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Introduction: A Walk-Through of the Case of State v. Andrea Davidson, a Fictional Robbery Prosecution

1. Talking to the Police

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

2. Search and Seizure

• The Constitutional Background
• Search Warrants
• Exceptions to the Search Warrant Requirement
• Consent Searches
• The Plain View Doctrine
• Searches Incident to Arrest
• “Stop and Frisk” Searches
• Searches of Cars and Occupants
• Searches or Entries Under Emergency (Exigent) Circumstances
• Miscellaneous Warrantless Searches

3. Arrest: When It Happens, What It Means

• General Arrest Principles
• Arrest Warrants
• Warrantless Arrests
• Use of Force When Making Arrests
• Citizens’ Arrests

4. Eyewitness Identification: Psychology and Procedures

• An Overview of Eyewitness Identification Procedures
• The Psychology of Eyewitness Identification
• Lineups
• Showups
• Photo (Mug Shot) Identifications
• Motions to Suppress Identifications

5. Booking and Bail: Checking In and Out of Jail

• The Booking Process
• Arranging for Bail
• Own Recognizance Release (Release O.R.)

6. From Suspect to Defendant

• Crime and Criminal Cases
• To Charge or Not to Charge, That Is the Question
• The Mechanics of Charging
• Grand Juries
• Diversion

7. Criminal Defense Lawyers

• Should a Defendant Have a Lawyer?
• Court-Appointed Defense Attorneys
• Private Defense Attorneys
• Self-Representation

8. Understanding the Attorney-Client Relationship in a Criminal Case

• Confidentiality
• Client-Centered Decision-Making
• Keeping Clients “In the Know”
• Representing Guilty Defendants
• Competent Clients

9. A Walk Through Criminal Court

• The Courthouse
• The Courtroom
• The Courtroom Players
• Courtroom Behavior

10. Arraignment

• Arraignment Basics
• Self-Representation at Arraignment

11. Developing the Defense Strategy

• Overview
• How the Defendant’s Version of Events May Limit Defense Strategies
• When Attorneys Ignore a Defendant’s Version of Events
• The Importance of Honesty in Developing a Defense Strategy

12. Criminal Laws and Their Language

• Mens Rea
• The Meaning of Frequently Used Legal Language
• Derivative Criminal Responsibility
• Murder and Manslaughter
• Sexual Violence
• Assault and Battery
• Motor Vehicle Crimes
• Drug Offenses
• Arson
• Burglary
• Robbery
• Theft
• Hate Crimes
• Human Trafficking
• White-Collar Crimes

13. Common Defenses to Criminal Charges

• Prosecutor’s Failure to Prove Guilt
• “Partial” Defenses
• Self-Defense
• Alibi
• Insanity
• Duress
• Necessity
• Intoxication (Under the Influence of Drugs or Alcohol)
• Entrapment
• Jury Nullification

14. Discovery: Exchanging Information With the Prosecution

• Modern Discovery Policy
• Discovery of Information Helpful to the Defense
• Discovery of Harmful Information
• Reciprocal Discovery

15. Investigating the Facts

• Interviewing Prosecution Witnesses
• Finding and Interviewing Defense Witnesses

16. Preliminary Hearings

• An Overview of Preliminary Hearings
• Defense Rights During Preliminary Hearings
• Common Defense and Prosecution Strategies

17.  Fundamental Trial Rights of the Defense

• The Defendant’s Right to Due Process of Law
• The Prosecution’s Burden of Proof
• The Defendant’s Right to Remain Silent
• The Defendant’s Right to Confront Witnesses
• The Defendant’s (and the Media’s) Right to a Public Trial
• A Defendant’s Right to a Jury Trial
• A Defendant’s Right to Counsel
• A Defendant’s Right to a Speedy Trial
• The Defendant’s Right Not to Be Placed in Double Jeopardy

18. Basic Evidence Rules in Criminal Trials

• Overview
• Rules Regulating the Content of Testimony
• Rules Regulating the Manner of Testimony
• Expert Witnesses, Scientific Evidence, and Specialized Knowledge
• Privileged (Confidential) Information

