PART IV – ADMISSIONS AND CONFESSIONS / MIRANDA

1. Objective is it’s own source.
See handouts - “Admissions and Confessions - Basic Issues.”
Refer to handouts - “Is It Voluntary?.”

See text chapter 6, esp. 6:23 – 6:26 (F)

2. a. & b. See glossary definition of the term “Miranda warning”
See handouts - “Admissions and Confessions - Basic Issues.”

c. See handouts - “The Bill of Rights and Fourteenth Amendment to the U.S. Constitution” (green sheets).

d. Assistance of an attorney is part of the Miranda warning not because the Sixth Amendment is an issue (it does not attach until a decision to prosecute is made), but because the attorney may need to be present to protect the suspect’s Fifth Amendment right.

e. See text 6:8 (bottom)

See handouts - “The ‘Miranda Equation’.”

f. Miranda applies to testimonial evidence only - there is not requirement that a Miranda warning be given prior to taking non-testimonial evidence.

g. Two of several possible reasons: (1) The reading of the Miranda warning tends to discourage the person from talking where they might do so otherwise. If there is no legal requirement that Miranda warnings be given, why deter the person from making a statement? (2) Once a person is read Miranda and invokes those rights, especially for the assistance of counsel, no custodial interrogation on any criminal topic may occur without the suspects lawyer being present.

3. See text - page 6:11 (beginning at red paragraph)
Refer to handouts - “To Whom Does the Miranda Requirement Apply?”

General Rule for status requirements for Miranda - to known officers of law enforcement and their agents - it does not apply to citizens without law enforcement powers or to police officers or their agents whose connection to law enforcement is unknown to the subject.

4. See text - pages 6:2 - 6:6 (top), parts of 6:6 - 6:8.

Refer to handouts - “What Is Custody?”

a. General rule for custody for Miranda purposes - Custody exists if a reasonable person looking at the circumstances reasonably believes that the suspect was not free to leave or to refuse to answer questions. This does not automatically make detention a custodial situation, as here the seizure is temporary. It is situations that look like a custodial arrest because of the officer’s actions that require Miranda when interrogation is going to take place[See Stansbury v. CA 511 U.S. 318 (1994)]. .

b. Reasonable belief is defined as what a reasonable innocent person would believe under the circumstances, not what the particular suspect believes.

c. Refer to handouts - “What is Custody?”

Grabbing or touching the subject for the purpose of preventing their departure or forcing them to answer questions establishes a custody situation for Miranda purposes. A show of a weapon does also, although it may be appropriate to show a weapon at the beginning of a stop involving persons you reasonably suspect were involved in a violent crime. Whether this triggers a need for Miranda after the weapon is put away depends on the subsequent actions of the officer. Chasing a suspect is not a seizure until the person is actually forcibly stopped or submits to the authority of the officer. Therefore nothing said by the suspect in response to the officer during the chase is affected by the lack of Miranda warning.

The demeanor of the officer can affect the need for Miranda. Again, if a person would feel, because of the officer’s bearing, that he/she is not free to leave or to refuse to answer questions, then custody exists for Miranda purposes, even if it does not actually exist as far as the officer is concerned. Hostile behavior, ordering actions, and using insulting or demeaning language all tend to create this belief in the mind of a reasonable person.

The suspect’s actual custody status has little bearing on the issue, except that Miranda is never required in a technical arrest situation. (see glossary definition of the term “technical arrest”).

The longer a stop, and the interview, goes on, the more custodial it will seem to a reasonable person.

The more officers that are present at a stop, the more custodial it will seem. One-on-one is the best proportion, but where danger exists, the courts have held that two-on-one is not unreasonable. Obviously, the number of undercover officers present is of no import.

Three factors need to be considered (as a general rule) regarding location. The more unfamiliar the location is to the suspect, the more custodial the situation will seem to him or her. Likewise, the more isolated a location is, the more custodial it will seem. In all cases, movement that is unwarranted by issues of safety or security, or authorized by the subject, will make the situation seem more custodial.

Generally, interviews that are held outside of the subject’s normal business hours will seem more custodial.

The existence of probable cause, in the mind of the officer, has no effect on the custody of the individual; it is only what the officer does that effects what a person reasonably believes.

