A GUIDE TO THE PRIVILEGE AGAINST SELF-INCRIMINATION
Other resources at this site on Fifth Amendment
[The Law of Confession] [Self-Incrimination] [Interrogation and Confession]
The foundation for Miranda v. Arizona (1966) was laid in Malloy v. Hogan
(1964) which applied the privilege against self-incrimination to state criminal
proceedings and Escobedo v. Illinois (1964) which allowed consultation with an
attorney about the privilege against self-incrimination. Because Malloy, or the
privilege against self-incrimination, is a primary component of the 5th Amendment, and Escobedo,
or the right to counsel, is a primary component of the 6th Amendment, Miranda, or
Miranda Law, is usually referred to as "the marriage of the 5th
and 6th Amendment". It is therefore not a simple 5th Amendment case nor a simple
self-incrimination case. What it deals with are confessions and interrogations, two words
that don't even appear in the 5th Amendment.
Miranda is a "bright line" rule (beyond which nobody should cross) intended to forever extinguish the use of COERCION but allowing PRESSURE. It was not intended, as the exclusionary rule was, to reform the police or improve society, but to simply draw the line on coercion, much like Brown v. Mississippi (1936) was intended to outlaw torture. It was not intended to eliminate interrogation, which is inherently stressful and necessarily involves pressure. The purpose of Miranda is to neutralize the distinct psychological disadvantage that suspects are under when dealing with police.
Confessions, prior to Miranda, were only required to meet the voluntariness test, a requirement that all confessions must be voluntary, an exercise of free will on the part of a suspect. This requirement was usually met if the suspect's physical, mental, and emotional condition was stable at the time of making a confession. Today, the voluntariness test and its totality-of-circumstances component continues to be used, but in our post-Miranda era, police must prove they read specific Miranda warnings and obtained an intelligent waiver. Miranda law is not offense-specific; it doesn't matter if the offense is a felony or misdemeanor.
Specific Miranda warnings include the following statements:
There was much concern in the wake of Miranda over the exact wording of the above statements. Police often carried and read from little cards to avoid a favorite tactic of defense attorneys--embarrassing the officer on the stand in repeating the exact words from memory. Over the years, however, Miranda has been "eroded" somewhat (although the courts will not tolerate deliberately reckless departures from the exact wording), as in the case of Duckworth v. Eagan (1989) which held that the following words, although less than perfectly clear, were still acceptable:
A violation of Miranda law will result in immediate (and automatic) suppression of evidence, rendering whatever statements the suspect made to the police and any use the police made with those statements inadmissible in court. However, a violation of Miranda law, in itself, is not grounds for an acquittal nor a reversal of conviction. Two rules have been established in appellate procedure which are followed very strictly.
THE HARMLESS ERROR DOCTRINE
THE AUTOMATIC REVERSAL RULE
|If an involuntary confession is admitted at trial, but the effect was harmless and did not have a prejudicial impact because there was other overwhelming evidence, the conviction must be upheld.||If an involuntary confession is admitted at trial, and the constitutional violation is such that the suspect never understood their right to a lawyer, the conviction must be reversed.|
Miranda warnings are "triggered", or apply and have to be read, if
TWO elements are present: CUSTODY and INTERROGATION.
Both are more difficult to define than what might appear at first glance. It is important
to note that BOTH elements must be present at the same time, what might be called
CUSTODIAL INTERROGATION, although for purposes of understanding, we will treat each term
CUSTODY is the Miranda equivalent of arrest. It does not include traffic stops or brief field interviews based on reasonable suspicion. Nor does it apply to telephone calls, since the suspect is always free to hang up. There is no litmus test (checklist), but an objective test is used to determine if custody occurs. The officer's subjective intent to arrest does not matter. What matters is if, objectively, a reasonable person would believe that an officer conveyed, by words or actions, that a suspect is not free to leave. It also does not matter why the suspect is in custody. Warnings must be given if the suspect is arrested or in jail for one crime and being questioned for another crime.