19. Motions and Their Role in Criminal Cases

• Basic Procedures
• Pretrial Motions
• Motions During Trial
• Post-Trial Motions

20. Plea Bargains: How Most Criminal Cases End

• Plea Bargaining—Terminology and Timing
• The Pros and Cons of Plea Bargains
• The Plea Bargaining Process
• The Strategy of Negotiating Plea Bargains

21. The Trial Process

• Summary of the Trial Process
• Choosing a Judge or Jury Trial
• Jury Voir Dire
• Motions in Limine
• Opening Statements
• Prosecution’s Case-in-Chief
• Direct Examination of Witnesses
• Cross-Examination of Witnesses
• Defense Motion to Dismiss
• Defendant’s Case-in-Chief
• Closing Argument
• Instructing the Jury
• Jury Deliberations and Verdict

22. Sentencing

• Overview of Sentencing
• Sentencing Procedures
• Sentence Options
• The Death Penalty

23. Appeals and Writs

• The Appeal Process
• Writs

24. Victims and Their Rights

• Victims and the Criminal Justice System
• Pretrial Processes
• The Trial-and-Sentencing Process
• Post-Trial Processes

25. The System at Work: DUI Laws and Processes

• DUI (Driving Under the Influence)
• DUI Case Examples

26. Juvenile Courts and Procedures

• A Brief History of U.S. Juvenile Courts
• Juvenile Court Jurisdiction
• Deciding Whether to File Charges
• The Right to Counsel and Other Constitutional Rights
• Trying Juveniles as Adults
• Sentencing (Disposition) Options
• Sealing Juvenile Court Records

27. Prison Rules

• A System of Limited Rights
• Legal Resources for Prisoners and Their Families
• Parole
• Pardons

Glossary

Index

Chapter 1

Talking to the Police

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 conduct potentially adversarial questioning in a variety of circumstances. This chapter discusses situations in which people risk incriminating themselves by responding to police officers’ questions.

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Prosecutors can be counted on to use suspects’ words against them. Even a seemingly innocuous or innocent explanation may appear to link a suspect to a crime when the words are recounted by a police officer. People who have even a remote suspicion that they may be accused of a crime should never talk to a police officer without first talking to a lawyer. To make sure that a prosecutor can’t claim that silence in response to a police officer’s questions is evidence of guilt, a person may say something like, “I don’t want to discuss this and I am exercising my right to remain silent.”

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

This section deals with police attempts to question people who aren’t in custody.

These situations commonly include:

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

Can police officers detain and question people without justification?

No. In the absence of legal justification, police officers can’t detain people in order to question or search them. However, so long as an officer doesn’t detain a person against the person’s will without justification, the officer does nothing wrong by seeking information. (U.S. v. Drayton, U.S. Sup. Ct. 2002.)

People who are stopped by the police and don’t want to answer questions or agree to a search should protect themselves by asking whether they are free to leave. If an officer refuses to allow a person to leave, a courtroom—rather than the street—is a safe place to argue about the legality of the officer’s actions.

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

Possibly. Many states have enacted “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 demand identification. Refusal to provide identification then becomes illegal resistance of 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 infrac- tions 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 demands Jones’s identification. Jones refuses to provide his ID. 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.

Do people have to respond to a police officer’s questions about place of birth or immigration status?

No. But a false answer can be offered in evidence at a court hearing. And a non- citizen who is asked for immigration papers in an airport or at a border crossing should show them to an officer.

Is it illegal to “flip off” a police officer?

Rude gestures and nasty comments to police officers are forms of free speech that under ordinary circumstances aren’t illegal. But hostile reactions to a police officer in the presence of others can constitute disturbing the peace or even attempting to incite a riot. And behaving rudely toward the police can motivate them to find something illegal you might have done—for example, jaywalking.

Can someone who starts to answer a police officer’s questions decide to stop the interview?

Yes. People have the right to halt police questioning at any time simply by indicating a desire not to talk further.

Does refusal to answer a police officer’s questions constitute loitering?

In some sense and some circumstances, yes. Laws in many states define loitering along the lines of “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 observes suspected 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.