5. See text - pages 6:8 (bottom) - 6:10.

Refer to handouts - “Interrogation Issues.”

a. The asking of questions is interrogation if it can be shown that the officers knew the questions were likely to elicit incriminating statements, that is, that they were guilt seeking. Booking questions are generally not considered interrogation. Nor are questions blurted out by the officer without reflection or questions asked where there is a clear need to obtain information to protect the public or some specific person from serious harm.

b. Interrogation does not need to be in the form of a question. Any statement or action taken by the officer with a clear intent to encourage the making of an incriminating statement is considered interrogation for Miranda purposes. Therefore making statements which are intended to play upon the known sympathies or beliefs of a suspect in order to gain incriminating statements are considered interrogation. So, too, is confronting the suspect with evidence against him or her, even if not accompanied by questions.

c. An officer may, of course, always listen to volunteered statements, but should not extend the scope of the statement with questions, as this then would be considered interrogation. Signs of interest such as saying “oh?” or “uh-huh” don’t extend the scope of the statement and generally should cause no problem.

6. a. The prosecution - and therefore the police officer - must prove the Miranda warning was given. The defense has no obligation to prove the contrary and need only raise the issue.

b. See handouts - “Miranda Warning and Procedure” (A.).

c. See handouts - “Miranda Warning and Procedure” (B. & C.).

d. A written waiver is evidence of the reading of the warning and subsequent voluntary waiver, but it is not a legal necessity.

7. See text - pages 6:4 (bottom) - 6:6 (top), 6:24 – 6:25.

Refer to handouts - “Issues Affecting the Validity of the Waiver of Rights.”

a. Juveniles should not have Miranda warnings given to them by patrol officers. A Deputy Juvenile Officer should supervise all of these activities. Special care must be given when dealing with those who are inexperienced with police officers, especially those who are reclusive, or new to our society, so that the officers actions do not intimidate them to the point that their will is overborne.

b. Persons with apparent sub-standard intelligence, such as the mentally retarded or demented individuals, may be Mirandized and interrogated, but special care must be taken in giving the warning to ensure understanding. The warning may be given in a simplified form as long as the content is the same.

c. While some care must still be taken when dealing with a subject who is under the influence, in State v. Mitchell (1999) the Missouri Court of Appeals for the Southern District held that even a blood alcohol level of .24% in a party that was described a “very, very drunk” does not of itself preclude ability to knowingly and intelligently waive Miranda rights after receiving a warning. Court cited State v. Loazia 829 S.W.2d 558, 566 (Mo.App. 1992), which stated that intoxication was not an issue as long as it “does not amount to mania.” Mitchell had driven truck to nearby store and called sheriff, and despite slurred speech and mumbling, had twice given a cogent account of what had happened after being warned of his rights per Miranda v. Arizona and having waived them. Clearly, as long as the subject is functioning well enough to do this sort of activity, there are clear precedents that will allow Miranda to be read and waived.

d. & e. Everyone who is to be custodially interrogated should have their Miranda Rights read to them. This even includes people who could be expected to know their rights, such as lawyers and persons with prior arrest experience, an well as those individuals who claim they don’t already know their rights.

f. Technically, once a suspect’s lawyer is present, it is the lawyer’s responsibility to protect the rights of the suspect. So, legally you do not need to read the Miranda warning. However, as a courtesy, it is a good idea to ask if the attorney would like the rights read.

Note: there are other issues in the text worth reviewing.

8. See text - pages 6:15 - 6:22 (E).

Refer to handouts - “Responses to Miranda Warning.”

a. If the suspect cannot (or will not) understand the Miranda warning, you may ask the suspect what he/she does not understand, and may even explain and/or re-read the rights in a simplified manner. If the suspect continues to say that he/she does not understand, treat this response as a refusal to talk.

b. This is, of course, what you hope for. You may begin the interrogation.

c. At this point, you should end the interrogation session and return the suspect to his/her cell or to wherever they would next go. You may, under certain circumstances, ask later if the suspect has reconsidered and would like to talk to you. This must avoid the appearance of “badgering” or “nagging.”

d. At this point, you should end the interrogation session and return the suspect to his/her cell or to wherever they would next go. You may not, under any circumstances, ask later if the suspect has reconsidered and would like to talk to you. An attorney must be present before you can interrogate the suspect.

e. Again, there is no legal requirement that there be a written waiver. You should note on the form being used that the suspect refused to sign, but was willing to talk to you. This should be witnessed by someone else present in the interrogation session and/or by means of a recording.

f. A waiver of rights must be overt. There is no such thing as a tacit waiver. This situation should be treated as a refusal to talk.