The general rule is that custody occurs whenever a suspect is placed in "unfamiliar and hostile surroundings". A look at some examples will demonstrate how restrictive this rule really is:
INTERROGATIONis questioning that goes beyond the simple "What happened" and "What did you do, see, or hear?" to questions that imply a suspect's involvement in crime. Questions about motive, alibi, ability, or opportunity to do the crime are all examples of interrogation, such as "Where were you on the night of October 13th?" Usually, this insinuating or judgmental tone is prefaced by rapport-building, or treating the suspect like family. For example:
"How are you? Are you comfortable? Do you want something to drink?" is NOT an INTERROGATION.
"How are you? Are you comfortable? Do you want something to drink? Are you tired? When was the last time you slept. Oh, and by the way, where were you on the night of October 13th?" is an INTERROGATION.
Interrogation inherently involves PERSUASION or PRESSURE. The ultimate goal of interrogation is to obtain a confession, or at least an admission (soft confession)..., anything that would implicate the suspect in criminal behavior. It can safely be assumed nobody would voluntarily implicate themselves to police, but interrogation necessarily involves persuading or convincing a person that it would be in their best interests to do so. Interrogation is changing a person's mind so that they want to tell the police everything they did wrong, and getting them to help convict themselves.
The Supreme Court has treated interrogation as testimony (spoken or written words), or its functional equivalent. Anything like spontaneous utterances or asking a suspect to write down in their own words what happened is the functional equivalent of interrogation. The functional equivalence rule covers any action, deception, or trickery designed to elicit an incriminating response. If, for example, two police officers talk out loud to themselves in front of a suspect with the intent of being overheard and eliciting a "Hey, wait a minute" response from the suspect, this is the functional equivalent of an interrogation. Asking somebody to fill out the narrative section of a police form is also a functional equivalent. Legally, there are three levels of communication: (1) spontaneous utterances; (2) express questioning (Would you like to make a phone call?); and interrogation. Lying to a suspect that an eyewitness has fingered them is a functional equivalent of express questioning, not interrogation, but if it is designed to elicit an incriminating response, it is interrogation. Below is a summary of most of the rules, doctrines, or standards dealing with the Court's treatment of interrogation.
A SUMMARY OF EXCEPTIONS TO THE MIRANDA RULE
THE DEBATE OVER MIRANDA
Two years after Miranda v. Arizona was handed down in 1966, Congress passed 18 U.S.C. Section 3501 to blunt the effect of Miranda. Statutory law 3501 made the giving of Miranda warnings but one factor, among many, in determining if a confession is admissible, and more importantly, made the violation of any one factor, including the absence of Miranda warnings, acceptable in terms of getting the confession admitted on grounds of voluntariness. Statutory law 3501 never saw much use because Justice and police officials assumed it was unconstitutional, and therefore ignored it. The Supreme Court never had an opportunity to rule on it until 1999 when a case appeared in the Fourth Circuit and gave Justices the opportunity to debate the pros and cons of Miranda law the following year:
Dickerson v. U.S. (2000) was the name of the case, and it came down in a 7-2 decision instead of the 5-4 vote in the original Miranda case. Dickerson will probably go down in history books as a landmark case in suspect rights advisement. Briefly, Charles Dickerson was picked up by the FBI for questioning about a bank robbery in Alexandria, Virginia. He was interviewed twice, first without his Miranda rights, and with some dispute over the second interview. Eventually, he led police to a search of his apartment and a pickup of his co-offenders. At his trial, the confession was suppressed, but the Fourth Circuit of Appeals overruled the suppression on grounds of Section 3501. The case then went to the U.S. Supreme Court to debate the pros and cons of letting Miranda law stand.
Chief Justice Rehnquist delivered the majority opinion of the court to let Miranda law stand (with Justices Breyer, Ginsburg, Kennedy, O'Connor, Souter, and Stevens on his side). Justice Scalia wrote the dissent (with Justice Thomas on his side). Attorney James Hundley represented the petitioner. Janet Reno represented the government's position. University of Utah professor, Paul Cassell, a lifelong critic of Miranda law, wrote an amicus curiae brief, attacking Miranda. The following pros and cons are reflected in various briefs, opinions, and dissents in Dickerson:
PETITIONER'S REASONS FOR LETTING MIRANDA LAW STAND
1 - Principles of stare decisis dictate that Miranda not be overruled. Over 33 years of precedent have engrained Miranda law as a bedrock principle of law and legal opinion.