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’ backyards. Believing that she might 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 have arrested her for loitering. However, depending on exactly what she did, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property).

Can people who have done nothing wrong sue and recover money “damages” from police officers who seek to question them?

No. Even in the complete absence of probable cause to arrest or suspicion to detain, police officers have the same right as anyone else to approach people and try to talk to them. Thus, in general, police officers don’t inter- fere with people’s civil rights merely by seeking to question them. But in the absence of a legitimate reason, police officers can’t detain people who want to move on in order to continue to question them.

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 doesn’t want to talk and closes the door. Officer Doff then leaves. The officer hasn’t violated Dee’s rights. The officer has a right to try to question Dee. When Dee indicated that she didn’t want to talk, the officer ended the interview. The officer’s actions are legally proper.

EXAMPLE: After walking away from Dee’s home, Officer Doff detains a suspect who fits the description of the robber. Officer Doff questions the suspect but neglects to first issue a “Miranda warning.” Even assuming that the warning was necessary for the suspect’s statements to the officer to be admissible in evidence in a later court case, Officer Doff isn’t liable to the suspect for civil damages. (Chavez v. Martinez, U.S. Sup. Ct. 2003.) In other words, suspects can’t 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.

Don’t police officers always have to read people the “Miranda rights” before questioning them?

No. A Miranda warning 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. And even then, the only “penalty” for a police officer’s failure to issue a Miranda warning is normally that a suspect’s statement is inadmissible in evidence at trial. A statement made to a police officer by a person who isn’t 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. (More on Miranda warnings later in this chapter.)

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 didn’t 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 wasn’t in custody.

Can people who think they are innocent of wrongdoing do themselves any harm by talking to a police officer?

Quite possibly. It is often perfectly sensible and socially desirable for innocent people to cooperate in a police investigation. However, talking to police officers always entails risks. Below are several important questions people should consider before agreeing to a police interview.

Can people who haven’t done anything wrong harm their interests if they are unsure about the events a police officer is asking about?

Unfortunately, people who haven’t done any- thing 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 people who want to cooperate with police officers ought to make sure that they are prepared to do so. Someone who is unsure about what to do might ask the officer to return at a later time.

Might the police learn about any unrelated crimes as a result of an interview?

People may decide to talk to police officers because they are confident their story will demonstrate they aren’t involved in the crimes that the officers are investigating. However, they might 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.

Might previous contacts with the police lead officers to distort what someone has said?

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 heard only what they wanted to hear. By repeating in court only part of a person’s statement or changing a few words around, a police officer could 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.

Do people ever get in trouble because they don’t know the law governing the events an officer is asking about?

People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior doesn’t 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 fistfight 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 people help themselves by answering 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.

Can people implicate themselves further by trying to talk their way out of a bad situation?

Yes! The golden rule of defense is that suspects who think that they might 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 normally politely invoke the right to remain silent, at least until consult- ing with an attorney.

Is it risky to provide false information to a police officer?

Yes. When people lie to the police or otherwise intentionally assist a known criminal to avoid arrest, they could 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 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.

Is it legal to record police activity with a phone camera?

A person who is in a public place and not interfering with or obstructing a police officer has a right to record police activity. An officer may not confiscate the phone or delete a recording without a warrant or court order.

EXAMPLE: In May 2020, an onlooker used her phone camera to video-record Minneapolis police officer Derek Chauvin killing George Floyd in the course of an arrest by keeping his knee on the back of Floyd’s neck. The recording was crucial evidence in Chauvin’s conviction of murder.

Are police body camera recordings generally admissible in evidence?

Yes. Many police officers now wear cameras often called “bodycams.” Bodycams provide video and audio information that is often admissible in evidence at trial. Typically, police officers activate bodycams in public places following stops, arrests, or searches, and don’t have to tell individuals they are being recorded.

EXAMPLE: Officer Merrill activates her bodycam while she carries out a “pat-down” search of Mulligan on June 14. Mulligan is later arrested for a crime that was committed on June 14. Mulligan testifies to an alibi, claiming to have been out of the country on June 14. The prosecution can offer the bodycam recording into evidence to rebut Mulligan’s testimony.

