Chapter 1
Talking to the Police

Police Questioning of People Who Haven’t Been Taken Into Custody           13

Can a police officer stop me on the street and question me
 even if I have done nothing wrong?......................................... 13

Is it a crime to refuse a police officer’s request for identification?. 14

Can I walk away from a police officer who is questioning me?...... 15

If I start to answer a police officer’s questions, can I change my
mind and stop the interview?.................................................... 15

A police officer told me that if I didn’t answer his questions
I’d be arrested for loitering. Is that legal?................................. 15

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?........ 16

If I don’t have to answer questions, does this mean I can sue
a police officer for trying to question me?................................. 16

Doesn’t a police officer always have to read me my “Miranda rights”
before questioning me?........................................................... 17

Can I harm my interests by talking to a police officer about a crime
I know I didn’t commit?............................................................ 17

Even if I haven’t done anything wrong, how sure am I about the
events the police officer is asking me about?........................... 17

Might the police learn about any unrelated crimes I have committed
as a result of the interview?..................................................... 18

Will previous contacts I’ve had with the police possibly lead
them to distort what I say?....................................................... 18

How knowledgeable am I about the law governing the events
about which I’m being questioned?........................................... 19

Can it ever help me to answer a police officer’s questions?.......... 19

If a police officer wants to talk to me about a crime that I took
part in, should I try to talk my way out of it?............................. 20

Do I have anything to lose by providing false information to a police
officer about a crime that a friend or relative of mine committed? 20

Police Questioning of Arrestees..................................................... 21

What is a “Miranda warning”?..................................................... 21

What happens if a suspect who is in custody isn’t given a Miranda
warning and answers a police officer’s questions?.................... 22

Can the government ever use statements against me that were
obtained in violation of Miranda?.............................................. 22

Are there circumstances in which a statement by a suspect can’t
be used against that suspect even if a Miranda warning is given? 24

Will the charges against me be automatically dismissed if the police
questioned me without advising me of my Miranda rights?........ 24

After I’m arrested, is it ever a good idea to talk to the police?....... 24

How do I assert my right to remain silent or request a lawyer if
I am being questioned by the police?....................................... 24

If the police question me before arresting me, does the Miranda rule apply?  25

After charges have been filed and a lawyer has been appointed to represent
me, can police officers ever question me when my lawyer is not present?  26

Do the police have to give me a Miranda warning if I’m stopped for
a traffic violation?.................................................................... 27

Are statements that I make voluntarily before I’m questioned admissible
in evidence?............................................................................ 27

What does it mean to “waive” my Miranda rights?........................ 27

Once I assert my Miranda rights, can police officers interrogate me at
a later date?............................................................................ 28

What is the “booking question exception” to Miranda?................. 28

Once I’ve waived my Miranda rights, can I change my mind and invoke
my rights to silence and to talk to a lawyer?............................. 29

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?....................................................... 29

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?.................................... 32

If the police plant an informant in my jail cell, are statements that
I make to the informant admissible in evidence?....................... 32

Besides Miranda, are there other restrictions placed on the police
when they seek information from an arrested person?............... 32

How do intoxication or mental limitations affect the voluntariness
of a confession?...................................................................... 34

 

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 people 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.

 

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 without 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.

Whether a person is “in custody” when questioned by a police officer depends on all the circumstances, not just the physical space in which questioning takes place. Even if police officers question a prisoner in a prison conference room, the prisoner is not “in custody” if the officers advise him that he is free to stop the questioning and return to his prison cell (Howes v. Fields, U.S. Sup. Ct. 2012).

(See “Police Questioning of Arrestees,” below, for information on police questioning after you have been taken into custody.)

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 purse or briefcase). As 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, you are generally not required to answer a police officer’s questions or allow a police officer to search your person or your belongings.

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 some­one has engaged in criminal activity, the officer can detain that 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.

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. Because 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, so he cannot be punished for refusing to answer the officer’s other questions.

