Introduction

The overbearing police interrogation designed to wrench a confession from a quivering suspect is an enduring dramatic image. Though the image is largely a relic of the past, police officers do question individuals in a variety of circumstances. For example, aside from seeking a confession, police officers may question an arrestee to uncover information about additional suspects, or officers may simply seek information from people they have no intention of arresting. This chapter examines common situations in which police officers are likely to ask questions, and describes the typical legal consequences both of talking and of remaining silent.

Tip: Prosecutors can be counted on to use your words against you. Even a seemingly innocuous or innocent explanation may appear to link you to a crime when your words are recounted by a police officer. Your statements to a police officer may return to haunt you throughout your entire case, from the charges, to the amount of bail, to the trial itself. People who have even a remote suspicion that they may be accused of a crime should never talk to police officers before first talking to a lawyer.

Police Questioning of People Who Haven't Been Taken Into Custody

This section deals with police attempts to question you in situations in which you have not yet been placed in custody.

These commonly include:

• on-the-street, in-your-face questioning
• car stops for traffic violations
• investigatory visits to homes or offices, and
• telephone conversations.

(See Section II for police questioning after you have been taken into custody.)

1. Can a police officer stop me on the street and question me even if I have done nothing wrong?

Yes. Even if an officer has no reason to suspect that you have done anything wrong, the officer can approach you to ask questions and ask to search you or objects in your possession (such as a briefcase). So long as the officer doesn’t suggest that you are legally compelled to talk or agree to a search, the officer has done nothing wrong (U.S. v. Drayton, U.S. Sup. Ct. 2002). At the same time, a person is generally not required to answer a police officer’s questions or allow a police officer to conduct a search.

2. Is it a crime to refuse a police officer’s request for identification?

Possibly. Many states have “stop and identify” laws. Under these laws, if a police officer reasonably suspects that a person has engaged in criminal activity, the officer can detain the person and ask for identification. A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v. Nevada, U.S. Sup. Ct. 2004).

Also, laws typically require drivers who are stopped for speeding and similar infractions to provide identification when an officer requests it.

Case Example: Jones is standing outside his parked truck. Noticing that Jones fits the description of a man who took clothing from a nearby store about a half hour earlier, Officer Juarez asks Jones for identification and questions Jones about where he’s been for the last half hour. Jones refuses to say anything to the officer.

Question: Has Jones committed any crimes by refusing to answer?

Answer: Since Officer Juarez reasonably suspected that Jones might have stolen the clothing, Jones’s refusal to provide identification would violate a “stop and identify” law. However, Jones has a constitutional right under the Fifth Amendment to remain silent. Jones cannot be punished for refusing to answer the officer’s other questions.

3. Can I walk away from a police officer who is questioning me?

Unless a police officer has “probable cause” to make an arrest (see Chapter 3, Question 4), or a “reasonable suspicion” to conduct a “stop and frisk” (see Chapter 2, Section VI), a person has the legal right to walk away from a police officer. However, at the time of the encounter, there is no real way to tell what information the officer is using as a basis for her actions. In fact, an officer may have information that gives her a valid legal basis to make an arrest or to conduct a stop and frisk, even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview. Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question might be, “Officer, I’m in a hurry, and I’d prefer not to talk to you right now. You won’t try to stop me from leaving, right?” If the officer replies that you are not free to leave, you should remain at the scene and leave the issue of whether the officer had a legal basis for detaining you for the courts to determine at a later time.

4. If I start to answer a police officer’s questions, can I change my mind and stop the interview?

Yes. You can halt police questioning at any time merely by indicating your desire not to talk further.

5. A police officer told me that if I didn’t answer his questions I’d be arrested for loitering. Is that legal?

In certain circumstances, it may be. Laws in many states define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is only a problem if the officer has also observed the person to be loitering.

Case Example: Officer Icia Yu is dispatched to Upscale Meadows after a resident calls the police to complain that a woman has been walking back and forth along the streets for over an hour, with no apparent purpose. From a distance, the officer observes the woman for a few minutes, and sees her stopping occasionally to peer into residents’ back yards. Believing that she may be planning a burglary, Officer Yu confronts the woman, asks for identification and asks her to explain what she is doing in the neighborhood. The woman refuses to respond.

Question: Can Officer Yu arrest her?

Answer: Under loitering laws in effect in many states, yes. Officer Yu had reasonable grounds to believe that the woman posed a danger to the community. Since she didn’t identify herself or explain why she was in the neighborhood, the officer could arrest her. Had the woman responded to Officer Yu, the officer might not arrest her for loitering. However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property).

