Miranda warning


Miranda warning

The Miranda warning (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights.[Note 1] The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.

Under the U.S. Supreme Court decision in Berghuis v. Thompkins suspects retain their 5th Amendment right to remain silent, however, if a suspect waives this right and interrogation begins, the right to halt further interrogation by the police must be exercised explicitly, by revoking the prior waiver of this 5th Amendment right.

Contents

Miranda rights

A CBP officer reading the Miranda rights to a suspect.

The concept of "Miranda rights" was enshrined in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision, which found that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for rape and kidnapping. (Miranda was subsequently retried and convicted.)

The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, the Court did create a set of guidelines that must be followed. The ruling states:

...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.

As a result, American English developed the verb Mirandize, meaning "read the Miranda warning to" a suspect (when the suspect is arrested).[1]

Notably, the Miranda rights do not have to be read in any particular order, and they do not have to precisely match the language of the Miranda case as long as they are adequately and fully conveyed. California v. Prysock, 453 U.S. 355 (1981).[2]

On June 1, 2010, in deciding the Berghuis v. Thompkins case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police. Justice Anthony M. Kennedy wrote the opinion and was joined by Justices Scalia, Alito, and Thomas and by Chief Justice Roberts. Justices Stevens, Ginsburg, Sotomayor, and Breyer dissented. Elena Kagan, who had presented the government's case as Solicitor General of the U.S. and who was nominated to succeed Justice Stevens, supported Kennedy's ruling in her arguments that pointed out that the ruling spelled out for prosecutors and defendants just how the right against self-incrimination applies in such cases. Those who oppose it state that the requirement that the defendant must speak to indicate his intention to remain silent further erodes the ability of the defendant to stay completely silent about the case. This opposition must be put in context with the second option offered by the majority opinion, which allowed that the defendant had the option of remaining silent, saying: " Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation." Thus having been "Mirandized" a suspect may avow explicitly the invocation of these rights, or, alternatively, simply remain silent. Absent the former "anything [said] can and will be used against [the defendant] in a court of law."

Typical usage

Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person arrested or placed in a custodial situation. The typical warning states:

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?[3]

The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but on June 1, 2010, the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who have not unambiguously invoked or waived their rights, and any statement given during questioning prior to invocation or waiving is admissible as evidence.[4] Evidence has in some cases been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.[citation needed]

Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.

Some jurisdictions provide the right of a juvenile to remain silent if their parent or guardian is not present.

Even though this sentence may be somewhat ambiguous to some laypersons, the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989) (upholding use of sentence by Hammond, Indiana police).

In states bordering Mexico, including Texas, New Mexico, Arizona, and California, suspects who are not United States citizens are given an additional warning:[citation needed]

If you are not a United States citizen, you may contact your country's consulate prior to any questioning.

Some states including Virginia require the following sentence, ensuring that the suspect knows that waiving Miranda rights is not a one-time absolute occurrence:[citation needed]

You can decide at any time from this moment on to terminate the interview and exercise these rights.

California, Texas, New York, Florida, Illinois, North Carolina, South Carolina, Virginia, Washington and Pennsylvania also add the following questions to comply with the Vienna Convention on Consular Relations.[citation needed]

Question 1: Do you understand each of these rights I have explained to you?
Question 2: Having these rights in mind, do you wish to talk to us now?

An affirmative answer to both of the above questions waives the rights. If the suspect responds "no" to the first question, the officer is required to re-read the Miranda warning, while saying "no" to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived.

Generally, when defendants invoke their Fifth Amendment right against self-incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot punish them by commenting on their silence and insinuating that it is an implicit admission of guilt. Griffin v. California, 380 U.S. 609 (1965). Since Miranda rights are simply an extension of the Fifth Amendment, which protects against coercive interrogations. The same rule also prevents prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda rights immediately after arrest. Wainwright v. Greenfield, 474 U.S. 284 (1986). However, neither the Fifth Amendment nor Miranda extend to prearrest silence, so if a defendant takes the stand at trial (thereby waiving his Fifth Amendment rights), the prosecutor can attack his credibility with his prearrest silence (where he failed to turn himself in and confess immediately). Jenkins v. Anderson, 447 U.S. 231 (1980).

Under the Uniform Code of Military Justice, Article 31[5] provides for the right against self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it. The United States Navy and United States Marine Corps require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire; a verbal waiver is not sufficient.

It has been discussed[by whom?] whether a Miranda warning — if spoken or in writing — could be appropriately given to disabled persons. For example, "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education. In one case, a deaf murder suspect was kept at a therapy station until he was able to understand the meaning of the Miranda warning and other judicial proceedings.[6]

Public safety exception

The Miranda rule is not, however, absolute. An exception exists in cases of “public safety.” This limited and case-specific exception allows certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there was great danger to public safety.[7]

The public safety exception derives from New York v. Quarles, a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. The arrest took place in a crowded grocery store. When the officer arrested the suspect, he found an empty shoulder holster, handcuffed the suspect, and asked him where the gun was. The suspect nodded in the direction of the gun (which was near some empty cartons) and said, “The gun is over there.” The Supreme Court found that such an unadvised statement was admissible in evidence because "[i]n a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer.”[8] Thus, the jurisprudential rule of Miranda must yield in “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.” The rule of Miranda is not, therefore, absolute and can be a bit more elastic in cases of “public safety.”[7]

The six rules

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.[9] Therefore, for Miranda to apply, six factors must be present:

  1. Evidence must have been gathered.
  2. The evidence must be testimonial.[10]
  3. The evidence must have been obtained while the suspect was in custody.[11]
  4. The evidence must have been the product of interrogation.[12]
  5. The interrogation must have been conducted by state-agents.[13]
  6. The evidence must be offered by the state during a criminal prosecution.[14]

First, this requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no importance.[15]

Second, Miranda applies only to "testimonial" evidence as that term is defined under the Fifth Amendment.[10] For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.[16][17] The Miranda rule does not prohibit compelling a person to engage in non-assertive conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving handwriting[18] or voice exemplars,[19] fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause.[20] On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question "did you kill the victim" the conduct is testimonial, it is the same as saying "yes I did" and Miranda would apply.[21]

Third, the evidence must have been obtained while the suspect was in custody. This limitation follows from the fact that Miranda's purpose is to protect suspects from the compulsion inherent in the police dominated atmosphere attendant to arrest. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent "associated with a formal arrest."[22] A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. Telling a person he is "under arrest" is sufficient to satisfy this requirement even though the person may not be otherwise physically restrained.[23] Absent a formal arrest, the issue is whether a reasonable person in the suspect's position would have believed that he was under "full custodial" arrest.[24] Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street—a Terry stop.[25] Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered actual arrest or its functional equivalent for purposes of the Fifth Amendment.[26] The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave.[27]

Fourth, the evidence must have been the product of interrogation. A defendant who seeks to challenge the admissibility of a statement under Miranda must show that the statement was "prompted by police conduct that constituted 'interrogation'".[28] A volunteered statement by a person in custody does not implicate Miranda. In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and "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." Thus, a practice that the police "should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation." For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are implicitly communicating a question: "How do you explain this?"[29] On the other hand, "unforeseeable results of [police] words or actions" do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, "I couldn't do that even if I was sober", would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.[30]

Fifth, the interrogation must have been conducted by state-agents. To establish a violation of the defendant's Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent.[31] If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that they are being questioned by the police. Private security guards and "private" police present special problems. They are generally not regarded as state-agents. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda's safeguards since an officer is considered to be "on duty" at all times.[32]

Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.

Assuming that the six factors are present and Miranda applies, the statement will be subject to suppression unless the prosecution can demonstrate (1) that the suspect was advised of their Miranda rights and (2) that the suspect voluntarily waived those rights or that the circumstances fit an exception to the Miranda rule. The defendant may also be able to challenge the admissibility of the statement under provisions of state constitutions and state criminal procedure statutes.[33]

The Miranda warnings

The suspect must be properly advised of their Miranda rights—namely, the Fifth Amendment right against compelled self incrimination (and, in furtherance of this right, the right to counsel while in custody). The Fifth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent—the right to refuse to answer questions or to otherwise communicate information. Therefore, before any interrogation begins, the police must advise the suspect that they have (1) the right to remain silent; (2) that anything the suspect says can be used against him; (3) that the suspect has the right to have an attorney present before and during the questioning and (4) the suspect has the right to have a "free" attorney appointed to represent them before and during the questioning if the suspect cannot afford to hire an attorney.[34] There is no precise language that must be used in advising a suspect of their Miranda rights.[35] The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect.[36] The suspect may be advised of their rights orally or in writing.[37]

The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights. For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights. For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely a right to have a lawyer present while the suspect is being questioned. The right to counsel includes:

  • the right to talk to a lawyer before deciding whether to talk to police,
  • if the defendant decides to talk to the police, the right to consult with a lawyer before being interrogated,
  • the right to answer police only through an attorney.[38]

It is important to reemphasize that the duty to warn only arose when police officers conduct custodial interrogations. The constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation, Custody and interrogation are the events that trigger the duty to warn.