 

Do You Have to Report a Crime to the Police?

 

 

Generally, neither a crime victim nor a witness who sees a crime take place has a legal obligation to report the crime to the police. Though a crime is an offense against the public as a whole, reporting is usually a matter for people’s individual consciences and circumstances. However, you should be aware of the following:

Laws in many states require people in certain positions to report particular types of crimes. For example, teachers, social workers, and medical professionals may have to report suspected child abuse.

You may be guilty of a crime as an “accessory after the fact” if you take active steps to conceal either the crime or the perpetrator. For more information about this, see “Derivative Criminal Responsibility,” in Chapter 12.

A few states, including Ohio, Mas­sachusetts, and Washington, have enacted laws that make it a crime to see a felony occur yet fail to report it. Few prosecutions have taken place under such laws, however.

For background information about mandatory reporting laws, see Eugene Volokh, “Duties to Rescue and the Anti-Cooperative Effects of Law,” 88 Georgetown Law Journal 105 (1999).

 

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) or a “reasonable suspicion” to conduct a “stop and frisk” (see Chapter 2), 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 know what information the officer is relying on. In fact, an officer may have information that provides a valid legal basis to make an arrest or to conduct a stop and frisk, even if the person stopped is actually innocent of any wrongdoing. In that situation, an officer may forcibly detain an innocent person 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 should first 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 the necessary legal basis to detain you for the courts to determine at a later time.

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 simply by indicating your desire not to talk further.

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 someone 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 loitering.

The Questionable Legality of Loitering Laws

 

 

Many people argue that police officers use loitering laws to clear neighborhoods of “undesirables.” Some courts have held loitering laws to be unconstitutional on the grounds that they are enforced discriminatorily against poor people and members of ethnic minority groups and that they unduly restrict people’s rights to travel on public streets. However, the safest place to challenge the validity of a loitering law is in the courts, not on the streets to a police officer’s face.

 

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 and asks her to provide identification and explain what she is doing in the neighborhood. The woman refuses to respond. Under the loitering laws of many states, Officer Yu can arrest the woman for loitering. The officer had a reasonable basis to believe that the woman posed a danger to the community. Because 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).

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 you have the right to refuse to answer questions. In such a situation, the validity of an arrest would depend solely on your driving pattern and performance on the field sobriety tests. (See Chapter 24 for more on drunk driving and field sobriety tests.)

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 you are not in custody and you refuse to talk, the officer must stop questioning you.

Example: 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. The officer has not violated Dee’s rights. 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.

Example: Martinez is arrested for assaulting Police Officer Haskell. Martinez is shot during the alter­cation, and very seriously injured, so Officer Haskell has Martinez taken to a hospital emergency room. A second police officer, Officer Chavez, questions Martinez while he is receiving medical treatment. Martinez admits to Officer Chavez that before Officer Haskell shot him, Martinez was trying to grab Officer Haskell’s gun. Officer Chavez should have but failed to advise Martinez of his Miranda rights before questioning him (as explained in “Police Question­ing of Arrestees,” below). However, Martinez is never charged with a crime, and the statements he made to Officer Chavez are never offered against him in court. Martinez has no basis for filing a lawsuit for damages against Officer Chavez because Martinez’s statements to Officer Chavez were never offered into evidence against Martinez in a criminal trial. 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).

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

No. A “Miranda warning” (see “Police Questioning of Arrestees,” below) 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 of this require­ment 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 if no Miranda warning was given.

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. Nevertheless, if Bob is charged with a crime concerning the brawl,  Bob’s statements to Officer Bouncer will be admissible as evidence. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, the evidence may be admitted even though Officer Bouncer never gave Bob any Miranda warnings.

Can I harm my interests by talking to a police officer about a crime I know I didn’t commit?

