Miranda: custody warnings, invoking rights, waiver, undercover agents, and Dickerson

Black-letter propositions

1. 01

   The prosecution may not use statements from custodial interrogation unless it shows procedural safeguards effective to secure the privilege against self-incrimination, including warnings before questioning that the person has the right to remain silent, that anything said will be used against the person in court, that the person has the right to consult a lawyer and have the lawyer present during questioning, and that a lawyer will be appointed if the person cannot afford one.

2. 02

   If the suspect says before or during questioning that he wants to remain silent, the interrogation must cease, and if he says he wants an attorney the questioning must cease until an attorney is present.

3. 03

   Once a suspect has invoked the right to counsel, police may not interrogate him further until counsel has been made available unless he himself initiates further communication, and a later waiver cannot be established by showing only that he responded to police-initiated questioning after being warned again.

4. 04

   A suspect must invoke the right to counsel unambiguously, so a statement such as 'maybe I should talk to a lawyer' that a reasonable officer would understand only as a possible request does not require the police to stop questioning or to ask clarifying questions.

5. 05

   The right to remain silent must also be invoked unambiguously, so a suspect who is silent for long stretches of a custodial interview has not invoked the right, and a suspect who then answers a question after receiving and understanding the warnings has impliedly waived the right.

6. 06

   A waiver must be the product of a free and deliberate choice rather than intimidation, coercion, or deception and be made with a full awareness of the right being abandoned and the consequences of abandoning it, and the waiver may be implied from the suspect's understanding of the warnings together with a course of conduct indicating waiver.

7. 07

   A waiver is valid even if the police fail to tell the suspect that a lawyer retained by a family member is trying to reach him, because events outside the suspect's presence and unknown to him do not affect his capacity to understand and relinquish his rights.

8. 08

   An undercover officer posing as a fellow inmate need not give Miranda warnings before asking questions that may elicit an incriminating response, because the coercive atmosphere of a police-dominated interrogation is absent.

9. 09

   Miranda is a constitutional rule that governs the admissibility of statements made during custodial interrogation in both state and federal courts, and Congress may not overrule it by statute.

10. 10

    Where the suspect answers some questions during a custodial interrogation he has not waived the privilege for all questions and he may invoke the right to remain silent afterward.

Use this attack sequence under time

Common wrong turns

• An ambiguous reference to a lawyer does not stop questioning.
• Silence during questioning does not itself invoke the right to remain silent.
• An undercover officer posing as a fellow inmate is not required to give warnings.
• Police failing to tell a suspect that an attorney is trying to reach him does not invalidate a waiver of Miranda rights.

Worked example

A suspect in custody is warned and says he understands. For nearly three hours he says almost nothing, then answers 'yes' when asked whether he prayed for forgiveness for the shooting. He never said he wanted to stop or wanted a lawyer.

Practice this topic

The Miranda safeguards

Miranda v. Arizona held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, and it required that the person in custody be clearly informed before interrogation of the right to remain silent, that anything said will be used against him in court, the right to consult a lawyer and have the lawyer present during interrogation, and that a lawyer will be appointed if he is indigent.

Miranda also held that if the individual indicates before or during questioning that he wishes to remain silent the interrogation must cease, that if he states that he wants an attorney the questioning must cease until an attorney is present, and that where a statement is taken without an attorney a heavy burden rests on the government to show a knowing and intelligent waiver. Dickerson v. United States held that Miranda is a constitutional decision that governs the admissibility of statements in state and federal courts and that Congress could not overrule it by statute.

Invocation and waiver

Edwards v. Arizona held that an accused who has invoked the right to have counsel present during custodial interrogation is not subject to further interrogation until counsel has been made available unless the accused himself initiates further communication, exchanges, or conversations with the police, and that a waiver cannot be established by showing only that he responded to police-initiated interrogation after being advised of his rights again. Davis v. United States held that after a valid waiver, officers may continue questioning until and unless the suspect clearly requests an attorney, an objective inquiry, and that an ambiguous or equivocal reference such as a possible request for a lawyer does not require the officers to stop.

Berghuis v. Thompkins held that the right to remain silent must be invoked unambiguously, that a suspect who was silent for long periods did not invoke it, and that a suspect who understood the warnings and then made an uncoerced statement impliedly waived the right, since a waiver may be implied through a course of conduct indicating waiver. Moran v. Burbine held that a waiver was valid even though the police did not tell the suspect that his sister had retained an attorney who had called, because events outside a suspect's presence and unknown to him have no bearing on his capacity to waive.

Undercover questioning

Illinois v. Perkins held that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response, because the essential ingredients of a police-dominated atmosphere and compulsion are lacking, and Miranda does not forbid mere strategic deception that takes advantage of a suspect's misplaced trust.

Hoffa v. United States held that the Fourth Amendment was not violated by the informer's failure to disclose his role when the defendant made incriminating statements to or in the presence of the informer, an invitee, because the defendant relied on misplaced confidence and not on the security of the hotel room, and that the conversations, being voluntary, involved no Fifth Amendment privilege.

Frequently asked questions