6. An officer pulled me over for suspicion of drunk driving and questioned me about where I’d been and what I’d had to drink. Can I be arrested for refusing to answer these questions?

No. An officer has the right to conduct a field sobriety test of a suspected drunk driver. But the driver has the right to refuse to answer questions. In such a situation, the validity of an arrest would depend solely on the person’s driving pattern and performance on the field sobriety tests. (See Chapter 24 for more on drunk driving and field sobriety tests.)

7. If I don’t have to answer questions, does this mean I can sue a police officer for trying to question me?

No. Even in the complete absence of probable cause to arrest or suspicion to conduct a stop and frisk, police officers have the same right as anyone else to approach people and try to talk to them. Of course, if the person refuses to talk, the officer must stop.

Case Example 1: Officer Stan Doff knocks on the front door of Dee Fensive’s home. When Dee answers the door, the officer says, “I’d like to ask you a few questions about a robbery that took place across the street a few minutes ago. Have you noticed any suspicious people hanging around the neighborhood lately?” Dee indicates that she does not want to talk and closes the door. Officer Doff then leaves.

Question: Has the officer violated Dee’s rights?

Answer: No. The officer has a right to try to question Dee. When Dee indicated that she did not want to talk, the officer ended the interview. The officer’s actions are legally proper.

Case Example 2: Martinez is arrested for assaulting Police Officer Haskell. Martinez is shot during the altercation, and very seriously injured. Therefore, Officer Haskell has Martinez taken to a hospital emergency room. A second police officer, Officer Chavez, questions Martinez while he is receiving medical treatment, and Martinez admits to Officer Chavez that before Officer Haskell shot him, he was trying to grab Officer Haskell’s gun. Officer Chavez should have but failed to advise Martinez of his Miranda rights before questioning him. (See Question 13.) However, Martinez is never charged with a crime and the statements he made to Officer Chavez are never offered against him in court.

Question: Can Martinez sue Officer Chavez for violating his civil rights and receive money damages?

Answer: No. Because Martinez’s statements to Officer Chavez were never offered into evidence against Martinez in a criminal trial, Officer Chavez did not violate Martinez’s constitutional rights. In other words, suspects cannot recover money from police officers simply because the officers’ questioning violates Miranda. On the other hand, suspects’ civil rights are violated and suspects can sue and receive money damages when police officers use “egregious” questioning methods, such as torture or other methods of brutality (Chavez v. Martinez, U.S. Sup. Ct. 2003).

8. Doesn’t a police officer always have to read me my “Miranda rights” before questioning me?

No. A “Miranda warning” (see Section II) is required only if a suspect is in custody and the police intend to interrogate the suspect. In other words, both “custody” and “interrogation” have to occur for Miranda rights to kick in. One upshot is that a statement by a person who is not in custody, or a statement made voluntarily rather than in response to police interrogation, is admissible in evidence at trial even though no Miranda warning was given.

Case Example: Officer Dave Bouncer is investigating a barroom brawl. The bartender indicates that a patron named Bob Sawyer might be able to identify the instigator of the brawl. When Officer Bouncer interviews Bob, Bob makes statements implicating himself in the brawl. Officer Bouncer did not read Bob his Miranda rights.

Question: If Bob is charged with a crime concerning the brawl, will Bob’s statements to Officer Bouncer be admissible as evidence?

Answer: Yes. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, Miranda warnings were not required as a condition of admissibility.

9. A police officer wants to question me about a crime I know I didn’t commit. Can I harm my own interests by talking?

Quite possibly. It is often perfectly sensible and socially desirable for innocent people to cooperate in a police investigation. However, they should be aware of the risks. Here are several important questions to ask yourself before agreeing to a police interview:

a. Even if I haven’t done anything wrong, how sure am I about the events that the police officer is asking me about?

Unfortunately, people who haven’t done anything wrong are sometimes mistakenly accused of crimes. Equally unfortunately, these same innocent people may unwittingly add to the evidence against them if they talk to police officers before they are prepared to do so. Individuals who are unprepared to talk about certain events may become confused and answer incorrectly, especially when confronted by police officers. These individuals may then want to change what they’ve said to “set the record straight.” But the police (or a judge or jury) may regard the change of story as itself suspicious and indicative of guilt. Thus, even individuals who want to cooperate with police officers ought to make sure that they have a clear recollection of the events about which the officers are asking. Individuals who are unsure of what to do should at least ask the officer to return at a later time.

b. Might the police learn about my unrelated crimes I have committed as a result of the interview?

