Monday, October 3, 2011

Criminal Procedure: Miranda Rights

An essential issue when analyzing a question implicating 5th Amendment Miranda rights is a determination as to whether the rights are required. If not required, then the analysis ends there, and defendant will not be able to claim a violation of Miranda in order to keep his admissions and confessions out of court.

Miranda warnings are required once a person is in custody of a government official. Once in custody, Miranda warnings must be given prior to interrogation by the police. The warnings that must be provided include the right to remain silent, that anything said can be used against the speaker in court, the right to the presence of an attorney (this should be distinguished from the 6th Amendment right to counsel); and that if an attorney cannot be afforded, one will be appointed, if desired.

Because custody is required (see above) it's important to determine what exactly constitutes custody. Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way based on an objective standard. Once you've made the determination that an accused is in custody of a government official, you should then move on to determine whether in fact there is an interrogation, requiring Miranda warnings. An interrogation includes any words or conduct by the police that they should know is likely to elicit a response. A common fact pattern on the MBE presents a situation in which an accused spontaneously makes a statement without being actively questioned by the police. Because the statement was not elicited by the police, the statement was not the result of an interrogation, and that statement will not be kept out of court on a basis of lack of Miranda warnings.

Some final points to keep in mind: Miranda rights can be waived, but the burden will be on the prosecution to prove that the waiver was knowing, voluntary, and intelligent. If, on the other hand, an accused indicates that he would, in fact, like to remain silent, the police must honor this request, although the police can later question the accused on an unrelated crime. If the accused indicates that he wishes to speak with counsel, all questions must cease until counsel has been provided. Note this important distinction: If the accused indicates that he wishes to remain silent, the police can re-question him later about an unrelated crime, but if the accused requests counsel, there can be no re-questioning until counsel is provided.

Finally, note that statements obtained in violation of Miranda, though not admissible for the purpose of proving defendant's guilt at trial, may be used to impeach defendant's testimony if he chooses to testify at trial.


  1. How would you logically organize the many defenses in a contracts course?

  2. A terrorist should have no Miranda rights. The arresting investigator should have at minimum seven months to complete his or her investigation before the fish is returned to the sea. Seven months to make a case stick is all you can ask for.

    Chief Michael White Sr

  3. This is why I advocate for advanced and enhanced interrogation techniques.


  4. I was arrested in 2001 - November - for possession of a controlled substance. The drugs were not mine. In fact I was working undercover and purchased the dope and tried to retrieve a warrant from the Sheriffs dept (task force hq) and was turning the drugs in as evidence. They arrested me and didn't read me my rights. I served time over the deal. So explain this to me.