Miranda, voluntariness, and counsel

Black-letter propositions

1. 01

   Miranda applies to custody plus interrogation or its functional equivalent; volunteered statements and routine booking questions usually fall outside.

2. 02

   Waiver must be knowing, intelligent, and voluntary; silence and counsel invocations have distinct reinitiation rules.

3. 03

   The Sixth Amendment attaches after formal adversarial proceedings and bars deliberate elicitation about the charged offense without counsel or waiver.

4. 04

   Sixth Amendment protection is offense specific; Miranda counsel protection is not.

5. 05

   Coerced statements receive broader exclusion than unwarned but voluntary statements, whose physical fruits may be treated differently.

Use this attack sequence under time

Common wrong turns

• An undercover listener ordinarily does not conduct Miranda interrogation because perceived police coercion is absent.
• Post-charge counsel rights do not automatically cover uncharged unrelated offenses.
• A statement violating Miranda may sometimes impeach; an involuntary statement may not.

Worked example

After indictment for burglary, an undercover informant deliberately prompts the jailed defendant to discuss that burglary.

Practice this topic

Miranda warnings

Cornell says a defendant cannot be questioned in custodial interrogation until made aware of the right to remain silent, that statements may be used as evidence, the right to consult an attorney and have the attorney present, and the right to a lawyer appointed if indigent. The warnings stem from the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The defendant may waive the rights if the waiver is voluntary, knowing and intelligent.

Without warnings or a valid waiver, statements may be inadmissible under the exclusionary rule, which Miranda extended to improperly elicited self-incriminatory statements.

The right to counsel

The Sixth Amendment gives a criminal defendant the right to the assistance of counsel. Cornell says the right was applied to state felony prosecutions in Gideon v. Wainwright, that there is no guaranteed right for certain misdemeanors, and that in Brewer v. Williams the right attaches at or after the initiation of judicial proceedings, whether by formal charge, preliminary hearing, indictment, information or arraignment.

The two rights differ: Miranda protects the privilege against compelled self-incrimination during custodial interrogation, and the Sixth Amendment right attaches once adversary judicial proceedings begin.

Cornell explains that the language of the warnings differs by jurisdiction while the constitutional requirement stays the same. The trigger is custodial interrogation, so a statement made in a non-custodial setting, or one that is not the product of questioning, raises different issues. Read the facts for both custody and interrogation before you decide whether warnings were required.

Frequently asked questions