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:

Even if I haven’t done anything wrong, how sure am I about the events 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. An innocent person who is unprepared to talk about certain events may become confused and answer incorrectly, especially when confronted by police officers. Upon realizing the mistake, the person may then want to provide the correct information and “set the record straight.” But the police (or a judge or jury) may regard the change of story in itself as suspicious and indicative of guilt. Thus, even if you want to cooperate with police officers, you ought to first make sure that you have a clear recollection of the events about which the officers are asking. If you are unsure what to do, at least ask the officer to return at a later time.

Delay the Interview

People who are uncertain about whether to talk to a police officer needn’t feel trapped into giving an immediate “yes” or “no.” Being confronted by a police officer tends to make many people nervous and anxious, which renders them unable to give completely accurate answers. A good alternative is to delay the interview by saying something such as, “This is a bad time,” or, “I didn’t expect this so I’m a bit muddled now, please come back another time.” Among other things, delay provides an opportunity to consult with a lawyer, and perhaps to have the lawyer present during the interview, if the person ultimately decides to talk.

 

Might the police learn about any 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 they are not involved in the crimes that the officers are investigating. However, they may unwittingly disclose information implicating themselves in other criminal activity.

Example: While voluntarily answer­ing a police officer’s questions and denying any involvement in a burglary, Sol Itary nervously mentions that he was using illegal drugs with someone else at another location when the burglary took place. If Sol is charged with possession of illegal drugs based on other evidence, the prosecution can offer Sol’s statement to the officer into evidence because Sol voluntarily spoke to the officer.

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 they have a criminal record) 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.

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 officer distortion is no laughing matter.

Recording Statements Made to Police Officers

People who want to cooperate with police officers but fear that the police will distort their statements should insist that the police officers tape the conversation or prepare a written summary of it for the person to sign. The tape or summary minimizes a police officer’s opportunity to distort at a later time. But there is a potential downside to having the statement recorded. Once the words are on tape, a defendant will have to live with them if the case goes to trial, rather than argue that the police got it wrong.

 

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.

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.

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—as 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.

Lie Detector Tests

Police officers sometimes ask suspects to take lie detector tests to “clear their names.” In general, suspects should refuse to take lie detector tests. Police sometimes use the tests as tools for obtaining confessions, falsely telling suspects that because they flunked they might as well confess. Moreover, lie detector tests are notoriously inaccurate. Innocent people often test guilty. Though lie detector test results are not usually admis­sible in court, even a false “guilty” result may prompt the police to make an arrest. (For more on lie detector tests, see Chapter 18.)

 

If a police officer wants to talk to me about a crime that I took part in, should I 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.

Do I have anything to lose by providing false information to a police officer about a crime that a friend or relative of mine committed?

Yes. 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, whether to furnish information leading to the arrest of a relative or close friend is a personal decision. 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 someone who simply declines to give information to a police officer qualify as an accessory after the fact.

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.” Abel is subject to criminal prosecution 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 suspects who are in custody. It explains the Miranda rule and the circumstances when it does and does not apply.

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 evidence of guilt. An interrogation may have other purposes as well, such as developing leads to additional suspects.

By voluntarily 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.

Example: Cathy Yi is arrested for assault. At the police station, Officer Rozmus seeks to question Yi about the events leading up to the assault. Yi does not have to answer the officer’s questions. She has a constitutional right to remain silent. If Officer Rozmus fails to advise Yi of the Miranda rights before questioning begins, then nothing Yi says is admissible in evidence.

The Miranda Case

Ernesto Miranda was arrested for kidnapping and raping a young woman in Arizona. Ten days after the rape took place, the victim picked Miranda out of a lineup and identified him as her attacker. The police took Miranda into an interrogation room and questioned him for two hours. Eventually, Miranda broke down and confessed in writing to committing the rape. The police did not physically abuse Miranda or trick him into confessing. At trial, the prosecution offered Miranda’s confession into evidence, and he was convicted. On appeal, the U.S. Supreme Court overturned the conviction and granted Miranda a new trial. The Supreme Court decided that the confession should not have been admitted into evidence at Miranda’s trial because the police had not advised Miranda of his right to remain silent and to consult with counsel. Miranda was convicted again after a second trial, even though the prosecution was not able to offer Miranda’s confession into evidence.