g. If the person starts immediately after the reading of the warning, you will have to stop the suspect and make sure he/she understands the rights. If the person starts after indicating he/she understands, allow him/her to continue. You may assume, if they understand, that beginning to make a statement is the same as a waiver.

h. If you are unsure of the waiver, ask what questions are necessary to clarify the situation, but do not begin interrogation until you are sure of the waiver.

i. As long as the suspect only refused to talk to you, and did not request an attorney, another officer may still attempt to question him about another crime. If there was a request for an attorney, however, it is not absolutely clear whether the evidence could be used. Certainly, if the second interrogation took place within the same period of incarceration, it seems possible that the evidence would be lost.

j - l. The suspect may change his or her mind at any time in the process. If the change is from refusal to talk or a request for an attorney to an agreement to speak, the waiver must be carefully documented. This is especially true if the original response was a request for an attorney, since you must prove that the waiver was initiated by the suspect.

m. There is no requirement that the officer stop interrogation in response to an ambiguous statement regarding desire to continue or to see an attorney. Only unambiguous requests must be honored, once a valid waiver has been obtained. Officers are not even required to stop the interrogation to determine the intent of the statement. It is the suspect’s responsibility to make it plain that he/she wishes to cease answering questions or to have an attorney present. The burden of proof regarding the interpretation of the suspect’s statements lies with the prosecution, however.

9. Refer to handouts - “Repeating the Warning.”

a. See text - page 6:14 – 6:15 (D).

Anytime there is a significant passage of time between sessions, where there has been a change in personnel conducting the interrogation, or the interrogation is moved from one location to another, the warning should be repeated. Changing the topic of interrogation does not require a repeat of the Warning.

b. See text - pages 6:26 (G.).

However, note that this is not the case anymore. In State v. Siebert (2002) a two-part interrogation technique, taught by some training entities as a legitimate method of encouraging a Miranda waiver and confession, was rejected as unconstitutional by the Missouri Supreme Court. The technique involves intentionally “warming-up” the suspect with guilt-seeking questions prior to the reading of Miranda. Once the suspect begins to make significant incrimination statements, the interrogation is suspended and Miranda is read. Then the questions are asked again. On June 28^th, 2004 the U.S. Supreme Court affirmed the Missouri Supreme Court decision making all intentional two-part interrogations (“questions-first Miranda warning”) a violation of a suspect’s Constitutional rights. In this decision the U.S. Supreme Court makes a clear distinction between the intentional technique and the inadvertent and limited pre-interrogation accepted in Oregon v. Elstad (1985).

10. see text – 6:22 – 6:23 (top)

Minnick vs. Mississippi (1990) –Fifth Amendment rights remain in effect until the person is released from the custody during which they were invoked. So, if a suspect is released, and then re-arrested, interrogation can be re-initiated by the government after the Miranda Rights are read and waived. If the suspect is not released from custody prior to trial and subsequent incarceration, the invocation remains in effect during imprisonment, even if the convicted subject commits other crimes in prison. Sixth Amendment Rights last until the completion of the prosecution or until the charges are dropped.

11. See text - pages 6:28 (I.).

Refer to handouts - “Interrogation of Protected Defendants.”

a. The suspect becomes a defendant when the government signals its intention to prosecute by initiating “adversarial judicial proceedings”… “by way of formal charges, preliminary hearing, indictment, information, or arraignment.” (Kirby v. IL (1972). Once a defendant, he/she has a Sixth Amendment right to have an attorney present at all significant points of the criminal proceedings. Once this happens, many things discussed under Miranda no longer applies. If the defendant expresses a wish for an attorney at any point after the first judicial appearance, no contact should be made with the suspect until he/she has seen an attorney and all further police contact with the defendant may need to be with the attorney present. Volunteered statements may still be used as evidence.

b. The defendant may still waive his/her right to an attorney. Given the current unclear precedent regarding waiver, the attorney should probably be notified that an attempt to obtain waiver is being made.

c. The restrictions on interrogation of a charged defendant apply only to the crime with which he/she was charged. Interrogation of the same person regarding an unrelated crime may be done subject to Miranda requirements.

12. This objective requires the application of information from the preceding objectives. Preparation for this is accomplished by viewing filmed recreations of interrogations and a discussion in class of the legality of the procedures used.

13. This is also an application objective. Appropriate scenarios are provided later in the block during the Search Incident to Arrest and Searches and Seizures Without a Warrant sections.