who wrote the miranda rights

Ernesto Arturo Miranda (March 9, 1941 – January 31, 1976) was a laborer whose conviction on
kidnapping, rape, and armed robbery charges based on his confession under police interrogation
was set aside in the landmark U.S. Supreme Court case Miranda v. Arizona, which ruled that
criminal suspects must be informed of their right against self-incrimination and their right to consult
with an attorney before being questioned by police. This warning is known as a Miranda warning.
After the Supreme Court decision set aside Miranda's initial conviction, the state of Arizona retried
him. At the second trial, with his confession excluded from evidence, he was again convicted.

Contents

 1Biography
o 1.1Early life
o 1.2Confession without rights; Miranda v. Arizona
o 1.3Miranda v. Arizona
o 1.4Life after Miranda v. Arizona
 2References
 3External links

Biography[edit]
Early life[edit]
Ernesto Arturo Miranda was a Mexican-American citizen born in Mesa, Arizona, on March 9, 1941.
Miranda began getting in trouble when he was in grade school. Shortly after his mother died, his
father remarried. Miranda and his father didn't get along very well; he kept his distance from his
brothers and stepmother as well. Miranda's first criminal conviction was during his eighth grade year.
The following year, he was convicted of burglary and sentenced to a year in reform school.
In 1956, about a month after his release from the reform school, Arizona State Industrial School for
Boys (ASISB), he fell afoul of the law once more and was returned to ASISB. Upon his second
release from reform school he relocated to Los Angeles, California. Within months of his arrival in
LA, Miranda was arrested (but not convicted) on suspicion of armed robbery and for some sex
offenses. After two and a half years in custody the 18-year-old Miranda was extradited back to
Arizona.
He drifted through the southern U.S. for a few months, spending time in jail in Texas for living on the
street without money or a place to live, and was arrested in Nashville, Tennessee, for driving a
stolen car. Miranda was sentenced to a year and a day in the federal prison system because he had
taken the stolen vehicle across state lines. He spent his sentence in Chillicothe, Ohio, and later
in Lompoc, California.
The next couple of years Miranda kept out of jail, working at various places, until he became a
laborer on the night loading dock for the Phoenix produce company. At that time he started living
with Twila Hoffman, a 29-year-old mother of a boy and a girl by another man, from whom she could
not afford a divorce.

Confession without rights; Miranda v. Arizona[edit]

Maricopa County Courthouse

On March 13, 1963,[1] Miranda's truck was spotted and license plates recognized by the brother of a
18-year-old kidnapping and rape victim, Lois Ann Jameson (the victim had given the brother a
description). With his description of the car and a partial license plate number, Phoenix
police officers Carroll Cooley and Wilfred Young confronted Miranda, who voluntarily accompanied
them to the station house and participated in a lineup. At the time, Miranda was a person of interest,
and not formally in custody.
After the lineup, when Miranda asked how he did, the police implied that he was positively identified.
The police got a confession out of Miranda after two hours of interrogation, without informing him of
his rights. After unburdening himself to the officers, Miranda was taken to meet the beating victim for
positive voice identification. Asked by officers, in her presence, whether this was the victim, Miranda
said, "That's the girl." The victim stated that the sound of Miranda's voice matched that of the culprit.
Miranda then wrote his confessions down. At the top of each sheet was the printed certification that
"…this statement has been made voluntarily and of my own free will, with no threats, coercion or
promises of immunity and with full knowledge of my legal rights, understanding any statement I
make can and will be used against me." Despite the statement on top of the sheets that Miranda was
confessing "with full knowledge of my legal rights," he was not informed of his right to have an
attorney present or of his right to remain silent. 73-year-old Alvin Moore was assigned to represent
him at his trial. The trial took place in mid-June 1963 before Maricopa County Superior Court Judge
Yale McFate.
Moore objected to entering the confession by Miranda as evidence during the trial but was overruled.
Mostly because of the confession, Miranda was convicted of rape and kidnapping and sentenced to
20 to 30 years on both charges. Moore appealed to the Arizona Supreme Court but the charges
were upheld.
Filing as a pauper, Miranda submitted his plea for a writ of certiorari, or request for review of his
case to the U.S. Supreme Court in June 1965. After Alvin Moore was unable to take the case
because of health reasons, the American Civil Liberties Union (ACLU) attorney Robert J. Corcoran,
asked John J. Flynn, a criminal defense attorney, to serve pro bono, along with his partner, John P.
Frank, and associates Paul G. Ulrich and Robert A. Jensen [2] of the law firm Lewis & Roca in
Phoenix to represent Miranda.[3] They wrote a 2,500 word petition for certiorari that argued that
Miranda's Fifth Amendment rights had been violated and sent it to the United States Supreme Court.