2 - Miranda warnings have proven to be "workable" in practice. Police officers do not find it difficult to administer because of its ease and clarity of application. It has not been shown to undermine law enforcement.
3 - Public expectations have been shaped favorably and reliantly by the popularization of Miranda. It promotes a perception of fairness, integrity, and respect for the Constitution and criminal justice system.
4 - The various exceptions to Miranda's exclusionary rule have not "eroded" Miranda, but instead have been remarkably consistent and true to the core holdings of law. In other words, Miranda has shepherded a number of "good" laws and doctrinal developments in its wake.
5 - The factual premises under which Miranda was founded still exist. Although police brutality and coercion have lessened, it cannot be said that psychological coercion no longer exists. Police interrogation procedures are still inherently menacing.
6 - Miranda is sound in principle and consistent with the text of the Fifth Amendment which it flows logically from, and closely matches. Although the historical record is sparse, Miranda can be seen as the natural outgrowth of over a hundred years of Fifth Amendment guarantees.
THE GOVERNMENT'S POSITION ON MIRANDA
1 - Miranda should not be overturned because it is cost-effective in terms of good and evil. There are undeniable instances in which it imposes costs on the truth-seeking function of trial, but overall, it has made law enforcement more efficient and good.
2 - Miranda's core procedures are workable, and police find little difficulty in its administration. What problems exist occur in extensions as the Edwards context. ATF has long adopted the practice of requiring Miranda even in non-custodial settings because of its ease and clarity.
3 - A return to a totality-of-circumstances voluntariness test is unlikely to be more workable than Miranda. If Miranda warnings are not required, the result will be uncertainty for the police and an additional volume of litigation on the totality standard.
4 - Overturning Miranda would upset settled public opinion by overruling a well-known and widely applied law that has had a stabilizing effect on public confidence and reliability in the criminal justice system.
5 - Arguments that Miranda's "prophylactic" requirements sweep more broadly than the Fifth Amendment requires are unfounded. Miranda is a procedural safeguard, not an attempt to mold police conduct for its own sake. There are other contexts in which the Court has recognized prophylactic rules to safeguard constitutional rights.
6 - Although it is debatable if the coercive environment of police interrogation is the same today as thirty years ago, there is still a need for Miranda because of the risk that pressure may undermine an individual's will to resist. Technological substitutes, such as videotaping, are promising but as of yet offer no assurances on as large a scale as Miranda warnings.
THE CASSELL BRIEF AGAINST MIRANDA LAW
1 - The benefits of Miranda are preserved virtually intact by Section 3501, which is the more constitutionally valid law as opposed to Miranda's draconian remedy. The automatic character of Miranda's exclusionary rule is excessive while Section 3501's remedy thwarts involuntary confessions more in keeping with the text of the Fifth Amendment.
2 - Miranda created a new, non-constitutional right and prophylactic rule that sweeps more broadly than the Constitution. No one has ever sketched a consistent theory explaining Miranda's constitutional basis in the Fifth Amendment. By comparison, the search and seizure exclusionary rule is based on actual violations of the Fourth Amendment. Miranda's exclusionary rule is based on technical violations of judge-made law.
3 - The Court overstepped its authority in handing down Miranda. It is best seen as an exercise of the Court's power to craft safeguards in the absence of legislative action. It leaves nothing for Congress to do, and embellishes the judicial branch for all time as law-giver.
4 - Widespread application of Miranda warnings by the states does not make Miranda law constitutional or law of the land. A rule that has changed in many respects through various exceptions is not the strongest candidate for common law doctrine.
5 - Miranda has harmed and "straight jacketed" law enforcement. DEA, as opposed to ATF, holds many more custodial interrogations, and they report problems. The government's position even seems to imply unspoken problems in enforcement, or only if the Edwards context were clarified. Miranda is extraconstitutional because it requires police to affirmatively assist the suspect in making a shrewder decision about whether to talk.
6 - Other remedies, such as civil liability, exist to safeguard suspect advisement rights. 18 U.S.C. 241 and 242 also protect deprivation of rights under color of law. A number of state ethics rules forbid contact with suspects represented by counsel. Internal investigations of police agencies themselves are more advanced than thirty years ago.