Waiver

Simply advising the suspect of their rights does not fully comply with the Miranda rule. The suspect must also voluntarily waive their Miranda rights before questioning can proceed.[39] An express waiver is not necessary.[40] However, most law enforcement agencies use written waiver forms. These include questions designed to establish that the suspect expressly waived their rights. Typical waiver questions are (1) "Do you understand each of these rights?" and (2) "Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?"

The waiver must be "knowing and intelligent" and it must be "voluntary." These are separate requirements. To satisfy the first requirement the state must show that the suspect generally understood their rights (right to remain silent and right to counsel) and the consequences of forgoing those rights (that anything they said could be used against them in court). To show that the waiver was "voluntary" the state must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct. The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances. As noted previously, courts traditionally focused on two categories of factors in making this determination: (1) the personal characteristics of the suspect and (2) the circumstances attendant to the waiver. However, the Supreme Court significantly altered the voluntariness standard in the case of Colorado v. Connelly.[41] In Connelly the Court held that "Coercive police activity is a necessary predicate to a finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."[42] The Court has applied this same standard of voluntariness is determining whether a waiver of a suspect's Fifth Amendment Miranda rights was voluntary. Thus, a waiver of Miranda rights is voluntary unless the defendant can show that their decision to waive their rights and speak to the police was the product of police misconduct and coercion that overcame the defendant's free will. After Connelly the traditional totality of circumstances analysis is not even reached unless the defendant can first show such coercion by the police.[43] Under Connelly, a suspect decisions need not be the product of rational deliberations.[44] In addition to showing that the waiver was "voluntary", the prosecution must also show that the waiver was "knowing" and "intelligent". Essentially this means the prosecution must prove that the suspect had a basic understanding of their rights and an appreciation of the consequences of foregoing those rights. The focus of the analysis is directly on the personal characteristics of the suspect. If the suspect was under the influence of alcohol or drugs, or suffered from an emotional or mental condition that substantially impaired their capacity to make rational decisions, the courts may well decide that the suspect's waiver was not knowing and intelligent.

A waiver must also be clear and unequivocal. An equivocal statement is ineffective as a waiver and the police may not proceed with the interrogation until the suspect's intentions are made clear. The requirement that a waiver be unequivocal must be distinguished from situations in which the suspect made an equivocal assertion of their Miranda rights after the interrogation began. Any post-waiver assertion of a suspect's Miranda rights must be clear and unequivocal.[45] Any ambiguity or equivocation will be ineffective. If the suspect's assertion is ambiguous, the interrogating officers are permitted to ask questions to clarify the suspect's intentions, although they are not required to.[46] In other words, if a suspect's assertion is ambiguous, the police may either attempt to clarify the suspect's intentions or they may simply ignore the ineffective assertion and continue with the interrogation.[47] The timing of the assertion is significant. Requesting an attorney prior to arrest is of no consequence because Miranda applies only to custodial interrogations. The police may simply ignore the request and continue with the questioning; however, the suspect is also free to leave.

Assertion

If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation.[48] In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between termination of original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter.[49] The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant of his own volition contacts the police.[50] If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert right.

Exceptions

Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule.[51] The three exceptions are (1) the routine booking question exception[52] (2) the jail house informant exception and (3) the public safety exception.[53] Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered "interrogation" under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule. The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information.[54] The window of opportunity for the exception is small. Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited.[55] The public safety exception applies where circumstances present a clear and present danger to the public's safety and the officers have reason to believe that the suspect has information that can end the emergency.[56]

Consequences of violation

Assuming that a Miranda violation occurred — the six factors are present and no exception applies — the statement will be subject to suppression under the Miranda exclusionary rule.[57] That is, if the defendant objects or files a motion to suppress, the exclusionary rule would prohibit the prosecution from offering the statement as proof of guilt. However, the statement can be used to impeach the defendant's testimony.[58] Further, the fruit of the poisonous tree doctrine does not apply.[59] Since the fruit of the poisonous tree doctrine does not apply to Miranda violations, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play. Therefore, derivative evidence would be fully admissible. For example, the police continue with a custodial interrogation after the suspect has asserted his right to silence. During his post-assertion statement the suspect tells the police the location of the gun he used in the murder. Following this information the police find the gun. Forensic testing identify the gun as the murder weapon and fingerprints lifted from the gun match the suspect's. The contents of the Miranda defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence would not be subject to suppression.

Procedural requirements

Although the rules vary by jurisdiction, generally a person who wishes to contest the admissibility of evidence[60] on the grounds that it was obtained in violation of his constitutional rights[61] must comply with the following procedural requirements:

  1. The defendant must file a motion.[62]
  2. The motion must be in writing.[63]
  3. The motion must be filed before trial.[64]
  4. The motion must allege the factual and legal grounds on which the defendant seeks suppression of evidence.[65]
  5. The motion must be supported by affidavits or other documentary evidence.[66]
  6. The motion must be served on the state.[62]

Failure to comply with a procedural requirement may result in summary dismissal of the motion.[62] If the defendant meets the procedural requirement the motion will normally be considered by the judge outside the presence of the jury. The judge hears evidence, determines the facts, makes conclusions of law and enters an order allowing or denying the motion.[67]

Related doctrines

In addition to Miranda confession may be challenged under the Massiah Doctrine, the Voluntariness Standard, Provisions of Federal and State rules of criminal procedure and State Constitutional provisions.

Massiah Doctrine

The Massiah Doctrine prohibits the admission of a confession obtained in violation of the defendant’s Sixth Amendment right to counsel. Specifically, the Massiah rule applies to the use of testimonial evidence in criminal proceedings deliberately elicited by the police from a defendant after formal charges have been filed. The events that trigger the sixth amendment safeguards under Massiah are (1) the commencement of adversarial criminal proceedings and (2) deliberate elicitation of information from the defendant by governmental agents.

The Sixth Amendment guarantees a defendant a right to counsel in all criminal prosecutions. The purposes of the Sixth Amendment right to counsel are to protect a defendant’s right to a fair trial and to assure that our adversarial system of justice functions properly by providing competent counsel as an advocate for the defendant in his contest against the “prosecutorial forces” of the state.

The Sixth Amendment right “attaches” once the government has committed itself to the prosecution of the case by the initiation of adversarial judicial proceedings "by way of formal charge, preliminary hearing, indictment, information or arraignment,".[68] Determining whether a particular event or proceeding constitutes the commencement of adversarial criminal proceedings requires both an examination of the rules of criminal procedure for the jurisdiction in which the crime is charged and the Supreme Courts cases dealing with the issue of when formal prosecution begins.[69] Once adversarial criminal proceedings commence the right to counsel applies to all critical stages of the prosecution and investigation. A critical stage is "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." [70]

Government attempts to obtain incriminating statement related to the offense charged from the defendant by overt interrogation or surreptitious means is a critical stage and any information thus obtained is subject to suppression unless the government can show that an attorney was present or the defendant knowingly, voluntarily and intelligently waived his right to counsel.[71]

Deliberate elicitation is defined as the intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant.[72] Clearly express questioning (interrogation) would qualify but the concept also extends to surreptitious attempts to acquire information from the defendant through the use of undercover agents or paid informants.[73]

The definition of "deliberate elicitation" is not the same as the definition of "interrogation" under the Miranda rule. Miranda interrogation includes express questioning and any actions or statements that an officer would reasonably foresee as likely to cause an incriminating response. Massiah applies to express questioning and any attempt to deliberately and intentionally obtain incriminating information from the defendant regarding the crime charged. The difference is purposeful creation of an environment likely to produce incriminating information (Massiah) and action likely to induce an incriminating response even if that was not the officer's purpose or intent (Miranda).

The Sixth Amendment right to counsel is offense specific — the right only applies to post commencement attempts to obtain information relating to the crime charged.[74] The right does not extend to uncharged offenses if factually related to the charged crime.[75]

As noted, information obtained in violation of the defendant's Sixth Amendment right to counsel is subject to suppression unless the government can establish that the defendant waived his right to counsel. The waiver must be knowing, intelligent and voluntary.[76] A valid Miranda waiver operates as a wavier of Sixth Amendment right.

Miranda and Massiah compared

1. Constitutional Basis – Miranda is based on the Sixth Amendment right to counsel and the Fifth Amendment right to remain silent. Massiah is based on the Sixth Amendment right to counsel.