 

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 who is in custody without giving the suspect the Miranda warnings, 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 said is required by the Constitution (Dickerson v. U.S., U.S. Sup. Ct. 2000).

Can the government ever use statements against me that were obtained in violation of Miranda?

Yes, assuming that the only reason the state­ment is inadmissible is the Miranda violation and not other possible forms of police misconduct such as physical coercion.

If a defendant gives testimony at trial that conflicts with a statement made to the police, the prosecutor can offer a statement elicited in violation of Miranda into evidence to impeach (attack) the defendant’s credibility. (Kansas v. Ventris, U.S. Sup. Ct. 2009.) Similarly, rules in many jurisdictions allow prosecutors to offer statements obtained in violation of Miranda 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. 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 actually found 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 these “fruits” of their improperly obtained statements may well be admissible in evidence.

Example: Mal Addy is arrested for assault with a deadly weapon. The police question Addy without giving him a 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. 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.

Example: 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 was carrying when he was arrested. The illegal drugs are admissible in evidence against Addy despite the Miranda violation, because the police would have inevitably found the drugs when they inventoried the contents of the backpack during the booking process.

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, by 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).

Will the charges against me be automatically 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

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 improperly obtained statements, a Miranda violation will not cause dismissal of the case.

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.

How do I assert my right to remain silent or request a lawyer 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.

Even though they don’t have to mention the Miranda case or use a particular phrase to invoke their rights, suspects who want to prevent police questioning have to speak up and assert their desire to remain silent. If suspects fail to tell the police that they want to remain silent or talk to a lawyer, the police have the right to question them. (Berghuis v. Thompkins, U.S. Sup. Ct. 2010.) (The dissenting judges in Berghuis pointed out the irony of a rule that requires defendants to speak up to claim their right to remain silent.)

Example: Police officers arrest Sy Lentz for murder and advise him of his Miranda rights.  When Sy remains silent, the officers question him. After three hours of questioning, Sy answers “Yes” to an officer’s question about whether he had prayed for forgiveness for shooting the victim. The prosecutor can offer the question and Sy’s response into evidence at trial to prove that Sy is guilty of murder. Sy did not demand a lawyer or tell the police that he refused to talk to them. Sy’s silence allowed the police to continue to question him, and his eventual answer is admissible at trial.

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.

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. Officer Altie need not precede the questioning with the Miranda warning. 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 do so. Because Officer Altie was engaged in general on-the-scene questioning, he did not have to give the Miranda warning.

Police Officers May Mischaracterize a Custodial Situation in Court

Police officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning. Thus, police officers have an incentive not to give the warning. One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they’re through with the questioning. If an officer can convince a judge that the officer was engaged only in general questioning and would have let the suspect walk away had the suspect chosen to do so, anything the suspect says to the officer can be used against the suspect at trial despite the lack of Miranda warnings.

 

After charges have been filed and a lawyer has been appointed to represent me, can police officers ever question me when my lawyer is not present?

Yes. In order to claim the benefits of Miranda, defendants have to tell police officers that they do not want to speak to them or that they want to have their lawyer present before talking with the police. By itself, the fact that a judge has appointed a lawyer to represent a defendant does not prevent the police from questioning the defendant. (Montejo v. Louisiana, U.S. Sup. Ct. 2009.)

Example: Montejo is charged with murder. An arraignment judge appoints a lawyer to represent Montejo. Later, police officers visit Montejo in jail and advise Montejo of his Miranda rights. Montejo doesn’t invoke his right to remain silent and doesn’t demand that his lawyer be present for questioning. Instead, Montejo cooperates with the police and writes a letter admitting to the killing. The prosecutor can introduce the letter into evidence to prove that Montejo committed the murder.

