No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In Miranda v. Arizona, a custodial confession case decided two years after Escobedo, the Court deemphasized the Sixth Amendment holding of Escobedo and made the Fifth Amendment self-incrimination rule preeminent. 1 The core of the Court's prescriptive holding in Miranda is as follows:
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. 2
In the opinion of the Miranda Court, police interrogation as conceived and practiced was inherently coercive and the resulting intimidation, though informal and legally sanctionless, was contrary to the protection to be afforded in a system that convicted on the basis of evidence independently secured. In the Court’s view, this premise underlaid the law in the federal courts since 1897, and the application of the Self-Incrimination Clause to the states in 1964 necessitated the application of the principle in state courts as well. Thereafter, state and local police interrogation practices need be structured to ensure that suspects not be stripped of the ability to make a free and rational choice between speaking and not speaking. The warnings and the provision of counsel were essential, the Court said, in custodial interrogations. 3
In these cases [presently before the Court], said Chief Justice Warren,
we might not find the defendants’ statements to have been involuntary in traditional terms[, but o]ur concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. 4 It was thus not the application of the Self-Incrimination Clause to police interrogation in Miranda that constituted the major change from precedent but rather the prescriptive series of warnings and guarantees which the Court imposed as security for the observance of the privilege.
Although the Court’s decision rapidly became highly controversial and the source of much political agitation, including playing a prominent role in the 1968 presidential election, the Court has continued to adhere to it, 5 albeit not without considerable qualification. Nevertheless, the constitutional status of the Miranda warnings has remained clouded in uncertainty. Had the Court announced a constitutionally compelled rule, or merely a supervisory rule that could be superseded by statute? In 1968, Congress enacted a statute, codified at 18 U.S.C. § 3501, designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test. 6 The statute lay unimplemented, for the most part, due to constitutional doubts about it. Meanwhile, the Court created exceptions to the Miranda warnings over the years, and referred to the warnings as
prophylactic 7 and
not themselves rights protected by the Constitution. 8 There were even hints that some Justices might be willing to overrule the decision.
In Dickerson v. United States, 9 the Court addressed the foundational issue, finding that Miranda was a
constitutional decision that could not be overturned by statute, and consequently that 18 U.S.C. § 3501, which provided for a less strict
voluntariness standard for the admissibility of confessions, could not be sustained. Consistent application of Miranda warnings to state proceedings necessarily implied a constitutional base, the Court explained, since federal courts
hold no supervisory authority over state judicial proceedings. 10 Moreover, Miranda itself had purported to
give concrete constitutional guidance to law enforcement agencies and courts to follow. 11 The two dissenting Justices in Dickerson maintained that the majority's characterization of Miranda as providing concrete constitutional guidance fell short of holding that custodial interrogation not preceded by Miranda warnings was unconstitutional, a position with which the dissenters pointedly disagreed. 12 Eleven years after Dickerson, in the 2011 case J.D.B. v. North Carolina, the number of Justices asserting that Miranda was not a constitutional rule grew to four. 13 Also, that Miranda may be rooted in the Constitution does not, according to the Court, mean that the precise articulation of the warnings in it is
Beyond finding that Miranda has, at the least,
constitutional underpinnings, the Dickerson Court also rejected a request to overrule Miranda.
Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, Chief Justice Rehnquist wrote for the seven-Justice majority,
the principles of stare decisis weigh heavily against overruling it now. There was no special justification for overruling the decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had
core ruling. Moreover, Miranda warnings had
become so embedded in routine police practice [that they] have become part of our national culture. 15
As to the viability of Miranda claims in federal habeas corpus cases, the Court had suggested in 1974 that most claims could be disallowed, 16 but such a course was squarely rejected in 1993. The Court ruled in Withrow v. Williams that Miranda protects a fundamental trial right of the defendant, unlike the Fourth Amendment exclusionary rule addressed in Stone v. Powell, 17 and claimed violations of Miranda merited federal habeas corpus review because they relate to the correct ascertainment of guilt. 18 The purposes of the Miranda rule differed from the Mapp v. Ohio 19 exclusionary rule denied enforcement in habeas proceedings in Stone, the Court explained, because the primary purpose of Mapp was to deter future Fourth Amendment violations, a purpose that the Court claimed would only be marginally advanced by allowing collateral review. 20 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, because most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions. 21
In any event, the Court has established several lines of decisions interpreting key aspects of Miranda.
First, Miranda warnings must be given prior to
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 22 The cases have distilled
custody or other significant deprivation of action into a two-part assessment under which restricting a person's movement is a necessary but not sufficient element. Not all inhibitions of
free movement trigger Miranda. Whether a person is
in custody during questioning depends on the coercive pressure posed. The Court applies an objective, context-specific test of how intimidated a reasonable person in the suspect’s shoes would feel to freely exercise his right against self-incrimination. A police officer’s subjective and undisclosed view that a person being interrogated is a criminal suspect is not relevant for Miranda purposes, nor is the subjective view of the person being questioned. 23 The only refinement to this one-size-fits-all reasonable person test is consideration of age if the detainee is a juvenile. 24
An ordinary traffic stop does not to amount to Miranda
custody. 25 Nor do all interrogations of prison inmates about previous outside conduct, even if the inmate is isolated from the general prison population for questioning. 26 This view on prison interrogations evidences the Court's continuing movement toward individualized analyses of Miranda issues based on particular circumstances and away from the more categorical decisions announced soon after Miranda. Still, some of the early decisions may retain vitality. One example is the 1969 decision in Orozco v. Texas, which held that questioning a person upon his arrest in his home is custodial. 27 On the other hand, the fact that a suspect may be present in a police station does not necessarily mean, in the absence of further restrictions, that questioning is custodial, 28 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial. 29 Also, if a person has been subjected to Miranda custody, that custody ends when he is free to resume his normal life activities after questioning. 30 Nevertheless, a break in custody may not end all Miranda implications for subsequent custodial interrogations. 31
Second, Miranda warnings must precede custodial interrogation. It is not necessary under Miranda that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis. 32 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being transported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for children with disabilities was near the crime scene and that they hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon’s hiding place.
Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said:
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. 33 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible. 34
A later divided Court applied Innis in Arizona v. Mauro 35 to hold that a suspect who had requested an attorney was not
interrogated by bringing instead the suspect's wife, who also was a suspect, to speak with him in police presence. The majority emphasized that the suspect's wife had asked to speak with her husband, the meeting was therefore not a police-initiated ruse designed to elicit a response from the suspect, and in any event the meeting could not be characterized as an attempt by the police to use the coercive nature of confinement to extract a confession that would not be given in an unrestricted environment. The dissent argued that the police had exploited the wife's request to talk with her husband in a custodial setting to create a situation the police knew, or should reasonably have known, was reasonable likely to result in an incriminatory statement.
In Estelle v. Smith, 36 the Court held that a court-ordered jailhouse interview by a psychiatrist seeking to determine the defendant's competency to stand trial constituted
interrogation with respect to testimony on issues guilt and punishment; the psychiatrist’s conclusions about the defendant’s dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Miranda warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was
immaterial, the Court concluded, since the psychiatrist’s testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution. 37 Other instances of questioning in less formal contexts in which the issues of custody and interrogation intertwine, e.g., in on-the-street encounters, await explication by the Court.
Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attorney. 38 The Court recognized that
other fully effective means could be devised to convey the right to remain silent, 39 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner. 40 Nevertheless, it is not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used
fully conveyed to a defendant his rights. 41
Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect
indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Further, if the suspect indicates he wishes the assistance of counsel during interrogation, questioning must cease until he has counsel. 42
That said, the Court has issued a distinct line of cases on the right to counsel that has created practically a per se rule barring the police from continuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. In Edwards v. Arizona, 43 initial questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held,
when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. 44 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested. 45 It also applies to interrogation by officers of a different law enforcement authority. 46
On the other hand, the Edwards rule requiring that a lawyer be provided to a suspect who had requested one in an earlier interrogation does not apply once there has been a meaningful break in custody. The Court in Maryland v. Shatzer 47 characterized the Edwards rule as a judicially prescribed precaution against using the coercive pressure of prolonged custody to badger a suspect who has previously requested counsel into talking without one. However, after a suspect has been released to resume his normal routine for a sufficient period to dissipate the coercive effects of custody, a period set at 14 days by the Shatzer Court, the rationale for solicitous treatment ceases. If the suspect is thereafter put into custody again, the options for questioning no longer are limited to suspect-initiated talks or providing counsel, but rather the police may issue new Miranda warnings and proceed accordingly. 48 Moreover, the Edwards rule has not been explicitly extended to other aspects of the Miranda warnings. 49
Fifth, a properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and respond to questioning, but the Court also cautioned that the prosecution bore a
heavy burden to establish that a valid waiver had occurred. 50 The Court continued:
[a] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. 51 Subsequent cases indicated that determining whether a suspect has waived his Miranda rights is a fact-specific inquiry not easily susceptible to per se rules. According to these cases, resolution of the issue of waiver
must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ 52 Under this line of cases, a waiver need not always be express, nor does Miranda impose a formalistic waiver procedure. 53
In Berghuis v. Thompkins, citing the societal benefit of requiring an accused to invoke Miranda rights unambiguously, the Court refocused its Miranda waiver analysis to whether a suspect understood his rights. 54 There, a suspect refused to sign a waiver form, remained largely silent during the ensuing 2-hour and 45-minute interrogation, but then made an incriminating statement. The five-Justice majority found that the suspect had failed to invoke his right to remain silent and also implicitly had waived the right. According to the Court, though a statement following silence alone may not be adequate to show a waiver, the prosecution may show an implied waiver by demonstrating that a suspect understood the Miranda warnings given him and subsequently made an uncoerced statement. 55 Further, once a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly invokes them later. 56
Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt 57 or for determining the sentence, at least in bifurcated trials in capital cases. 58 On the other hand, the
fruits of such an unwarned confession or admission may be used in some circumstances if the statement was voluntary. 59
The Court, in opinions that bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may be used. 60 Thus, in Harris v. New York, 61 the Court held that the prosecution could use statements, obtained in violation of Miranda, to impeach the defendant’s testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass, 62 the Court permitted impeachment use of a statement made by the defendant after police had ignored his request for counsel following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with the pre-Miranda tests for the admission of confessions and statements. 63
The Court has created a
public safety exception to the Miranda warning requirement, but has refused to create another exception for misdemeanors and lesser offenses. In New York v. Quarles, 64 the Court held admissible a recently apprehended suspect’s response in a public supermarket to the arresting officer’s demand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the supermarket. The Court, in an opinion by Justice Rehnquist, 65 declined to place officers in the
untenable position of having to make instant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that resulting evidence will be excluded at trial. While acknowledging that the exception itself will
lessen the desirable clarity of the rule, the Court predicted that confusion would be slight:
[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. 66 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule’s
simplicity and clarity counseled against creating one. 67
[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested. 68