2. Attachment – Miranda: Custody + Interrogation. (Charging status irrelevant) Massiah: Formally Charged + Deliberate Elicitation. (Custodial status irrelevant)

3. Scope a. Miranda applies to custodial interrogation by known governmental agents. Surreptitious acquisition of incriminating information allowed. a. Massiah applies to overt and surreptitious interrogation.

b. Miranda is not offense specific.[77] b. Massiah is offense specific.[78]

c. Miranda: interrogation + "functional equivalent" c. Massiah: interrogation + "deliberate elicitation"

4. Waiver: Both Miranda and Massiah rights may be waived.

5. Assertion: In each case, the assertion must be clear and unequivocal. The effects of assertion are not identical. For purposes of Miranda, the police must immediately cease the interrogation and cannot resume interrogating the defendant about any offense charged or uncharged unless counsel is present or defendant initiates contact for purposes of resuming interrogation and valid waiver obtained. Because Massiah is offense-specific, an assertion of the sixth amendment right to counsel requires the police to cease interrogating the defendant about any charged offense. Apparently the police could continue questioning the defendant about uncharged crimes assuming that the defendant was not in custody. The defendant's remedy would be to leave or to refuse to answer questions.[79]

6. Remedy for violation: The remedy for violation of fifth and sixth amendment rights to counsel are identical. The statements and testimonial information is subject to suppression. Derivative evidence is not subject to suppression under Miranda — fruit of poisonous tree doctrine may apply to Massiah violation.[80] Both Miranda and Massiah defective statements can be used for impeachment purposes.

7. Exceptions: The primary exceptions to Miranda are (1) the routine booking questions exception (2) the jail house informant exception and (3) the public safety exception. In Moulton v. Maine the Supreme Court refused to recognize a public safety exception to the Massiah rule.[81] Massiah allows for the use of jail house informants provided the informants serve merely as "passive listeners."[82]

The voluntariness standard

The voluntariness standard applies to all police interrogations regardless of the custodial status of the suspect and regardless of whether the suspect has been formally charged. The remedy for a violation of the standard is complete suppression of the statement and any evidence derived from the statement. The statement cannot be used as either substantive evidence of guilt or to impeach the defendant's testimony.[83] The reason for the strictness is the common law's aversion to the use of coerced confessions because of their inherent unreliability. Further the rights to be free from coerced confession cannot be waived nor is it necessary that the victim of coercive police conduct assert his right. In considering the voluntariness standard one must consider the Supreme Court's decision in Colorado v. Connelly.[84] Although federal courts' application of the Connelly rule has been inconsistent and state courts have often failed to appreciate the consequences of the case, Connelly clearly marked a significant change in the application of the voluntariness standard. Before Connelly the test was whether the confession was voluntary considering the totality of the circumstances.[85] "Voluntary" carried its everyday meaning: the confession had to be a product of the exercise of the defendant's free will rather than police coercion.[86] After Connelly the totality of circumstances test is not even triggered unless the defendant can show coercive police conduct.[87] Questions of free will and rational decision making are irrelevant to a due process claim unless police misconduct existed and a causal connection can be shown between the misconduct and the confession.[88]

State constitutional challenges

Every state constitution has articles and provision guaranteeing individual rights.[89] In most cases the subject matter is similar to the federal bill of rights.[90] Most state courts interpretation of their constitution is consistent with the interpretation federal cout's of analogous provisions of the federal constitution. With regard to Miranda issues, state courts have exhibited significant resistance to incorporating into their state jurisprudence some of the limitations on the Miranda rule that have been created by the federal courts.[91] As a consequence a defendant may be able to circumvent the federal limitation on the Miranda rule and successfully challenge the admissibility under state constitutional provisions. Practically every aspect of the Miranda rule has drawn state court criticism. However the primary point of contention involve the following limitations on the scope of the Miranda rule: (1) the Harris exception[92] (2) the Burbine rule[93] and (3) the Fare rule.[94]

State statutory challenges

In addition to constitutionally based challenge, states permit a defendant to challenge the admissibility of a confession on the grounds that the confession was obtained in violation of a defendant's statutory rights. For example, North Carolina Criminal Procedure Act permits a defendant to move to suppress evidence obtained as a result of a “substantial” violation of the provision of the North Carolina Rules of Criminal Procedure.

Analyzing Miranda

Analyzing Miranda

  1. Was the defendant interrogated? a. Was the defendant questioned? OR b. Did the interrogators engage in conduct reasonably likely to elicit an incriminating response? Most states followed the federal definition of interrogation Innis rule If “Yes” go to 2; If “No”, Miranda does not apply.
  2. Was the interrogation conducted by government agents? If “Yes” go to 3; If “No”, Miranda does not apply.
  3. Did the government agents obtain testimonial evidence as a result of the interrogation?If “Yes” go to 4; If “No”, Miranda does not apply.
  4. Was the defendant in custody during the interrogation? a. Was the defendant under arrest? OR b. Would a reasonable person in the defendant’s position believe that she was under arrest?If “Yes” go to 5; If “No”, Miranda does not apply.
  5. Before any custodial interrogation began did the government agents properly advise the defendant of her Miranda rights?If “Yes” go to 6; If “No”, go to 18..
  6. Did the defendant waive her rights?If “Yes” go to 7; If “No”, go to 18.
  7. Was the waiver “knowing and intelligent”? If “Yes” go to 8; If “No”, go to 18.
  8. Was the waiver “involuntary” a. Was there “police misconduct”? AND b. Did the police misconduct cause the suspect to waive his rights?f “Yes” go to 18; If “No”, go to 9.
  9. Did the defendant assert either or both of her rights?If “Yes” go to 10; If “No”, go to 18.
  10. Did the defendant assert her right to remain silent?f “Yes” go to 11; If “No”, go to 13.
  11. Did the police immediately cease all interrogation?If “Yes” go to 12; If “No”, go to 18.
  12. Did the police scrupulously honor the defendant's assertion of his right to remain silent?If “Yes” go to 10; If “No”, go to 18.
  13. Did the defendant assert her right to counsel?If “Yes” go to 14; If “No”, go to 18.
  14. Did the police immediately cease all interrogation?f “Yes” go to 13; If “No”, go to 18.
  15. Did the police resume the interrogation?f “Yes” go to 16; If “No”, Miranda does not apply.
  16. Did the defendant re-initiate conduct with the police before the interrogation resumed?If “Yes” go to 17; If “No”, go to 18.
  17. Before resuming the custodial interrogation did the police re-advise defendant of her Miranda rights?f “Yes” go Evidence asmissible; If “No”, go to 18.'
  18. Does an exception apply? a. Routine Booking Questions? OR b. Jail House Informant? OR c. Public Safety?If “Yes” or “No” go to 19.
  19. Was the statement “voluntary” under the due process clause? a. Was there “police misconduct”? b. Did the police misconduct cause the suspect to make a statement? If Yes the statement is admissible for any purpose. If no go to 20.
  20. Was the statement “involuntary” under the totality of circumstances test? if yes the statement is not admissible for any purpose. If no the statement is admissible for any purpose.

(Note: if 19a or 19b is answered "NO" that ends the due process analysis - the totality of circumstances test is not reached)

Confusion regarding use

Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure—in the 2000 Dickerson decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture."[95]

While arrests and interrogations can legally occur without the Miranda warning being given, this procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial. (However, pursuant to the majority opinion in United States v. Patane, physical evidence obtained as a result of pre-Miranda statements may still be admitted.)

In some jurisdictions,[where?] a detention differs at law from an arrest, and police are not required to give the Miranda warning until the person is arrested for a crime. In those situations, a person's statements made to police are generally admissible even though the person was not advised of their rights. Similarly, statements made while an arrest is in progress before the Miranda warning was given or completed are also generally admissible.

Because Miranda applies only to custodial interrogations, it does not protect detainees from standard booking questions such as name and address. Because it is a protective measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood without a warrant from persons suspected of driving under the influence of alcohol. (Such evidence may be self-incriminatory, but are not considered statements of self-incrimination.)

If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that they may be charged with while in custody. For example: a subject is arrested, charged with robbery, and is held in county jail awaiting trial. He invoked his Miranda rights on the robbery case. In custody he is involved in a fight where another inmate is badly hurt. He speaks to the custodial staff regarding the fight without invoking Miranda. It is unclear if this statement is admissible because of the original Miranda statement.