Example: In the same scenario, assume that Montejo had told the police that he wouldn’t talk to them unless his lawyer was present. However, the police refused to take “No” for an answer, and kept badgering Montejo until he finally agreed to talk to them. Montejo then wrote a letter admitting to the killing. In this situation, the prosecutor could not introduce the letter into evidence to prove that Montejo committed the murder. Once Montejo invoked his Miranda rights, the police had no right to continue to talk to him.

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

No, as 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.

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 recent, nearby burglary. Officer Starsky does not give Hutch the Miranda warning. As a result, any statements that Hutch makes to the officer about his whereabouts at the time of the burglary are not admissible in evidence.  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 the Miranda warning, Hutch’s statements are inadmissible.

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.

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. Ina’s statements are admissible in evidence. Ina spoke voluntarily; the officer did not question her. Thus, the fact that Ina had not been given a Miranda warning does not bar admission of her statement into evidence.

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.

But police officers do not have to obtain either oral or written waivers from suspects after advising them of their Miranda rights. Police officers can continue to question suspects who fail to assert their right to remain silent or to have a lawyer present. Judges can infer a waiver of Miranda rights when suspects fail to assert them.

Example: Police officers advise robbery suspect Lou Slipps of his Miranda rights. When Lou remains silent, the officers proceed to question him. They tell him that the evidence against him is already very strong, and that the best thing he can do to help himself is confess. After about 90 minutes of interrogation, Lou tells the officers that he didn’t mean to injure the robbery victim so badly. Lou’s statement is admissible in evidence. Because Lou never asserted his Miranda rights, he waived them and allowed the police to continue interrogating him.

Once I assert my Miranda rights, can police officers interrogate me at a later date?

Yes. Remember the old aphorism, “If at first you don’t succeed, try, try again?” In the context of police interrogations, the aphorism means that police officers can sometimes question suspects who have previously invoked their Miranda rights. As long as they wait at least 14 days, police officers can give a suspect a new set of Miranda warnings and hope that this time around the suspect will talk to them. (Maryland v. Shatzer, U.S. Sup. Ct. 2010.)

Example: Police officers advise robbery suspect Lou Slipps of his Miranda rights. When Lou insists on talking to a lawyer before talking to the police, the officers stop talking to him and return him to his jail cell. Eighteen days later, the police officers bring Lou from his cell to an interrogation room, and again read Lou his Miranda rights. This time Lou agrees to talk to them, and he states that he didn’t mean to injure the robbery victim so badly. Lou’s statement is admissible in evidence. Because the police officers waited at least two weeks after Lou first asserted his Miranda rights to question Lou again, his agreement to talk to them was valid and what he said is admissible against him in court.

What is the “booking question exception” to Miranda?

When suspects are booked into jail, a jailer (often called a booking officer) typically asks them routine questions about their health and outside relationships. To protect the safety of jailers and inmates alike, suspects with communicable illnesses or gang affiliations may need to be housed in special sections of a jail. Booking questioning does not constitute an interrogation, and a booking officer does not have to give Miranda warnings to suspects. As a result, incriminating statements that a suspect makes in response to routine booking questioning is likely to be admissible in evidence under the exception established in Pennsylvania v. Muniz (U.S. Sup. Ct. 1990).

EXAMPLE: Following routine booking practice, Officer Booker asks a suspect arrested for carjacking whether he is affiliated with any gangs. The suspect states that he is a member of the 823 Coyotes. If the suspect’s membership in the gang is relevant to his guilt, the prosecutor may call Booker to testify to the suspect’s statement, even though Booker did not give Miranda warnings to the suspect before questioning him.

Once I’ve waived my Miranda rights, can I change my mind and invoke my rights to silence and to talk to a lawyer?

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 further.” 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.

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. (In a 1998 book about Miranda, Professor Richard Leo estimates that at least 80% of suspects waive their Miranda rights and voluntarily talk to the police.) 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.

