. Ct. 1961.)

28. How do intoxication or mental limitations affect the voluntariness of a confession?

Very little. Defendants often ask judges to rule that their confessions were involuntary on the grounds that at the time the defendants confessed they were drunk, were high on drugs, or had mental limitations. Unless the defendant was practically unconscious at the time of confessing, judges usually decide that confessions are voluntary—despite the existence of factors that strongly suggest an opposite conclusion. (See United States v. Curtis, 344 F.2d 1057 (2003).)

Case Example 1: Sarah Bellum is arrested for armed robbery, and confesses after receiving Miranda warnings. Defense evidence shows that Sarah is mentally retarded, with a mental age of nine. In addition, she suffers from attention deficit disorder and depression.

Question: Was her confession voluntary?

Answer: Probably. Judges usually rule that confessions by suspects with mental limitations are voluntary.

Case Example 2: Same case, except that this time Sarah’s evidence is that at the time of her confession, the police had just awakened her from a deep sleep produced by her having ingested three tranquilizers a few hours earlier. The police testify that Sarah was fully awake and lucid.

Question: Was her confession voluntary?

Answer: Yes. While the drugs may have impaired Sarah’s cognitive functions, she was not legally incapable of making a voluntary confession.

Case Example 3: Same case, except that this time Sarah’s evidence is that she confessed to armed robbery while in an ambulance on the way to the hospital. At the time she confessed, she was in pain from injuries she suffered when she was captured, she was under the effects of tranquilizers she had ingested just prior to the robbery and she passed out a number of times during the interrogation.

Question: Was her confession voluntary?

Answer: Probably not. Sarah’s physical condition was so impaired that she was legally incapable of confessing voluntarily.

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