Many police departments give special training to interrogators with regard to the Miranda warning; specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer is allowed, before asking the suspect a question, to speak at length about evidence collected, witness statements, etc. The officer will then ask if the suspect wishes to talk, and the suspect is then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly taught is never to ask a question; the officer may simply sit the suspect down in an interrogation room, sit across from him and do paperwork, and wait for the suspect to begin talking.[96] These tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are condemned by legal rights groups as deceptive.[citation needed]

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation.[97] Therefore, for Miranda to apply six factors must be present:

  1. evidence must have been gathered
  2. the evidence must be testimonial[10]
  3. the evidence must have been obtained while the suspect was in custody[98]
  4. the evidence must have been the product of interrogation[99]
  5. the interrogation must have been conducted by state-agents[100] and
  6. the evidence must be offered by the state during a criminal prosecution.[101]

The first requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no importance. Second, Miranda applies only to “testimonial” evidence as that term is defined under the Fifth Amendment.[10] For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.[102][103] The Miranda rule does not prohibit compelling a person to engage in conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving handwriting[104] or voice exemplars, fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause. On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question "did you commit the crime" the conduct is testimonial, it is the same as saying "yes I did" and Miranda would apply.[105]

Third, the evidence must have been obtained while the suspect was in custody. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent "associated with a formal arrest."[106] A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. In the absence of a formal arrest, the issue is whether a reasonable person in the suspect’s position would have believed that he was under arrest. Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street.[107] Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered custody for purposes of the Fifth Amendment.[108] The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave.[109] Generally, incarceration or imprisonment constitutes custody. However, Miranda is not offense-specific. Therefore, a person who is incarcerated could not be interrogated about any offense regardless of whether the questioning related to the offense for which she is incarcerated or any other offense absent a valid Miranda waiver.

Fourth, the evidence must have been the product of interrogation. A volunteered statement by a person in custody does not implicate Miranda. In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and "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." Thus, a practice that the police "should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation." For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are essentially "saying", "how do you explain this?"[110] On the other hand, "unforeseeable results of [police] words or actions" do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, "I couldn't do that even if I was sober", would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.[111]

Fifth, the interrogation must have been conducted by state-agents. To establish a violation of the defendant’s Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent.[112] If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that she is being questioned by the police. Private security guards and "private" police present special problems. They are generally not regarded as state-agents, unless they are deputized. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda’s safeguards since an officer is considered to be “on duty” at all times.[113]

Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.

If all six factors are present, then Miranda applies and any testimonial evidence that was the product of custodial interrogation is subject to suppression under the Fifth Amendment exclusionary rule unless the interrogation was preceded by a valid Miranda waiver or an exception to the Miranda rule of exclusionary rules applies.

A valid Miranda waiver consists of properly advising the suspect of her Miranda rights and obtaining a waiver of those rights. (The rights, the waiver, and typical phrasings are explained above this section.)

It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. “Aliens receive constitutional protections when they have come within the territory of the United States and [have] developed substantial connections with this country” [114]

The Fifth Amendment right to counsel, a component of the Miranda Rule, is different from the Sixth Amendment right to counsel. In the context of the law of confessions the Sixth Amendment right to counsel is defined by the Massiah Doctrine.[115]

Exemption for interrogations conducted by undercover agents

In Illinois v. Perkins, 496 U.S. 292 (1990), the United States Supreme Court held that undercover officers do not have to give suspects a Miranda warning prior to asking questions that may elicit incriminating responses. In this case, an undercover agent posed as an inmate and carried on a thirty-five minute conversation with another inmate that he suspected of committing a murder that was being investigated. During this conversation, the suspect implicated himself in the murder that the undercover agent was investigating.[116]

The Supreme Court came to this conclusion despite the government's admission that a custodial interrogation had been conducted by a government agent. Obviously, any undercover agent's cover would be blown if he/she ever issued a Miranda warning.

Report of warnings being given to detainees in Afghanistan

Beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by the FBI, according to Congressman Michael Rogers of Michigan, who claims to have witnessed this himself. According to the Justice Department, "There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseasat both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees." [117][118]

Equivalent rights in other countries

Australia

Within Australia, the right to silence derives from common law. The uniform position amongst the states is that neither the judge nor the jury is permitted to draw any adverse inference about the defendant's culpability, where he/she does not answer police questions [RPS v R (2000) 199 CLR 620...overturning Jones v Dunkel [1959] 101 CLR 298]. While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).

It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)

The current caution used in New South Wales is:

You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?

Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, the court is likely to exclude that evidence to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police, and who is fitted with a listening device, that evidence would be admitted.[Queen v Swaffield; Pavic v The Queen (1998) 192 CLR]

Australian research indicates that very few suspects actually refuse to speak. Stevenson's research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the District Court of New South Wales in Sydney remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.

A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994.[119][120][121] All states have rejected such change. As the NSW Report said:

It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption.

It is also important to note that anything said to an Australian police member should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and where the circumstances, on the balance of probabilities, justify the reception of the evidence, S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not invent a false, verbal confession, never made by an accused (a practice called "verballing" an accused).

Bangladesh

Article 33 of the Constitution of Bangladesh compels arresting authorities to inform the accused of the accusations brought against him before he is detained,[122] and that the detained must be presented to the nearest court within 24 hours.[122] Exceptions to this rule include preventive detention and the arrest of an enemy alien.[122] Right to counsel is an inalienable right, but the arresting officer need not explicitly state it to the detained.

Article 35(4) of the Constitution protects individuals from self-implication.[122] Therefore, Miranda warnings must be read out to the detained if he wants to voluntarily confess to the charges; in this case, a Magistrate must read and explain the confessor's right to silence and protection from self-implication, and attest to the fact that the rights of the confessor were read out to him and explained, and the confessor waived his right of silence.[123]

Canada

In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:

  • To be informed promptly of the reasons therefor
  • To retain and instruct counsel without delay and be informed of that right
  • To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

The Canadian Charter warning reads (varies by police service): "You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" (See: R. v. Hebert [1990] 2 S.C.R. 151)

A more detailed version: "I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence."

Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - Protection against Self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.

While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have counsel present during the course of an interrogation. Once a suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have counsel present during the questioning. Also, in Canada even if the suspect emphatically asserts his decision to remain silent, the police may continue to interrogate him. Although this may give the suspect the impression that his claim of the right to silence is meaningless or that he has no such right, it is perfectly legal. In R. v. Singh (163 C.R.R. (2d) 280), the suspect invoked his right to remain silent 18 times and the police nevertheless continued to question him after each assertion of his right, but the Supreme Court of Canada found this consistent with Canada's Charter rights protections.

European Union

Within the European Union, a gradual process of harmonising the laws of individual countries has resulted in calls for a common letter of rights that would apply to all EU citizens.[124] The proposed common standard would protect:

  • access to legal advice;
  • translation assistance as needed;
  • protection for those unable to follow the proceedings; and
  • consular assistance for foreign detainees

These would be contained in a letter of rights—a printed document given to suspects after they are detained and before interrogation.[125] The right to silence does not fall under the proposed common standard. This has been criticised on the grounds that the letter of rights would leave out what some people consider the most important right, and that this would confuse the accused rather than help. Other obstacles to its enactment include the anti-terrorism laws of certain EU members, which conflict with these proposed rights.

England and Wales

Warnings regarding the right against self-incrimination may have originated in England and Wales. In 1912, the judges of the Kings Bench issued the Judges Rules. These provided that, when a police member had admissible evidence to suspect a person of an offence and wished to question that suspect about an offence, the officer should first caution the person that he was entitled to remain silent. The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in Ibrahim v R [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if made in the exercise of a free choice about whether to speak or remain silent:

In R v Leckey (1943) CAR 128 the Court of Criminal Appeal said:

... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril.

Therefore a caution of the form of:

You have the right to remain silent, but anything you do say will be taken down and may be used in evidence.

was used. The Criminal Justice and Public Order Act 1994 amended the right to silence by allowing adverse inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (see right to silence in England and Wales). In other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:

You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

If questioning is forthcoming, "when questioned" may be substituted with "now". In cases in which the suspect has clearly nothing to gain by failing to remain silent:

Anything you do say may, and will, be given in evidence.

Or:

You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.

[citation needed]

or even (in circumstances where no adverse inference can be drawn from silence)

You do not have to say anything, but anything you do say may be given in evidence.

The caution in England and Wales does not explicitly require that a suspect affirm they understand the caution.[citation needed] In addition the caution need not be explicitly stated if it is obvious that the suspect is already aware of his rights, for example if he is a police officer, as long as the suspect is definitely aware that he is under caution[citation needed]. Furthermore the invoking of that right does not prohibit officers from asking further questions.

France

In France, any person brought in police custody ("Garde à vue") must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, and that of discussing the case with an attorney.

Since 15th of April 2011[126], any person held by the police has new rights:
Art.3 :
The person is immediately informed by a police officer, or in the presence of one, in a language that he can understand, that:
- he has the right to ask assistance of a lawyer (63-3-1 à 63-4-3 of Penal Procedure code);
- he has the right, after answering questions about his identity, to answer other questions or to remain silent.
Art 6:
From the beginning of custody, the person can ask for the assistance of a lawyer.
Art 7:
The conversation with the lawyer has to remain confidential.
Art 8:
The lawyer has the right to access some of the documents related to the procedure and to be present at any police interview of the suspect made by the police.