Even if a suspect remains silent, the prosecution can sometimes use that silence against the suspect at trial. Assume that a suspect who remained silent after arrest testifies, in essence, “I didn’t do it.” The prosecution may be able to attack the suspect’s credibility (believability) by having the arresting officer testify to the suspect’s silence following arrest. The prosecution’s argument would be, “If the suspect really didn’t do it, why didn’t the suspect immediately say that to the arresting officer?” This tactic can only be used, however, if the defendant takes the stand.

How the Police Can Benefit From Delayed Miranda Warnings

Crafty police officers may intentionally delay giving Miranda warnings to suspects following an arrest for at least two reasons:

If they don’t question the suspect, police officers don’t have to give Miranda warnings. In the absence of the warnings, some suspects will blurt out voluntary statements that the prosecution can then offer into evidence at trial. For example, instead of immediately interrogating a suspect, a police officer may reveal the evidence that the officer has thus far gathered from other sources. Figuring that there’s nothing to be gained from silence, the suspect may indicate a willingness to confess. The officer can then advise the suspect of his Miranda  rights, making the subsequent confession admissible in

evidence against the defendant at trial (U.S. v. Gonzalez-Lauzan, 11th Cir. 2006).

Even if a suspect remains silent, the prosecution can sometimes use that silence against the suspect at trial. Assume that a suspect who remained silent after arrest testifies in essence that, “I didn’t do it.” The prosecution may be able to attack the suspect’s credibility (believability) by having the arresting officer testify to the suspect’s silence following arrest. The prosecution’s argument would be, “If the suspect really didn’t do it, why didn’t the suspect immediately say that to the arresting officer?” This tactic can only be used, however, if the defendant takes the stand.

 

Police use the “good cop–bad cop” routine. Suspects believe the good cop is on their side, and so they gratefully and voluntarily talk to that 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 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 that 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 lied, the 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 quickly. To them, a confession represents the shortest line between two points.

Police officers tell suspects, “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.

When two or more suspects commit a crime, officers sometimes extract confessions by falsely telling some suspects that the police regard them as witnesses rather than culprits.

Empty Promises

Police officers’ promises of leniency are usually empty. Police officers may recommend a light sentence, but at the end of the day it’s prosecutors and judges who normally determine punishment, based on statutory requirements and political expediency.

 

Example: Dee Nyal is arrested and charged with burglary. At the police station, Dee waives her Miranda rights and voluntarily tells the police that she was at the movies when 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 on 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. However, because Dee waived her Miranda rights, the statement is admissible, regardless of whether she made the statement to help herself or to admit guilt.

Example: 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 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. Len’s confession is probably admissible in evidence. Judges generally rule that confessions are voluntary even if they are obtained by the police through trickery. (Frazier v. Cupp, U.S. Sup. Ct. 1969.)

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.

If the police plant an informant in my jail cell, are statements that I make to the informant admissible in evidence?

Yes, but only for impeachment. Planting an informant in jails violates the suspects’ right to counsel. But if suspects testify at trial and contradict what they’ve said to an informant, prosecutors can offer the contradictory statements into evidence. Allowing impeachment in these circumstances promotes the integrity of the trial process. (Kansas v. Ventris, U.S. Sup. Ct. 2009.)

Example: Ventris is in jail, charged with murder. Hoping to develop additional evidence against Ventris, the police place an undercover informant in his jail cell. The informant is prepared to testify that Ventris admitted committing the murder. At trial, however, Ventris testifies that his girlfriend committed the murder. The prosecutor calls the informant to testify to Ventris’s admission that he was the murderer. Because Ventris’s trial testimony contradicted his jailhouse statement to the informant, the prosecution can offer the statement into evidence to impeach Ventris’s credibility.

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.

Private Individuals May Sometimes Be Police Agents for Purposes of Miranda

Courts sometimes hold private individuals to the same Miranda standards as police officers if the individuals act in concert with the police. For example, assume that the police arrest Rose Ettastone for embezzlement