7 - The Court should at least overturn Miranda's irrebuttable presumption that confessions obtained without technical compliance to Miranda procedures are inherently involuntary. Such a presumption is just not congruent with the facts of most confessions, and is out of proportion to the vast majority of cases. Per se rules should not be applied when there are important exceptional contexts.
8 - Upholding Miranda law plays little role in maintaining confidence in the criminal justice system. Much more important is the search for truth. Public confidence cannot possibly be enhanced by a rule that conceals truth.
THE SCALIA DISSENT AGAINST UPHOLDING MIRANDA LAW
1 - The Court did not just apply the Constitution when it handed down Miranda, it expanded the Constitution, imposing an immense and antidemocratic prophylactic rule upon Congress and the states. It was an example of raw, judicial power that simply asserted a constitutional right.
2 - Preventing foolish people from incriminating themselves is the only purpose of Miranda, and that is a far cry from what the Fifth Amendment requires in terms of protecting someone from being compelled to incriminate themself. Nor is a lawyer required because the interrogators can do the same as any lawyer can -- tell the suspect they have a right to be silent. The Constitution is not offended by a criminal's commendable qualm of conscience or fortunate fit of stupidity.
3 - There is no support for a Miranda right in history, precedent, or common sense. In fact, later cases, such as the 60 or so that the Court has heard in the 34 years since Miranda have easily undermined its doctrinal underpinnings and pointed out that its application and enforcement is problematic.
4 - It is not clear why the totality-of-circumstances test is more difficult for law enforcement to administer than Miranda. As Justice O'Connor has pointed out many times, voluntariness is not without its strengths by permitting each fact to be taken into account without resort to formal and dispositive labels. Voluntariness is indeed the more constitutional standard.
5 - Miranda should not be preserved simply because it occupies a special place in the public consciousness. There is little harm in admitting that we made a mistake in taking away from people their ability to decide for themselves. By overturning Miranda, we reaffirm for the people the wonderful reality that they govern themselves, as stated in the Tenth Amendment.
About.com Current Events Law Guide to Miranda
Invoking the Miranda Right to Counsel: The Defendant's Burden
MirandaFest Essays and Links
Baker, L. (1983). Miranda: Crime, Law and Politics. NY: Antheneum.
Brandt, C. (1991). The Right to Remain Silent. NY: St. Martin's.
Cassell, P. and R. Fowles (1998). Handcuffing the Cops: A Thirty Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stanford Law Review 1055-1069.
Cipes, R. (1966). Crime, Confessions, and the Court. Atlantic Monthly 55.
Grano, J. (1979). Free Will and the Law of Confessions, 65 Virginia Law Review 859-945.
Gudjonsson, G. (1992). The Psychology of Interrogations, Confessions and Testimony. NY: Wiley and Sons.
Helmholz, R. et al (1997). The Privilege Against Self-Incrimination. Chicago: Univ. of Chicago Press.
Inbau, F., J. Reid, & J. Buckley (1986). Criminal Interrogation and Confessions. Baltimore: Williams & Wilkins.
Leo, R. (1992). From Coercion to Deception. Crime, Law & Social Change 18: 35-59.
Leo, R. (1996a). Inside the Interrogation Room. Journal of Criminal Law and Criminology 86: 266-303.
Leo, R. (1996b). Miranda's Revenge: Police Interrogation as a Confidence Game. Law and Society Review 30: 259-88.
Leo, R. (1996c). The Impact of Miranda Revisited. Journal of Criminal Law and Criminology 86: 621-92.
Medalie, R. (1966). From Escobedo to Miranda. Washington DC: Lerner Law Books.
O'Hara, C. & L. O'Hara (1980). Fundamentals of Criminal Investigation. Springfield: Charles Thomas.
Rutledge, D. (1994). Criminal Interrogation: Law and Tactics. Placerville, CA: Copperhouse.
Schmalleger, F. (2001). Miranda Revisited. Upper Saddle River, NJ: Prentice-Hall.
Zulawski, D. & D. Wicklander (1993). Practical Aspects of Interview and Interrogation. Boca Raton: CRC Press.
Last updated: 01/06/04
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