People may talk to police officers because they are confident that they can demonstrate that they are not involved in the crimes that the officers are investigating. However, they may unwittingly disclose information implicating themselves in other criminal activity.

Case Example: While voluntarily answering a police officer’s questions and denying any involvement in a burglary that took place on May 15, Sol Itary nervously mentions that he was using illegal drugs with someone else at another location.

Question: If Itary is charged with possession of illegal drugs based on other evidence, can the prosecution offer Itary’s statement to the officer into evidence?

Answer: Yes. Itary voluntarily spoke to the officer, so the statement is admissible.

c. Will previous contacts I’ve had with the police possibly lead them to distort what I say?

People who think that they may be police targets (perhaps because of past criminal records) should be especially careful about voluntarily talking to a police officer. Police officers sometimes distort people’s oral statements, either because the officers are lying or because they have heard only what they want to hear. By repeating in court only part of a person’s statement or changing a few words around, a police officer may make an innocent remark seem incriminating.

Case Example: A humorous example of police officer distortion occurred in the 1992 comedy film, “My Cousin Vinny.” In the film, a police officer questions a college student who has been arrested for killing a grocery store clerk. The stunned student, who at first thought that he had been arrested for shoplifting a can of tuna fish, repeats in a dazed, questioning voice, “I shot the clerk?” In court, however, the police officer makes it sound as if the student confessed to the murder by testifying that the student asserted, “I shot the clerk.” In real life, of course, police distortion is no laughing matter.

d. How knowledgeable am I about the law governing the events about which I’m being questioned?

People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior does not amount to criminal conduct. They may think they are explaining their innocence, while the police officers are using their explanation to amass evidence of a crime.

Case Example: Moe gets into a fist fight with Curly, which results in a severe cut to Curly’s head. A police officer contacts Moe, seeking his version of the fight. Thinking that he acted in self-defense, Moe fully describes his version of events. However, as the police officer interprets Moe’s story, Moe used excessive force, and the officer arrests Moe for aggravated assault. Had Moe more clearly understood the law, he might not have talked to the police officer.

10. Can it ever help me to answer a police officer’s questions?

Yes. Police officers may be as interested in clearing the innocent as in convicting the guilty. People can often clear their names as well as help the police find the real perpetrators by answering a few straightforward questions. For example, assume that Wally, a possible suspect, can demonstrate that “I was at dinner with Andre” at the moment a crime was committed. Wally both removes himself as a suspect and enables the police to concentrate their efforts elsewhere.

And legal rights aside, the truth on the street is that people often can make life easier for themselves by cooperating with police officers—so long as they don’t have a good reason not to. “Contempt of cop” has resulted in the arrest and even physical injury of more than one innocent person. When innocent people who are pulled over or questioned by police officers stand on their rights too forcefully, events can sometimes get out of control rather quickly.

11. A police officer wants to talk to me about a crime that I took part in. Is it ever a good idea to try to talk my way out of it?

Usually, no. The golden rule of defense is that suspects who think that they may be implicated in a crime should keep their mouths tightly shut. Suspects all too frequently unwittingly reveal information that later can be used as evidence of guilt. The right to not incriminate oneself, guaranteed by the Fifth Amendment to the U.S. Constitution, is especially powerful in this situation, and a suspect should politely decline to answer questions, at least until consulting with an attorney.

12. A police officer wants to ask me about a crime that a friend or relative of mine committed. What do I risk by providing false information?

A lot. When people lie to the police or otherwise intentionally assist a known criminal to avoid arrest, they may be charged as “accessories after the fact.” They can also be charged with obstruction of justice. Obviously, the decision as to whether to furnish information leading to the arrest of a relative or close friend is a personal one. However, a person who chooses not to do so should simply decline to answer an officer’s questions rather than lie. Rarely, if ever, would an individual who simply declines to give information to a police officer qualify as an accessory after the fact.

Case Example: Cain comes running into his brother Abel’s house, and tells Abel that he, Cain, just robbed a market and that the police might be on his tail. A few minutes later, a police officer knocks on Abel’s door and asks him if Cain is in the house. Abel responds, “No, he left town permanently to go back east weeks ago.”

Question: Is Abel subject to criminal prosecution?

Answer: Yes, Abel might be prosecuted as an accessory after the fact. By affirmatively misleading the police, he has aided Cain in avoiding arrest. To protect himself while not giving up his brother, Abel might have said, “I’m sorry, I can’t talk to you about that.” (Admittedly, the police might view such a response as a red flag that Cain is close at hand. Abel must rely on his own balancing of personal risk, private loyalty, and public duty.)

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.