Miranda v. Arizona[edit]
Main article: Miranda v. Arizona
In November 1965, the Supreme Court agreed to hear Miranda's case, Miranda v. Arizona, along
with three other similar cases to clear all misunderstandings created by the ruling of Escobedo v.
Illinois. That previous case had ruled that:
Under the circumstances of this case, where a police investigation is no longer a general inquiry into
an unsolved crime but has begun to focus on a particular suspect in police custody who has been
refused an opportunity to consult with his counsel and who has not been warned of his constitutional
right to keep silent, the accused has been denied the assistance of counsel in violation of
the Sixth and Fourteenth Amendments, and no statement extracted by the police during the
interrogation may be used against him at a trial. Crooker v. California, 357 U.S. 433, and Cicenia v.
Lagay, 357 U.S. 504, distinguished, and, to the extent that they may be inconsistent with the instant
case, they are not controlling. Pp. 479–492.[4]

January 1966, Flynn and Frank submitted their argument stating that Miranda's Sixth Amendment
right to counsel had been violated by the Phoenix Police Department. Two weeks later the state of
Arizona responded by stating that Miranda's rights had not been violated. The first day of the case
was on the last day of February 1966. Because of the three other cases and other information the
case had a second day of oral arguments on March 1, 1966.
John Flynn and John Paul Frank for Miranda outlined the case and then stated that Miranda had not
been advised of his right to remain silent when he had been arrested and questioned, adding
the Fifth Amendment argument to his case. Flynn contended that an emotionally disturbed man like
Miranda, who had a limited education, should not be expected to know his Fifth Amendment right not
to incriminate himself.
Gary Nelson spoke for the people of Arizona, arguing that this was not a Fifth Amendment issue but
just an attempt to expand the Sixth Amendment Escobedo decision. He urged the justices to clarify
their position, but not to push the limits of Escobedo too far. He then told the court that forcing police
to advise suspects of their rights would seriously obstruct public safety.
The second day concerned arguments from related cases. Thurgood Marshall, the
former NAACP attorney, was the last to argue. In his capacity as the Solicitor General, he presented
the Johnson administration's view of the case: that the government did not have the resources to
appoint a lawyer for every indigent person who was accused of a crime.
Chief Justice Earl Warren wrote the opinion in Miranda v. Arizona. The decision was in favor of
Miranda. It stated that:
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain
silent, and that anything he says will be used against him in court; he must be clearly informed that
he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and
that, if he is indigent, a lawyer will be appointed to represent him.

The opinion was released on June 13, 1966. Because of the ruling, police departments around the
country started to issue Miranda warning cards to their officers to recite. They read:
You have the right to remain silent. If you give up the right to remain silent, anything you say can and
will be used against you in a court of law. You have the right to an attorney and to have an attorney
present during questioning. If you cannot afford an attorney, one will be provided to you at no cost.
During any questioning, you may decide at any time to exercise these rights, not answer any
questions or make any statements. Do you understand these rights as I have read them to you?

Life after Miranda v. Arizona[edit]

The grave of Ernesto Arturo Miranda in the City of Mesa Cemetery

The Supreme Court set aside Miranda's conviction, which was tainted by the use of the confession
that had been obtained through improper interrogation. The state of Arizona retried him. At the
second trial, his confession was not introduced into evidence, but he was convicted again on
testimony given by his estranged de facto wife. He was sentenced to 20 to 30 years in prison.[5]
Miranda was paroled in 1972.[5] After his release, he started selling autographed Miranda warning
cards for $1.50.[6] Over the next few years, Miranda was arrested numerous times for minor driving
offenses and eventually lost the privilege to drive a car. He was arrested for the possession of a gun
but the charges were dropped. However, because this violated his parole he was sent back
to Arizona State Prison for another year.
On January 31, 1976, after his release for violating his parole, a violent fight broke out in a bar in
Phoenix. Miranda received a lethal wound from a knife, and he was pronounced dead on arrival at
Good Samaritan Hospital. Several Miranda cards were found on his person. Miranda was buried in
the City of Mesa Cemetery in Mesa, Arizona.