In cases of terrorism and narcotrafficking, however, the individual may not consult with an attorney until the seventy-second hour of detention. Further, criminal suspects in garde à vue (i.e., custody) do not have to be informed of their right to remain silent.[127]

Witnesses under indictment (or who are cited as suspects) cannot be heard under oath, and thus do not risk prosecution for perjury. Such witnesses must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects brought before a Juge d'instruction must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.

Germany

According to § 136 StPO (Strafprozessordnung, or "Criminal Procedure Code"):

Before any interrogation begins a suspect, arrested or not, must be informed:

  • Of the crime for which he is charged
  • About his right to remain silent
  • About his right to consult an attorney before the interview
  • About his right to name any evidence in his favour

Though the courts may not draw inference from the complete silence of the accused in any stage of criminal proceedings, inference may be drawn if the accused is selectively silent.

Foreign suspects have the following additional rights:

  • Translation assistance, and
  • Consular assistance

Spain

In Spain, according to the Ley de Enjuiciamiento Criminal (Penal procedure code)(article 520.2), the detainee has to be informed about the charges that lead to his detention, as well as the motives for the deprivation of liberty. She/he must also to be informed about the following rights:

  • Right to remain silent, to answer only some questions asked or to express their wish to declare only in front of a judge.
  • Right not to give evidence against themselves, as well as not to confess their guilt.
  • Right to legal representation by a private or state-funded attorney, that will assist them during the hearings and procedures.
  • Right to inform a member of their family or the person they wish about the fact of the detention itself as well as their location at every moment of the proceedings. Foreigners have the right to contact their consular mission in Spain.
  • Right to request the services of an interpreter for free if the foreigner doesn't speak Spanish.
  • Right to undergo a medical examination by the forensic doctor.

Hong Kong

The right to silence is protected according to common law. The "Rules and Directions for the Questioning of Suspects and the Taking of Statements" (Rules and Directions), promulgated by the then Attorney General in 1992, stipulate that the caution to be used to remind a suspect of his right to remain silent when he is questioned. The statement are in English, Cantonese and Mandarin Chinese[128]:

English:You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.

Cantonese:唔係是必要你講嘅,除非你自己想講喇,但係你所講嘅嘢,可能用筆寫低及用嚟做證供嘅 。

Mandarin Chinese:你不一定要說話,除非你有話要說。但是,你說的話可能會寫下來並用作證據。

Israel

In Israel, according to Section 28 of the Criminal Procedure Law (Enforcement Authority - Arrests) 1996, an officer interrogating a suspect must duly warn him first that he does not have to say any thing that may incriminate him, and that any thing he will say may be used against him. According to Israeli law, the exercise of the right to remain silent may be considered as supplemental evidence in most cases, and this fact also needs to be explained to the suspect.

The exact warning is: "I am a police officer: [name and rank] inform you that you are suspected of: [the crimes] you do not have to say anything; whatever you say might be used as evidence against you; refraining from answering questions might strengthen the evidence against you."

Israeli law has not adopted the "Fruits of the Poisoned Tree" doctrine, and flaws in the process of collecting it affect only the weight of tainted evidence. However, in Criminal Appeal 5121/98, Issaharov v. The Military Prosecutor, a court of nine ruled that the defendant's confession, given without proper warning regarding the right of representation, was not considered as given with consent and free will, and was not accepted by the court.

New Zealand

Within New Zealand, the caution is mandated by Section 23 of the Bill of Rights Act 1990, and a practice note on police questioning issued in 2006, by then Chief Justice Sian Elias. The obligation to caution arises when:

  • a suspect is in custody;
  • when police have enough evidence to believe the person has committed an offence;
  • when detained, such as for the execution of a statutory or common law power of search or in the execution of drink driving investigations;
  • other situations as dictated by statute or case law.

The caution to be given is:

You have the right to consult and instruct a lawyer without delay and you have the right not to make a statement but anything you do say may harm your defence in a court of law. If a suspect cannot afford a lawyer then s/he has the right to have one appointed for them by the police without charge.

Philippines

In the Philippines, the Philippine National Police has rules in arresting that oblige the officer to give the Miranda Warnings. The following Tagalog phrases are near-direct translations of the English.

  • "Ikaw ay may karápatang manahímik." ("You have the right to be silent.")
  • "Ang iyong mga sasabíhin ay maaáring gamitin bílang patunay lában sa iyo sa kórte." ("The things you will say may be used as evidence against you in court.")
  • "Ikaw ay may karápatang kumuhâ ng isáng abogádo. Kung ikaw ay hindî makakuhâ ng abogádo, ang kórte ang magtatakdâ para sa iyo." ("You have the right to obtain a lawyer. If you cannot obtain a lawyer, the court [shall be the one to] appoint [one] for you.")

Switzerland

Article 158 of the unified Swiss code of criminal procedure, which is to enter into force by 2011,[129] establishes that the results of an interrogation may not be used unless the accused has been informed that

  • he/she is the subject of a criminal investigation for some specific infractions,
  • he/she has the right to remain silent and not to cooperate with police,
  • he/she has the right to legal representation by a private or state-funded attorney, and
  • he/she has the right to request the services of an interpreter.

The cantonal codes of procedure, which remain in force until 2011, generally contain similar provisions.

Thailand

Sections 83 and 84 of the Thai Code of Criminal Procedure, which have been amended by the Act Amending the Criminal Procedure Code (No. 22), BE 2547 (2004), require the police officers who conduct the arrests to inform the arrestees of the Miranda rights.

Paragraph two of section 83 reads:[130]

"Where an arrest is made by an officer, the officer shall inform the arrestee of the charge and, if any, produce the warrant of arrest to him. The officer shall also enlighten the arrestee that the latter has the right to remain silent, that any statement of the latter may be used in evidence during the trial and that the latter is entitled to meet with and seek advice of a counsel or person to become his counsel. If the arrestee wishes to inform the arrest to his relative or a person in whom he reposes, and such information is not inconvenient and would not obstruct the arrest or restraint proceedings or endanger any person, the officer shall permit the arrest to fulfill his wish as much as suitable according to the circumstances. In this respect, the officer shall make a record of such arrest."

While paragraph one of section 84 prescribes:[131]

An officer or private citizen who conducts an arrest shall bring the arrestee to the office of a judicial police officer under section 83 without delay. At that place, the former shall deliver the latter to an administrative or police officer in charge of the said office in order to perform the followings:

(1) In cases the arrest is conducted by the officer, such officer shall inform the arrestee of the charge and the details as to the grounds for arrest. If any, the warrant of arrest shall be produced and read to the arrestee while a copy of the record of arrest shall be given to him also.

(2) In cases the arrest is conducted by the private citizen, the administrative or police officer to whom the arrestee is delivered shall record the name, profession and place of residence of the private citizen as well as the information and circumstances as to such arrest and require the private citizen to set his hand to the record. The officer shall then inform the arrest about the charge and the details as to the grounds for arrest, and that he has the right to remain silent and his statement may be used in evidence during the trial.

Ukraine

Section 4 of Article 29 of Constitution of Ukraine[132] reads:

Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender.

The Criminal Process Code of Ukraine has some regulations on how the rights of suspects and accused. Section 2 of Article 21[133] reads:

Inquirer, investigator, prosecutor, judge, and court, before the first examination of the suspect, accused, and defendant, are required to advice them of the right to have a defense counsel and draw up an appropriate record thereon, as well as provide the suspect, accused, and defendant the possibility to defend themselves with legal remedies from the charge brought and ensure protection of their personal and property rights.

Article 43-1, Section 1 gives the following definition of "suspect"[133]:

The following person is considered to be a suspect: 1) a person apprehended on the suspicion of having committed a crime; 2) a person in whose respect a measure of restraint has been imposed before the decision to prosecute him/her has been made.

Consequently, the list of suspect's rights follows[133]:

The suspect has the right to: know what he/she is suspected of; give testimonies or refuse testifying and answering questions; have a defense counsel and meet him/her before the first examination; produce evidence; submit motions and propose disqualifications; request that the court or prosecutor verify legality of the apprehension; submit complaints against actions and decisions of the officer who conducts operational-detective activities, inquirer, investigator, and prosecutor , and, with appropriate grounds present, have his/her security ensured. The fact that the suspect was advised of his/her rights is entered into the record of apprehension or decision to impose a measure of restraint.

Article 53 contains the following regulation[133]:

Court, prosecutor, investigator and the inquirer are required to advice participants to the case of their rights and to ensure the possibility to enjoy such rights.

However, there are no clear regulations on how the rights should be announced. This is commonly made by reading them out when announcing the decision on instituting criminal proceedings or arrest and then requiring a suspect or arrestee to sign the list of these rights.