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 doesn’t 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

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 who’s 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
• 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 can’t 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.

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 doesn’t want to answer the officer’s questions and doesn’t have to. She has a constitutional right to remain silent. Yi should tell the officer, “I don’t want to answer any questions before I talk to a lawyer.”

When is a suspect “in custody” for purposes of the Miranda rule?

A suspect is in the custody of a police officer when, given all the circumstances, a reasonable person in the suspect’s place would understand that they aren’t free to terminate an interrogation and leave.

In California v. Beheler (1983), the U.S. Supreme Court stated that a person is in custody when a person’s “freedom of action is curtailed to a degree associated with formal arrest.”

The physical space in which questioning takes place doesn’t necessarily determine whether a person is “in custody.” If a suspect is in police custody, it doesn’t matter whether the interrogation takes place in a jail, at the scene of a crime, on a busy downtown street, or in the middle of an open field.

EXAMPLE: A police officer questions a prisoner in a prison conference room but advises the prisoner, “You are free to halt the questioning at any time and return to your cell.” The prisoner isn’t “in custody,” and the officer doesn’t have to issue a Miranda warning. (Howes v. Fields, U.S. Sup. Ct. 2012.) If the prisoner responds to the questions, the responses will be admissible in evidence at trial even though no warning was issued.

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 own subjective beliefs, such as those based on inexperience or a psychological condition. (Yarborough v. Alvarado, U.S. Sup. Ct. 2004.)

EXAMPLE: A police officer escorts Jed, a 15-year-old boy, into an office in an electronics store and says, “I’d like to talk to you about merchandise that has disappeared over the last few days, but you can go on your way if you’d like.” The officer doesn’t warn Jed of the Miranda rights, and in response to questioning, Jed admits taking “a few things.” A judge can take Jed’s age into account when deciding whether Jed was in custody even though the officer told him that he could leave. (J.D.B. v. North Carolina, U.S. Sup. Ct. 2011.)

If school officials start questioning a student but then bring in the police, are Miranda warnings required?

Yes, possibly. Consider the following example.

EXAMPLE: A high school teacher, fearing that a student has brought a weapon to school, escorts the student to the principal’s office. The principal questions the student and then calls in a campus police officer. The police officer asks additional questions and elicits the student’s admission to bringing knives to school. Neither the teacher nor the principal were required to give a Miranda warning before questioning the student, as they aren’t law enforcement officials. However, if a judge concludes that the student was “in custody,” the campus police officer would be required to give Miranda warnings before questioning the student.

Do the police have to give the Miranda warning to drivers who are pulled over for traffic violations?

The U.S. Supreme Court has acknowledged that a traffic stop involves significant restraint of a driver’s freedom. But it has also ruled that a typical roadside detention doesn’t place the driver “in custody” because it doesn’t involve the kind of restraint that’s typical of a formal arrest (for example, handcuffing).

Police officers needn’t give motorists Miranda warnings if they decide to question them about possible criminal activity that’s unrelated to the purpose of the stop. When it decided the Miranda case, the Supreme Court said that its ruling didn’t apply to “general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” That isn’t to say, however, that a traffic stop can’t evolve into a full-blown arrest that requires Miranda warnings for further questioning.

EXAMPLE: Officer Roy Altie pulls over a motorist to issue a ticket for running a stop sign. Drivers who are pulled over for routine traffic violations aren’t “in custody.” Officer Altie can question the motorist about possible criminal activity that’s unrelated to the purpose of the stop and doesn’t need to give the motorist a Miranda warning.

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, Officer Altie sees a man generally fitting the attacker’s description walking alone about a mile from where the purse snatching took place. 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 needn’t precede the questioning with the Miranda warning. Officer Altie was engaged in general on-the-scene questioning.

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 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 said is required by the Constitution. (Dickerson v. U.S., U.S. Sup. Ct. 2000.)

Can the government ever use statements that the police obtained in violation of Miranda?