Miranda Rights' and the Fifth Amendment

278 180K

What are the "Miranda Rights"?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona,
declaring that whenever a person is taken into police custody, before being questioned
he or she must be told of the Fifth Amendment right not to make any self-incriminating
statements. As a result of Miranda, anyone in police custody must be told four things
before being questioned:

1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be appointed for you.
Read the historic U.S. Supreme Court decision: Miranda v. Arizona.

What if the Police Fail to Advise Me of My Miranda Rights?

When police officers question a suspect in custody without first giving the Miranda
warning, any statement or confession made is presumed to be involuntary, and cannot
be used against the suspect in any criminal case. Any evidence discovered as a result
of that statement or confession will likely also be thrown out of the case.

For example, suppose Dan is arrested and, without being read his Miranda rights, is
questioned by police officers about a bank robbery. Unaware that he has the right to
remain silent, Dan confesses to committing the robbery and tells the police that the
money is buried in his backyard. Acting on this information, the police dig up the money.
When Dan's attorney challenges the confession in court, the judge will likely find it
unlawful. This means that, not only will the confession be thrown out of the case against
Dan, but so will the money itself, because it was discovered solely as a result of the
unlawful confession.

Ask a Criminal Defense Attorney About Your Miranda Rights

If you believe that your Miranda rights have been violated, this can have a significant
impact on your case and may even lead to a dismissal of any charges against you.
That's why it's crucial to have a strong criminal defense lawyer in your corner. If you
have important questions about criminal law or need representation, get started today
by finding an experienced criminal defense attorney near you.

Miranda warning
From Wikipedia, the free encyclopedia
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consider splitting content into sub-articles, condensing it, or adding or
removing subheadings. (April 2013)
Page of the manuscript written by Chief Justice Earl Warren regarding the Miranda v. Arizona decision. This
page established the basic requirements of the "Miranda warning".

The Miranda warning, which also can be referred to as a person's Mirandarights, is a right to
silence warning given by police in the United States to criminal suspects in police custody (or in
a custodial interrogation) before they are interrogated to preserve the admissibility of their
statements against them in criminal proceedings.
A typical Miranda warning can read as follows:
"You have the right to remain silent. Anything you say can be used against you. You have
the right to an attorney. If you cannot afford one, one will be appointed to you by the court.
With these rights in mind, are you still willing to talk with me about the charges against you?"
The Miranda warning is part of a preventive criminal procedure rule that law enforcement are
required to administer to protect an individual who is in custody and subject to direct questioning
or its functional equivalent from a violation of his or her Fifth Amendment right against compelled
self-incrimination. In Miranda v. Arizona (1966), the Supreme Court held that the admission of
an elicited incriminating statement by a suspect not informed of these rights violates the Fifth
Amendment and the Sixth Amendment right to counsel, through the incorporation of these rights
into state law.[Note 1] Thus, if law enforcement officials decline to offer a Miranda warning to an
individual in their custody, they may interrogate that person and act upon the knowledge gained,
but may not use that person's statements as evidence against him or her in a criminal trial.

Contents
[hide]

 1Origin and development of Miranda rights

 2The warnings
o 2.1Circumstances triggering the Miranda requisites
o 2.2Use in various U.S. state jurisdictions
 3The six rules
 o 3.1Application of the prerequisites
 4Waiver
 5Assertion
 6Exceptions
o 6.1Public safety exception
 7Consequences of violation
o 7.1Procedural requirements
 8Related doctrines
o 8.1Massiah Doctrine
 8.1.1Commencement of adversarial criminal proceedings
 8.1.2Deliberate elicitation of information from the defendant by governmental agents
 8.1.3Miranda and Massiah compared
o 8.2The voluntariness standard
o 8.3State constitutional challenges
o 8.4State statutory challenges
 9Confusion regarding use
o 9.1Exemption for interrogations conducted by undercover agents
o 9.2Report of warnings being given to detainees in Afghanistan
 10Equivalent rights in other countries
 11See also
 12Notes
 13References
 14Further reading
 15External links