See also


Notes

  1. ^ The 2004 United States Supreme Court ruling Hiibel v. Sixth Judicial District Court of Nevada upheld state "stop-and-identify" laws, allowing police in those jurisdictions engaging in a Terry stop to require biographical information such as name and address, without arresting suspects or providing them Miranda warnings.

References

  1. ^ "Mirandize". The American Heritage Dictionary of the English Language. Houghton Mifflin Company. 2004. http://dictionary.reference.com/browse/mirandize. Retrieved 2007-09-18. 
  2. ^ California v. Prysock, 453 U.S. 355 (1981).
  3. ^ Alaska State Troopers.
  4. ^ [1]
  5. ^ Article 31.
  6. ^ "Deaf Murderers: Clinical and Forensic Issues", Behavioural Sciences and the Law 17: 495-516 (1999).
  7. ^ a b Stigall, Dan E., "Counterterrorism and the Comparative Law of Investigative Detention" (Cambria 2009)
  8. ^ New York v. Quarles, 467 U.S. 649 (1984).
  9. ^ The Miranda rule is not an element of a valid arrest. The Fifth Amendment does not require an officer to give an arrestee his Miranda rights as part of the arrest procedure. The Miranda rights are triggered by custody and interrogation. At the time the Supreme Court decided Miranda the Fifth Amendment had already been applied to the states in Malloy v. Hogan, 378 U.S. 1 (1964)
  10. ^ a b c d Pennsylvania v. Muniz, 496 U.S. 582 (1990)
  11. ^ Miranda v. Arizona, 384 U.S. 436 (1966); California v. Hodari D., 499 U.S. 621, 626 (1991)
  12. ^ Rhode Island v. Innis, 446 U.S. 291 (1980)
  13. ^ Escobedo v. Illinois, 378 U.S. 478 (1964); Illinois v. Perkins, 110 Ct. 2394 (1990). See also Latzer, State Constitutions and Criminal Justice, (Greenwood Press 1991) citing Walter v. United States, 447 U.S. 649 (1980)
  14. ^ The Fifth Amendment applies only to compelled statements used in criminal proceedings
  15. ^ Note that post warning silence cannot be used as evidence of guilt or to impeach the defendant's trial testimony. Doyle v. Ohio, 426 U.S. 610 (1976). Nor can the state offer evidence that the defendant asserted his rights—that he "lawyered up" or refused to talk.
  16. ^ Doe v. United States, 487 U.S. 201 (1988)
  17. ^ See also United States v. Wade, 388 U.S. 218 (1967)
  18. ^ See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis)331 n. 203 citing United States v. Daughenbaugh, 49 F.3d 171, 173 (5th Cir. 1995)
  19. ^ United States v. Mitchell, 556 F.2d 382 (6th Cir. 1977)
  20. ^ Pennsylvania v. Muniz, 496 U.S 582 (1990).
  21. ^ See Schmerber v. California 384 U.S. 757, 761 n. 5 (1966)
  22. ^ Stansbury v. California, 114 S. Ct. 1526 (1994); New York v. Quarles, 467 U.S. 649, 655 (1984). Some courts phrased the requirement as the defendant did not believe that he was "free to leave." This standard is comparable to the detention standard for purposes of the fourth amendment—not the functional arrest standard for purposes of the fifth amendment.
  23. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (LEXIS 1998) at 306.
  24. ^ In deciding whether a person is in "constructive custody" the courts use a totality of the circumstances test. Factors frequently examined include (1) the location of the interrogation (2)the force used to stop or detain the suspect (3) the number officer and police vehicles involved (4) whether the officers were in uniform (5) whether the officers were visibly armed (6) the tone of officer's voice (7) whether the suspect was told they were free to leave (8) the length of the detention and/or interrogation (9) whether the suspect was confronted with incriminating evidence and (10) whether the accused was the focus of the investigation.
  25. ^ See Berkemer v. McCarty, 468 U.S. 420 (1984)(brief roadside investigatory detention is not custody) and California v. Beheler, 463 U.S. 1121 (1983) (per curiam).
  26. ^ Berkemer v. McCarty, 468 U.S. 420 (1984)
  27. ^ Miranda is not offense or investigation-specific. Therefore, absent a valid waiver, a person in custody cannot be interrogated about the offense they are held in custody for, or any other offense.
  28. ^ Imwinkelried and Blinka, Criminal Evidentiary Foundations, 2d ed. (Lexis 2007) ISBN 1-4224-1741-7 at 620.
  29. ^ See Edwards v. Arizona, 451 U.S. 477 (1981).
  30. ^ See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis 1998)331 n. 204 citing United States v. Smith, 3 F.3d. 1088 (7th Cir. 1993)
  31. ^ See Latzer, State Constitutions and Criminal Justice, 97 n. 86 (Goodwood Press 1991) quoting Kamisar, LaFave & Israel, Basic Criminal Procedure 598 (6th ed. 1986)"whatever may lurk in the heart or mind of the fellow prisoner ..., if it is not 'custodial police interrogation' in the eye of the beholder, then it is not ... interrogation within the meaning of Miranda."
  32. ^ See Commonwealth v. Leone, 386 Mass. 329 (1982).
  33. ^ Other bases for exclusion include that the confession was the product of an unconstitutional arrest [See Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979)], the confession was obtained in violation of the defendant's sixth amendment right to counsel or the confession was involuntary under the due process clause of the fifth and fourteenth amendments.
  34. ^ State and Federal courts have consistently rejected challenges to Miranda warnings on grounds that defendant was not advised of additional rights. See e.g. United States v. Coldwell, 954 F.2d 496(8th Cir. 1992) For example, police are not required to advise a suspect that if he decides to answer questions without an attorney present, he still has the right to stop answering at any time until he talks to an attorney. Note that the Miranda warnings are not part of the arrest procedure. There is no constitutional requirement that the officer advise the defendant of his Miranda rights when he places the defendant under arrest.
  35. ^ California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); Brown v. Crosby, 249 F. Supp. 2d 1285 (S.D. Fla. 2003).
  36. ^ Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) While a "talismanic incantation" of the exact language of the original Miranda warnings is not required, [Bloom and Brodin, Criminal Procedure, 5th ed. (Aspen 2006) 268] deviations and omission can result in suppression of the statement.
  37. ^ U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005).
  38. ^ Gregory Declue, Oral Miranda warnings: A checklist and a model presentation, The Journal of Psychiatry & Law (2007) at 421.
  39. ^ Miranda v. Arizona, 384 U.S. at 475
  40. ^ United States v. Melanson, 691 F.2d 579 (1st Cir.), cert. denied, 454 U.S. 856, 102 S. Ct. 305, 70 L. Ed. 2d 151 (1981).
  41. ^ 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473, 485 (1987)
  42. ^ 479 U.S. at 166.
  43. ^ Bloom and Brodin, Criminal Procedure 2nd ed. (Little Brown 1986) 250.
  44. ^ See Moran v. Burbine, 475 U.S.
  45. ^ Davis v. United States, 512 U.S. 452 (1994)
  46. ^ Davis v. United States, 114 S. Ct. 2350 (1994)
  47. ^ United States v. Davis. Merely remaining silent in the face of protracted questioning does not constitute an assertion of the Fifth Amendment right to silence. The assertion must be explicit to be effective. Berghuis v Thompkins, 560 U.S. (2010)
  48. ^ "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody." Michigan v. Moseley, 423 U.S. 96 (1975) quoting Miranda v. Arizona, 384 U. S. 436 (1966) at 384 U. S. 473-74. Note the defendant's assertion of their fifth amendment right to silence cannot be used as substantive evidence of guilt or to impeach the defendant's testimony. Doyle v. Ohio
  49. ^ A request to speak to a third person who is not an attorney does not invoke right to counsel. Fare v. Michael C., 442 U.S. 707 (1979)
  50. ^ The Supreme Court has agreed to hear Maryland v. Shatzer to determine how long the protections afforded by the Edwards rule last. Tackling Edwards v. Arizona One More Time
  51. ^ The statement of the defendant is admissible when offered by the state as substantive evidence of guilt as an adimission of a party opponent. This exception or exemption from the hearsay rules is not available to the defendant — the defendant must resort to some other exception if he attempts to offer his own statement into evidence. Further if the defendant is successful in offering his own statement as substantive evidence, then the defendant is the hearsay declarant and the state can impeach the defendant as it would any other witness including te use of potentilly devastating evidence of prior convictions.