Yes, assuming that the only reason the statement is inadmissible hinges on the Miranda violation and not other 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 might not be admissible at trial to prove his 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 sufficiently dangerous situations, the “public safety” exception allows police officers to question suspects about weapons without giving a Miranda If the interrogation leads the police to a weapon, the weapon can be offered into evidence against the suspect at trial. (New York v. Quarles, U.S. Sup. Ct. 1984.)
• Dangerous situation or not, any tangible evidence (“physical fruits,” 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. (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 the 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 they actually found out about it through questioning that violates Miranda.

These interpretations of the Miranda rule give the police an incentive to violate the 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 can’t 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. For instance, if a police officer gives a suspect a Miranda warning and then physically coerces the suspect into talking (say, by refusing the suspect’s requests for medicine hat the suspect has to take), the resulting statement can’t be used against the suspect.

A confession following the giving of a Miranda warning also can’t 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, having already confessed, to 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.)

Are charges automatically dismissed when police officers have questioned suspects without issuing Miranda warnings?

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 a prosecutor wants to offer the suspect’s statements into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:

• the suspect isn’t in custody
• the police don’t interrogate the suspect, or
• the police do interrogate the suspect, but the prosecution doesn’t 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 won’t cause dismissal of the case.

Can a suspect sue and collect money damages for a police officer’s failure to issue Miranda warnings?

No. A police officer’s failure to issue Miranda warnings before questioning a suspect isn’t a civil rights violation that can give rise to a claim for damages. The sole consequence of a violation of Miranda is that the government may not offer statements into evidence. (Vega v. Tekoh, U.S. Sup. Ct. 2022.)

Is it ever a good idea for an arrestee to talk to the police without a lawyer present?

No. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to invoke the right to remain silent until the attorney has assessed the charges and counseled the client about case strategy.

How do suspects assert the right to remain silent or the right to a lawyer when being questioned by the police?

Suspects don’t need to use a precise set of words to indicate that they want to remain silent. But the decision to remain silent should be clear. A suspect who responds to a Miranda warning by asking a police officer, “Should I contact a lawyer?” hasn’t indicated a clear intent to remain silent. But arrestees clearly invoke their Miranda rights by saying things like the following:

• “I don’t want to talk to you; I want to talk to an attorney.”
• “I refuse to speak with ”
• “I invoke my privilege against self-incrimination.”
• “I claim my Miranda ”

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

Even though suspects don’t have to mention the Miranda case or use a particular phrase to invoke their rights, those who want to prevent police questioning need 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 Thompkins, U.S. Sup. Ct. 2010; the dissenting justices 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 didn’t 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.

Can prosecutors ever offer a suspect’s silence into evidence at trial?

Yes. If a suspect who hasn’t been arrested and who hasn’t been given Miranda warnings doesn’t respond to a police officer’s questions, the suspect’s silence can be admissible at trial as evidence of guilt. Suspects must in some way explicitly invoke the right to remain silent. If they don’t, a prosecutor can use their silence in response to police officer inquiries as evidence of guilt. (Salinas v. Texas, U.S. Sup. Ct. 2013.)

EXAMPLE: Officer Jones suspects that Adams, who isn’t yet under arrest, was involved in an armed robbery. Adams says nothing in response to Officer Jones’s questions about his whereabouts at the time of the robbery. At trial, Adams’s silence is admissible evidence of his participation in the robbery. To demonstrate that he remained silent because he has a constitutional right to do so, Adams would have had to say something like “I claim my right to remain silent.” (A 2014 California Supreme Court case, People v. Tom, allows the prosecution to argue that the silence of a suspect who has been arrested, but who hasn’t been read the Miranda warnings or been interrogated, is likewise evidence of guilt.)

If charges have been filed and counsel has been appointed, can police officers ever question suspects when their lawyers aren’t present?

Yes. In order to claim the benefits of Miranda, defendants generally have to tell police officers that they don’t 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 doesn’t 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 him. Later, police officers visit him in jail and advise him 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 couldn’t introduce the letter into evidence to prove that Montejo committed the murder. Once he invoked his Miranda rights, the police had no right to continue to talk to him.

Prior to police questioning, are statements that suspects make voluntarily to police officers 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 didn’t question her. Thus, the fact that Ina had not been given a Miranda warning doesn’t bar admission of her statement into evidence.