Origin and development of Miranda rights[edit]

A U.S. Customs and Border Protection (CBP) Border Patrol agent 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 and Sixth Amendment rights
of Ernesto Arturo Miranda had been violated during his arrest and trial for armed robbery,
kidnapping, and rape of a mentally handicapped young woman (Miranda was subsequently
retried and convicted, based primarily on his estranged ex-partner, who had been tracked down
by the original arresting officer via Ernesto's own parents, suddenly claiming that Ernesto had
confessed to her when she had visited him in jail; Ernesto's lawyer later confessed that he
'goofed' the trial[1]).
The circumstances triggering the Miranda safeguards, i.e. Miranda rights, are "custody" and
"interrogation". Custody means formal arrest or the deprivation of freedom to an extent
associated with formal arrest. Interrogation means explicit questioning or actions that are
reasonably likely to elicit an incriminating response. The Supreme Court did not specify the
exact wording to use when informing a suspect of his/her 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/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/she has the right to consult with an attorney and to have
that attorney present during questioning, and that, if he/she is indigent, an attorney will be
provided at no cost to represent him/her.

In Berkemer v. McCarty (1984), the Supreme Court decided that a person subjected to custodial
interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda,
regardless of the nature or severity of the offense of which he is suspected or for which he was
arrested.[2]
As a result, American English developed the verb Mirandize, meaning "read the Miranda rights
to" a suspect (when the suspect is arrested).[3]
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)[4]).
In Berghuis v. Thompkins (2010), the Supreme Court held that unless a suspect expressly
states that he or she is invoking this right, subsequent voluntary statements made to an officer
can be used against them in court, and police can continue to interact with (or question) the
alleged criminal.

The warnings[edit]
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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:[5]

 You have the right to remain silent and refuse to answer questions.
 Anything you say may be used against you in a court of law.
 You have the right to consult an attorney before speaking to the police and to have an
attorney present during questioning now or in the future.
 If you cannot afford an attorney, one will be appointed for you before any questioning if you
wish.
 If you decide to answer questions now without an attorney present, you will still have the
right to stop answering at any time until you talk to an attorney.
 Knowing and understanding your rights as I have explained them to you, are you willing to
answer my questions without an attorney present?
The courts have since ruled that the warning must be "meaningful", so it is usually required that
the suspect be asked if he/she understands their 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 invoked
or waived their rights ambiguously, and any statement given during questioning prior to
invocation or waiving is admissible as evidence.[6] 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.[7]
While the exact language above is not required by Miranda, the police must advise the suspect
that:

1. they have the right to remain silent;

2. anything the suspect does say can and may be used against them in a court of law;
3. they have the right to have an attorney present before and during the questioning; and
4. they have the right, if they cannot afford the services of an attorney, to have one
appointed, at public expense and without cost to them, to represent them before and
during the questioning.[8]
There is no precise language that must be used in advising a suspect of their Miranda
rights.[9] The point is that whatever language is used the substance of the rights outlined above
must be communicated to the suspect.[10] The suspect may be advised of their rights orally or in
writing.[11] Also, officers must make sure the suspect understands what the officer is saying,
taking into account potential education levels. 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.
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 the 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.[12]
Circumstances triggering the Miranda requisites[edit]
The circumstances triggering the Miranda safeguards, i.e. Miranda warnings, are "custody" and
"interrogation". Custody means formal arrest or the deprivation of freedom to an extent
associated with formal arrest. Interrogation means explicit questioning or actions that are
reasonably likely to elicit an incriminating response. Suspects in "custody" who are about to be
interrogated 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 Sixth 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.
The duty to warn only arises 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 an 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.
Use in various U.S. state jurisdictions[edit]
 Police detectives read the Miranda rights to a fugitive felon, 1984 (photography: J. Ross Baughman)

Some jurisdictions provide the right of a juvenile to remain silent if their parent or guardian is not
present. Some departments in New Jersey, Nevada, Oklahoma, and Alaska modify the
"providing an attorney" clause as follows:
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and
when you go to court.