  52. ^ See Pennsylvania v. Muniz, 496 U.S. 582 (1990)
  53. ^ New York v. Quarles, 467 U.S. 649 (1984)
  54. ^ See Illinois v. Perkins, 496 U.S. 292 (1990)
  55. ^ Massiah v. United States, 377 U.S. 201 (1964)
  56. ^ New York v. Quarles, 467 U.S. 649, 655 (1984).
  57. ^ A common misconception is that a violation of a defendant's constitutional rights warrants dismissal of the charges. Generally, a violation of a defendant's constitutional rights will not result in dismissal of the charges unless the defendant can show that the violation was especially egregious.
  58. ^ The statement must be "voluntary" under the due process clauses of the Fifth and Fourteenth Amendments. An involuntary statement cannot be used for any purpose.
  59. ^ Note that if the seizure of the defendant violated the fourth amendment any confession that resulted from the seizure would be subject to suppression. For example, an officer stops a defendant because the officer has a "gut feeling" that the defendant is driving while impaired. After the stop the officer asks the defendant if he had been drinking and the defendant says. "Yes". The officer then arrests the defendant and takes him to the law enforcement center to administer a breathalyzer test. While in the breathalyzer room the officer asks the defendant the questions on his alcohol influence report. The defendant's responses are incriminating. Under this scenario because the initial stop was unconstitutional all evidence that resulted from the stop would be subject to suppression.
  60. ^ Evidence includes physical evidence, confessions and identification evidence. Derivative evidence may also be excluded. See Federal Rules of Criminal Prodcedure 12(b), 41(e) and 41(f) respectively.
  61. ^ Most motions to suppress are based on violations of Fourth, Fifth, and Sixth Amendments and the due process clauses of the Fifth and Fourteenth Amendments.
  62. ^ a b c NC Defender Manual, Suppression Motions (NC School of Government 2002)
  63. ^ Fed. R. Crim. P. 12 allows motions to be made orally or in writing in the court's discretion. But many courts have local rules of practice requiring written motions.
  64. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (Lexis 1998) at 5.
  65. ^ Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (Lexis 1998) at 7. citing United States v. Maldonado, 42 F.3rd 906 (5th Cir. 1995) The defendant should state with some specificity the legal grounds on which he challenges the admissibility of the evidence and should assert all available grounds. Failure to assert a ground may be treated as waiver. The defendant must also assert facts that show that a substantial claim exists. The assertion must be specific, detailed, definite and nonconjectural. Adams & Blinka, Pretrial Motions in Criminal Prosecutions 2ed. (Lexis 1998) at 7. citing United States v. Calderon, 77 F.3rd 6, 9 (1st Cir. 1996) Conclusory statements such as the defendant was "coerced" or "under duress" carry little weight.
  66. ^ North Carolina requires that the affidavit be based on first hand knowledge or on information and belief. If information and belief, the affiant must state the source of his information and the reason for his belief that it is true. Attorney are reluctant for the defendant be the affiant. Although statements from the defendant in support of a motion to suppress cannot be used as substantive evidence of guilt, the statements can be used to impeach the defendant's testimony.
  67. ^ See Fed Rules of Evidence 104(a) & (b)
  68. ^ United States v. Gouveia, 467 U.S. 180, 187–88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984)."In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst,304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, 399 U. S. 1." ". . . [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings – whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."
  69. ^ Michigan v. Jackson, 475 U.S. 625, 632 (1986); see also Brewer v. Williams, 430 U.S. 387, 398 (1977). In Maine v. Moulton the court stated “By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the "intricacies . . . of law," ibid., is needed to assure that the prosecution's case encounters "the crucible of meaningful adversarial testing." The Sixth Amendment right to counsel does not attach until such time as the "government has committed itself to prosecute, and . . . the adverse positions of government and defendant have solidified ...'" Kirby v. Illinois, 406 U. S. 689 (1972).
  70. ^ United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967); see also, United States v. Hidalgo, 7 F.3d 1566 (11th Cir. 1993). Under the critical stage analysis, virtually every phase of the criminal trial is a critical stage. Additionally courts have generally held that pretrial hearings regarding conditions of pretrial release and suppression of evidence are considered critical stages. Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991) on the other hand courts have generally held that certain pre-trial post accusation investigative procedures are not critical stages. Analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages. FBI Law Enforcement Bulletin, (2001)
  71. ^ Brewer v. Williams, 97 S. Ct. 1232 (1977) "That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. See ibid.; McLeod v. Ohio, 381 U. S. 356; United States v. Crisp, 435 F.2d 354, 358 (CA7)"
  72. ^ Illinois v. Perkins, 496 U.S. 292 (1990).
  73. ^ Massiah does not prohibit the government's use of a cellmate as a "silent listening post" – a person who is simply placed in a position to hear any incriminating statements the defendant might make about the charged offense but who does not do anything to coax or induce the defendant to talk about the charged crime. Kuhlmann v. Wilson, 477 U.S. 436 (1986).
  74. ^ McNeil v. Wisconsin, 111 S. Ct. 2204 (1991). Lower federal courts has extended the Sixth Amendment right to counsel to factually related offenses. In Texas v. Cobb, the Supreme Court made clear that the right to counsel appled only to the crime charged and did not apply to attempts to gather information about "other offenses 'closely related factually' to the charged offense." Texas v. Cobb, 121 S. Ct. 1335 (2001).
  75. ^ Texas v. Cobb, 121 S. Ct. 1335 (2001).
  76. ^ Brewer v. Williams, 430 U.S. 387 (1977)
  77. ^ Mathis v. United States, 391 U.S. 1 (1968)
  78. ^ See McNeil v. Wisconsin, 501 U.S. 171 (1991)
  79. ^ Under Michigan v. Jackson, a defendant's request for counsel at a preliminary hearing constituted an assertion of his sixth amendment right to counsel. However, Michigan v. Jackson was overruled by Montejo v. Louisiana .
  80. ^ Fellers v. United States,124 S.Ct. 1019 (2004)
  81. ^ 474 U.S. 159 (1989)
  82. ^ The due process clauses of the Fifth and Fourteenth Amendments provide another basis for challenging the admissibility of confessions. The test is whether the statement was "voluntary." A statement is not voluntary if it was the product of police misconduct. That is a due process claim requires that the defendant establish that there was police misconduct and that this misconduct induced the confession. The "voluntariness" test is implicated in any police interrogation — neither Miranda "custody" or Massiah "commencement of formal criminal proceedings" is a necessary conditions (state action is required). Further, there are no issues of waiver or assertion. Finally the remedy is complete — an involuntary statement cannot be used for any purpose.
  83. ^ Originally MIranda was regarded as a “prophylactic” rule — the rule itself was not a constitutional right but a " judicially–created enforcement mechanism" devised to protect the underlying constitutional rights. In Dickerson v. United States, the Court "constitutionalized" the Miranda rule — although the decision did not perforce change the rule concerning the use of a Miranda-defective statement for impeachment purposes.
  84. ^ Colorado v. Connelly, 479 U.S. 157 (1986)
