Custodial Interrogation: Made Simple
One of the trickier and more important topics in criminal procedure is custodial interrogation. Even most people outside of law school have heard of Miranda warnings: “You have the right to remain silent. Everything you say can and will be used against you in a court of blah blah blah.”
The 1966 case Miranda v. Arizona about custodial interrogation is one of the Supreme Court's most famous decisions. But what do these Miranda warnings mean? When are they needed? Is everything obtained after Miranda warnings are given legal? Why oh why would anyone answer any questions if they know they don’t need to?
The law has answers to many of those questions, while others require assistance from inquiries into human nature: fear, indignation, worry, guilt, and the provocative powers of the police to produce confessions.
The general rule of Miranda is this: Statements obtained via custodial interrogation are not admissible absent prior Miranda warnings and a waiver. Put in if-then form: If evidence of a confessional statement is offered, and the statement was obtained from a setting of custody and interrogation, then the statement is inadmissible unless there were prior Miranda warnings and a proper waiver. Custody and interrogation get the evidence out. Warnings and a waiver are the exception that can get it back in.
The Miranda inquiry can be broken down into three steps. Before discussing the custody and interrogation elements that are the heart of the Miranda doctrine, first make sure the evidence is the type that Miranda is concerned with: testimonial statements from the defendant offered in the prosecution’s case-in-chief.
The relevant part of the Fifth Amendment reads, "No person shall … be compelled in any criminal case to be a witness against himself." The Fifth Amendment privilege is all about self-incrimination, which means that it has to be a statement from the defendant. It's a trial right — it's not violated until the defendant is force in a case to be a witness — to "testify" with a statement — against him- or herself.
Virtually any statement from the defendant can be self-incriminating — otherwise why would it be offered in the prosecution’s case-in-chief? So that part is easy enough. But statements from third parties, even co-conspirators, are admissible against the defendant. Again, the Fifth Amendment protects self-incrimination, not incrimination from co-conspirators or third parties, even if their statements were obtained from the custodial interrogation environment.
It must also be a statement, though, not another type of evidence such as physical evidence or eyewitness testimony from a third party. Sure, the defendant “incriminates” him- or herself by creating the opportunity, by providing physical evidence, or being seen at the scene of the crime, but it’s not a Fifth Amendment problem under the law. Which makes sense: Only you can incriminate yourself, not a gun with your fingerprints. Physical evidence could be shown to be inadmissible via alternate routes (such as Fruit of the Poisonous Tree, a due process violation, or otherwise) but not using Miranda by itself.
An important thing to be mindful of is that the privilege is limited to statements offered by the prosecution in its case-in-chief. The statement could still be used for impeachment purposes; that’s not incriminating per se in the eyes of courts. For this reason, many defendants still decline to take the stand even when a confession may have been obtained via custodial interrogation.
There are other ways to get self-incriminating statements thrown out for impeachment purposes, or evidence that is not a statement (such as due process violations or fruit of the poisonous tree), and be sure to use those in arguments. But unless the evidence being offered is a testimonial statement, it's not in the domain of Miranda.
The second step is the custodial interrogation prong of the Miranda analysis — the most identifiable part and likely the meat of the analysis on an essay. Intuitively enough, both custody and interrogation are needed for there to be custodial interrogation.
The suspect is in custody whenever a reasonable person would feel deprived of his or her freedom in such a way that they do not feel free to terminate the encounter and leave. It’s very similar to arrest. Look at freedom of movement — if a reasonable person under the circumstances would feel their freedom of action limited in a significant way, they are likely in custody.
Look also at whether the environment presents the same inherently coercive pressures as “the interrogation environment.” Does it feel like a traditional police interrogation, with several cops in a room surrounding the suspect and peppering him or her with questions? Are there formal procedures associated with processing, such as a formal booking? Are there other ordinary signs of a traditional arrest, such as handcuffs on the suspect? Is the encounter occurring in an inherently coercive place such as the police station, or at home where the suspect is likely to feel more comfortable? None of these factors are determinative alone, but they call can help or hurt a case that the environment is inherently coercive and thus custodial in nature.
An important thing to examine is whether there is apparent state action. Undercover cops and informants cannot create custody, because the suspect lacks the knowledge that they are cops — so there is no inherent coercion that the court in Miranda wanted to avoid.
After custody, it must be determined that there was interrogation. Interrogation can come in two forms: express questioning or implied interrogation. Normally, express questioning is straight-forward enough, as it occurs whenever a state actor directly queries the suspect. Did the officer direct a sentence at the suspect that ended in a question mark? Did the words demand a response?
There are some facts that could make express questioning tricky, but all borderline cases could be caught by the implied interrogation theory, where interrogation occurs whenever there are words or actions on the part of police that the police should know are reasonably likely to produce an incriminating response. Courts use the jargon of “spontaneous statements” or “volunteered utterances” to contrast when interrogation has not occurred with statements produced under implied interrogation. One of the open-ended questions remaining since Rhode Island v. Innis is whether presenting a suspect with physical evidence of a crime constitutes implied interrogation, or other "psychological ploys" constitute interrogation.
Both custody and interrogation must be present. Interrogation without custody is not a Miranda problem, nor is custody without either express questioning or functional interrogation.
The final prong of the Miranda analysis is whether there were warnings and a proper waiver. In order for a suspect to waive rights, the Miranda warnings must be given warnings notifying the suspect of those rights. The warnings should notify the suspect of the right to remain silent, that evidence will be used against him or her, and the right to an attorney. They need not be recited verbatim from every police procedural show script.
Then, the suspect must knowingly, intelligently, and voluntarily waive his or her Miranda rights without invoking those rights. Oddly, a waiver of rights can be implied from the conduct of the suspect.
Once a suspect invokes his or her rights, police are not permitted to further "badger" the suspect to obtain a waiver. To benefit from an invocation, the suspect must unequivocally and unambiguously convey he or she would like to remain silent or speak with an attorney. The invocation must be "timely" and "live," meaning suspects cannot invoke their rights until they're in custody and warned.
Once invoked, police must scrupulously honor an invocation by not attempting to get a waiver of Miranda rights from the detainee or by asking further questions of the detainee. The invocation can be sought again later only after a 14-day break in questioning, or if the suspect reinitiates questioning.
But once warnings have been issued and there is a valid, waiver, testimonial statements and confessions of even the most damning variety can be admitted by the prosecution to incriminate the suspect.