What does it mean to “waive” the 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 advisement of and understood their Miranda rights, and that they want to talk to the police anyway.

But police officers don’t 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.

If suspects have invoked their Miranda rights, can police officers ever interrogate them at a later time?

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. In general, a suspect who has invoked the right to the presence of counsel during custodial interrogation can’t be interrogated further until counsel is available or the suspect initiates conversation with the police. But if a break of at least 14 days takes place, during which the suspect wasn’t in custody, police officers can renew questioning. At the subsequent interview, if the suspect waives their Miranda rights, new statements will probably be admissible in evidence. (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 him 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 him 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 doesn’t constitute an interrogation, and a booking officer doesn’t 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. (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 didn’t give Miranda warnings to the suspect before questioning him.

Following a waiver of Miranda rights, can suspects change their mind and invoke the rights to remain silent 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’m invoking the right to remain silent” 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.

Has the Miranda rule had a negative effect on crime clearance rates?

When Miranda was decided in 1966, police and prosecutors predicted a dire effect on their ability to secure convictions. In a 1998 book about Miranda, Professor Richard Leo estimated that at least 80% of suspects waive their Miranda rights and voluntarily talk to the police. However, an empirical analysis of Miranda’s possible effect on police officers’ “crime clearance rates” (crime solving) during the period 1950–2012 determined that clearance rates for violent and property crimes declined during that period. The analysis found that a portion of that reduction was a result of Miranda. (Paul G. Cassell & Richard Fowles, Still Handcuffing the Cops? A Review of Fifty Years of Empirical Evidence of Miranda’s Harmful Effects on Law Enforcement, 97 B.U. L. Rev. 685 (2017).)

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 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, S. v. Johnson, 6th Cir. 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. 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 might make suspects feel that their situations are already hopeless. For example, police officers may tell a suspect that he failed a lie detector test, a codefendant confessed and incriminated the suspect, or the police have a videotape of the suspect committing the crime. Even if the police lied, the confession is usually admissible in
• Taking advantage of a suspect’s pangs of guilt, police officers might 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 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 ” 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.

Judges may rule that police officers improperly interrogated suspects without warning them of their Miranda rights when officers who are trying to be coy or tricky make comments that are the functional equivalent of interrogation. For instance, assume that an officer talks to an in- custody suspect known to the officer to be religiously observant about how a crime violates the Ten Commandments. If the discussion of the Ten Commandments leads to the suspect confessing to the crime, a judge may decide that the discussion amounted to an interrogation by the officer. In the absence of a Miranda warning, therefore, the suspect’s confession wouldn’t be admissible in evidence.

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 wasn’t 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 his fingerprints at the crime scene and 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.)

But trickery can go too far. A documentary entitled Scenes of a Crime (2011) covers in detail the interrogation of a father who eventually confessed to killing his infant son. Convicted largely on the basis of the confession, the father went to prison. In 2014, New York’s highest appeals court unanimously held that the deception of the interrogating officers made the father’s confession involuntary. As but one example of their deception, the interrogating officers implored the father to confess in order to save his son’s life even though the boy had already died. Upon re- trial, the father was acquitted.

If a boss or landlord questions someone about illegal activity, can the response be used as evidence if there was no Miranda warning?

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

If the police plant an informant in a jail cell, are statements that a suspect makes to the informant admissible in evidence?

If a jailed suspect has been formally charged with a crime, the police violate the suspect’s right to counsel by planting a police informant in the suspect’s cell in the hope that the suspect will make damaging statements to the informant. Nevertheless, if a suspect testifies at trial and contradicts a statement the suspect made to a planted police informant, prosecutors can offer the contradictory statement 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 him, the police place an undercover informant in Ventris’s jail cell. The informant is prepared to testify that Ventris admitted committing the murder. At trial, 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 his credibility.

Besides Miranda, are there other restrictions placed on the police when they seek information from arrested suspects?

Yes. Confessions that are deemed to be involuntary aren’t allowed as evidence. Under this rule, the police aren’t 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 isn’t admissible, whether or not they read the suspect the 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.

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