  85. ^ See Mincey v. Arizona, 437 U.S. 385 (1978); Greenwald v. Wisconsin, 390 U. S. 519, 390 U. S. 521 (1968) ("Considering the totality of these circumstances, we do not think it credible that petitioner's statements were the product of his free and rational choice"); Reck v. Pate, 367 U. S. 433, 367 U. S. 440 (1961) ("If [a defendant's will was overborne], the confession cannot be deemed `the product of a rational intellect and a free will"')
  86. ^ See e.g., Culombe v. Connecticut, 367 U. S. 568, 367 U. S. 583 (1961) ("[A]n extrajudicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice")
  87. ^ Bloom & Brodin, Criminal Procedure (Aspen 1996) at 247.
  88. ^ Bloom & Brodin, Criminal Procedure (Aspen 1996)
  89. ^ Latzer, State Constitutions and Criminal Justice (Greenwood 1991)
  90. ^ Id. at 2. This similarity is hardly surprising since the federal constitution and many state constitutions had common sources the state constitutions of some of the more important states such as Virginia.
  91. ^ Id. at 89–91.
  92. ^ In Harris the United States Supreme Court allowed a Miranda=defective statement to be used to impeach the trial testimony of a defendant. Note the Harris rule does not permit the use of a statement that fails to meet the voluntariness standards of the due procee clause to be used for any purpose. The basis for the distinction is that a Miranda-defective statement does not raise the questions of unreliability as does an involuntary statement.
  93. ^ In Moran v Burbine, 475 U.S. 412 (1986) the Court held that officers are not required to tell a suspect in custody that third parties had retained an attorney for the suspect. The failure of the police to inform the suspect of this fact did not render the waiver involuntary. Burbine decision was not well-received by the state courts. Six states specifically rejected the Burbine rule.
  94. ^ id. at 91–98. The specific holding in Fare was that a juvenile's request to have his probation officer present during an interrogation was not an invocation of the juvenile's right to counsel. The Supreme Court stated that juveniles were essentially to be treated the same as adults for the purposes of Miranda. Many states adopted special rules concerning police interrogation of juveniles not true
  95. ^ Dickerson v. United States 530 U.S. 428 (2000).
  96. ^ Prof. James Duane and Officer George Bruch - Fifth Amendment Lecture at Regent University.
  97. ^ Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment. At the time the Supreme Court decided Miranda the Fifth Amendment had already been applied to the states in Malloy v. Hogan, 378 U.S. 1 (1964).
  98. ^ Miranda v. Arizona, 384 U.S. 436 (1966); California v. Hodari D., 499 U.S. 621, 626 (1991).
  99. ^ Rhode Island v. Innis, 446 U.S. 291 (1980).
  100. ^ Escobedo v. Illinois, 378 U.S. 478 (1964); See also Latzer, State Constitutions and Criminal Justice, (Greenwood Press 1991) citing Walter v. United States, 447 U.S. 649 (1980).
  101. ^ The Fifth Amendment applies only to compelled statements used in criminal proceedings.
  102. ^ Doe v. United States, 487 U.S. 201 (1988).
  103. ^ See also United States v. Wade, 388 U.S. 218 (1967).
  104. ^ See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis)331 n. 203 citing United States v. Daughenbaugh, 49 F.3d 171, 173 (5th Cir. 1995).
  105. ^ See Schmerber v. California 384 U.S. 757, 761 n. 5 (1966).
  106. ^ New York v. Quarles, 467 U.S. 649, 655 (1984).
  107. ^ Latzer, State Constitutions and Criminal Justice (Greenwood Press 1991) 95.
  108. ^ Berkemer v. McCarty, 468 U.S. 420 (1984).
  109. ^ Oregon v. Mathiason, 429 U.S. 492 (1972). An initial non-custodial interrogation may become custodial as the circumstances change.
  110. ^ See Edwards v. Arizona, 451 U.S. 477 (1981).
  111. ^ See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis 1998)331 n. 204 citing United States v. Smith, 3 F.3d. 1088 (7th Cir. 1993).
  112. ^ See Latzer, State Constitutions and Criminal Justice, 97 n. 86 (Goodwood Press 1991) quoting Kamisar, LaFave & Israel, Basic Criminal Procedure 598 (6th ed. 1986)"whatever may lurk in the heart or mind of the fellow prisoner ..., if it is not 'custodial police intrrogation' in the eye of the beholder, then it is not ... interrogation within the meaning of Miranda."
  113. ^ See Commonwealth v. Leone, 386 Mass. 329 (1982).
  114. ^ Einesman,F:"Confessions and Culture: The Interaction of Miranda and Diversity", p 9.Journal of Criminal Law and Criminology, 1999.
  115. ^ United States v. Massiah, 377 U.S. 201 (1964).
  116. ^ Supreme.justia.com
  117. ^ "U.S. Lawmaker Says Obama Administration Ordered FBI to Read Rights to Detainees". FOXNews.com. June 11, 2009. http://www.foxnews.com/politics/2009/06/10/lawmaker-says-obama-ordered-fbi-read-rights-detainees/. Retrieved 2010-05-08. 
  118. ^ June 10, 2009 2:05 PM (2009-06-10). "Miranda Rights for Terrorists". The Weekly Standard. http://www.weeklystandard.com/weblogs/TWSFP/2009/06/miranda_rights_for_terrorists.asp. Retrieved 2010-05-08. 
  119. ^ Report 95 (2000) - The right to silence.
  120. ^ The Right to Silence: An Examination of the Issues, June 1998.
  121. ^ Northern Territory Law Reform Committee Report on The Right to Silence.
  122. ^ a b c d "Constitution of Bangladesh: Chapter III". Prime Minister's Office. http://www.pmo.gov.bd/pmolib/constitution/part3.htm. Retrieved 2 October 2011. 
  123. ^ Azad, Mak (3 October 2007). "Do citizens get the protection provided by the constitution?". The Daily Star. http://www.thedailystar.net/law/2007/10/03/index.htm. Retrieved 2 October 2011. 
  124. ^ Green Paper on criminal proceedings.
  125. ^ The European Commission has presented a proposal for an EU law laying down common minimum standards for the rights of suspects and defendants.
  126. ^ Loi n° 2011-392 du 14 avril 2011 relative à la garde à vue.
  127. ^ Stigall, Dan E., "Counterterrorism and the Comparative Law of Investigative Detention" (Cambria 2009)
  128. ^ Department of Justice (Hong Kong); Security Bureau (Hong Kong) (12 2005). Legco.gov.hk "Rules and Directions for the Questioning of Suspects and the Taking of Statements: Caution Statement" (pdf). p. 5. http://www.legco.gov.hk/yr05-06/english/panels/se/papers/se0103cb2-754-04-e.pdf Legco.gov.hk. Retrieved 2011-05-17. 
  129. ^ Medienmitteilung EJDP, 10.09.2008.
  130. ^ "ในกรณีที่เจ้าพนักงานเป็นผู้จับ ต้องแจ้งข้อกล่าวหาให้ผู้ถูกจับทราบ หากมีหมายจับให้แสดงต่อผู้ถูกจับ พร้อมทั้งแจ้งด้วยว่า ผู้ถูกจับมีสิทธิที่จะไม่ให้การหรือให้การก็ได้และถ้อยคำของผู้ถูกจับนั้นอาจใช้เป็นพยานหลักฐานในการพิจารณาคดีได้และผู้ถูกจับมีสิทธิที่จะพบและปรึกษาทนายความ หรือผู้ซึ่งจะเป็นทนายความ ถ้าผู้ถูกจับประสงค์จะแจ้งให้ญาติหรือผู้ซึ่งตนไว้วางใจทราบถึงการจับกุมที่สามารถดำเนินการได้โดยสะดวกและไม่เป็นการขัดขวางการจับหรือการควบคุมผู้ถูกจับหรือทำให้เกิดความไม่ปลอดภัยแก่บุคคลหนึ่งบุคคลใด ก็ให้เจ้าพนักงานอนุญาตให้ผู้ถูกจับดำเนินการได้ตามสมควรแก่กรณี ในการนี้ให้เจ้าพนักงานผู้จับนั้นบันทึกการจับดังกล่าวไว้ด้วย
  131. ^ "เจ้าพนักงานหรือราษฎรผู้ทำการจับต้องเอาตัวผู้ถูกจับไปยังที่ทำการของพนักงานสอบสวนตามมาตรา ๘๓ โดยทันที และเมื่อถึงที่นั้นแล้ว ให้ส่งตัวผู้ถูกจับแก่พนักงานฝ่ายปกครองหรือตำรวจของที่ทำการของพนักงานสอบสวนดังกล่าว เพื่อดำเนินการดังต่อไปนี้
    (๑) ในกรณีที่เจ้าพนักงานเป็นผู้จับให้เจ้าพนักงานผู้จับนั้นแจ้งข้อกล่าวหา และรายละเอียดเกี่ยวกับเหตุแห่งการจับให้ผู้ถูกจับทราบ ถ้ามีหมายจับให้แจ้งให้ผู้ถูกจับทราบและอ่านให้ฟังและมอบสำเนาบันทึกการจับแก่ผู้ถูกจับนั้น
    (๒) ในกรณีที่ราษฎรเป็นผู้จับ ให้พนักงานฝ่ายปกครองหรือตำรวจซึ่งรับมอบตัวบันทึกชื่อ อาชีพ ที่อยู่ของผู้จับ อีกทั้งข้อความและพฤติการณ์แห่งการจับนั้นไว้ และให้ผู้จับลงลายมือชื่อกำกับไว้เป็นสำคัญเพื่อดำเนินการแจ้งข้อกล่าวหาและรายละเอียดแห่งการจับให้ผู้ถูกจับทราบและแจ้งให้ผู้ถูกจับทราบด้วยว่าผู้ถูกจับมีสิทธิที่จะไม่ให้การหรือให้การก็ได้ และถ้อยคำของผู้ถูกจับอาจใช้เป็นพยานหลักฐานในการพิจารณาคดีได้"
  132. ^ Constitution of Ukraine
  133. ^ a b c d Criminal Process Code of Ukraine (unofficial translation)

Further reading

  • Coldrey, J. (1990) "The Right to Silence Reassessed" 74 Victorian Bar News 25.
  • Coldrey, J. (1991) "The Right to Silence: Should it be curtailed or abolished?"` 20 Anglo-American Law Review 51.
  • "Rehnquist's legacy" The Economist. July 2nd–8th, 2005. p. 28.
  • Stevenson, N. (1982) "Criminal Cases in the NSW District Court: A Pilot Study" In J. Basten, M. Richardson, C. Ronalds and G. Zdenkowski (eds.), The Criminal Injustice System Sydney: Australian Legal Workers Group (NSW) and Legal Service Bulletin.

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