1.         Voluntariness – this is the overriding requirement for all admissions and confessions.




a.         To inform suspect of his Fifth Amendment rights not to be compelled to be a witness against oneself.


            b.         Fifth Amendment


            c.         No person shall be compelled to be a witness against himself


d.         An attorney may need to be present to protect the suspect’s Fifth Amendment rights.


            e.         Custody and interrogation = Miranda


            f.          No – applies to testimonial evidence only.



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)         The giving of a Miranda warning establishes a presumption of custodial interrogation, even if no actual custody exists.  If when custody occurred becomes an issue, this could hurt a close case.


3.         People in custody and being interrogated by known police officers or civilians whom suspect knows are being directed by the police.




a.         Custody exists if the person being interrogated reasonably believes that he or she is not free to leave or not free to refuse to answer questions.


b.         What a reasonable innocent person would believe if they were in the same situation.


c.         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 your reasonably believe 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 case is affected by the lack of Miranda warning.


            The demeanor of the officers can effect 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 refuse to answer questions, then custody exists for Miranda purpose, 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 suspects’ 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 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 to the suspect, the more custodial the situation will seem to him or her.  Likewise, the more isolated a location, the more custodial it will seem.  In all cases, movement 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.






                        1)         Guilt seeking questions – interrogation     

                        2)         Booking questions – not interrogation

                        3)         Questions blurted out by officers – not interrogation


b.         Making statements or taking actions which elicit incriminating statements from suspect especially when playing upon known sympathies or beliefs of a suspect and confronting suspect with evidence.


c.         Just listen, do not extend the scope of the statement with questions.




            a.         Prosecutor and therefore the police officer


b.         Right to remain silent.  Anything you say can and will be used against you in a court of law.  Right to talk to lawyer and have him present.  If you cannot afford an attorney, one will be appointed.


            c.         Understands right – waives them



1)         If it is written it is evidence of its reading and waiver, not just going on police officer’s word.




a.         Don’t read Miranda to juveniles.  Be careful with persons inexperienced with police officers.


b.         Try to read them their rights by simplifying wording if necessary

for them to understand.


            c.         Read rights, if lucid but not if totally out of it.


            d.         Read rights anyway


            e.         Read rights anyway


            f.          Offer to read rights as a courtesy.




a.         Repeat and explain warning.  If still don’t indicate they understand, treat it as a refusal.


            b.         Let them begin.


c.         Can’t ask questions, may see if they change their mind later, but no badgering.


d.         Can’t ask questions, can’t go back and ask them if they change

mind.  They must initiate contact with the police.


            e.         Try to find a witness or record incident.


f.          Repeat and explain, silence is not good enough.  If still no response, treat as refusal.


g.         Stop them and make sure they understand.  Then if they begin talking, let them.


h.         Clarify their understanding and do not begin interrogation unless you know they understand.


i.          OK to try to obtain statement on other crime as long as no attorney was requested when they initially refused to talk.  If attorney was requested, do not question.


            j.          Stop questioning, suspect can change their mind.


k.         OK, read warning again and carefully document waiver.  If they had initially requested an attorney, document that suspect initiated contact.


            l.          See k. above


m.        No requirement that statement be stopped in face of ambiguous request.





                        1)         Break in interrogation

                        2)         Change in person present for interrogations

                        3)         Change in location of interrogation

                        4)         Earlier warning not properly done

                        5)         Suspect did not understand

6)         Suspect indicates doubt about whether he/she must continue




                                    1)         Read warning and obtain a valid waiver.






1)         The suspect becomes a defendant.  Has 6th Amendment right to attorney.  No police contact without attorney present if defendant wants an attorney.  Volunteered statements still admissible.




                        1)         Yes




1)         Yes, but must read Miranda warning, obtain valid waiver if in custody.