Even though this sentence may be somewhat ambiguous to some laypersons, who can, and
who have actually interpreted it as meaning that they will not get a lawyer until they confess and
are arraigned in court, the U.S. Supreme Court has approved of it as an accurate description of
the procedure in those states.[13]
In states bordering Mexico, including Texas, New Mexico, Arizona, and California, suspects who
are not United States citizens are given an additional warning:[14][15][16][17][18][19]
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:[17][18][19][20]
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 Pennsylvaniaalso add the following questions, presumably to
comply with the Vienna Convention on Consular Relations:[17][18][19]
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 indirectly punish
them for the exercise of a constitutional right by commenting on their silence and insinuating that
it is an implicit admission of guilt.[21] Since Miranda rights are simply a judicial gloss upon the
Fifth Amendment which protects against coercive interrogations, the same rule also prevents
prosecutors from commenting about the post-arrest silence of suspects who invoke
their Miranda rights immediately after arrest.[22] However, neither the Fifth Amendment
nor Miranda extend to pre-arrest silence, which means that if a defendant takes the witness
stand at trial (meaning he just waived his Fifth Amendment right to remain silent), the prosecutor
can attack his credibility with his pre-arrest silence (based on his failure to immediately turn
himself in and confess to the things he voluntarily testified about at trial).[23]
Under the Uniform Code of Military Justice, Article 31[24] provides for the right against compelled
self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department
of the Army Form 3881,[25] which informs them of the charges and their rights, and the subjects
must sign the form. 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.[26]

The six rules[edit]

The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the
product of custodial police interrogation. The Miranda right to counsel and right to remain silent
are derived from the self-incrimination clause of the Fifth Amendment.[27] Therefore, for Miranda
to apply, six requirements must be fulfilled:
1. Evidence must have been gathered.
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.[28] Nor can the state offer evidence that the
defendant asserted his rights—that he refused to talk.
2. The evidence must be testimonial.[29]
Miranda applies only to "testimonial" evidence as that term is defined under the Fifth
Amendment.[29] 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.[30][31] 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[32] or voice exemplars,[33] 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.[34] On the
other hand, certain non-verbal conduct may be testimonial. For example, if the suspect
nodded their head up and down in response to the question "did you kill the victim", the
conduct is testimonial, is the same as saying "yes I did", and Miranda would apply.[35]
3. The evidence must have been obtained while the suspect was in custody.[36]
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".[37] 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.[38] 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.[39]
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.[40] 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.[41] 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.[42]
4. The evidence must have been the product of interrogation.[43]
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'".[44] 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?"[45] 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. (Note that the police will
not tell the person that they have the right to refuse to perform the test, and the refusal
cannot be used in evidence against them, nor can they be in any way punished for refusing
to perform it, same as the police will not tell someone that they may refuse to perform a
roadside sobriety test without penalty). An incriminating statement made by an 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.[46]
5. The interrogation must have been conducted by state-agents.[47]
To establish a violation of the defendant's Fifth Amendment rights, the defendant must show
state action, so the interrogation must have been conducted by state-agents.[48] 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.[49]
6. The evidence must be offered by the state during a criminal prosecution.[50]
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.
Application of the prerequisites[edit]
Assuming that the six requirements 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.[51]
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".[52]
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 MassiahDoctrine (Massiah v. United
States, 377 U.S. 201 (1964)).

Waiver[edit]
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.[53] An express waiver is not
necessary.[54]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.[55] 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."[56] The Court has applied this same standard of
voluntariness in 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.[57] Under Connelly, a suspect's decisions need not be the product
of rational deliberations.[58] 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 forgoing 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 other 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.[59] 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.[60] 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.[60] 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[edit]
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.[61] 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 Sixth Amendment right to counsel
are stricter.[62] 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.[63] If the defendant does reinitiate
contact, a valid waiver must be obtained before interrogation may
resume.
In Berghuis v. Thompkins (2010), the Supreme Court declared in a 5–4
decision that criminal defendants who have been read
their 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. Those who oppose the ruling
contend 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".