The Top Five: Miranda Warnings

Five things you should know regarding the 5th Amendment right to Miranda warnings for purposes of the MBE:

(1): Miranda warnings are only required once a person is in custody and knows that he is being interrogated by a government agent. You should aim to understand the custody requirement well. Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way, and this is an objective standard. In other words, the question to ask is whether a reasonable person would believe that he is not free to leave.

(2): Miranda warnings are only required prior to interrogation by a government agent. Interrogation includes both words and conduct that the agent should know would likely is likely to elicit a response by the accused.

(3): The right to receive Miranda warning can be waived, but the waiver must be knowing, voluntary, and intelligent.

(4): If after receiving Miranda warnings, a suspect claims that he would like to remain silent, the police must honor that request, but may later question the suspect on an unrelated crime, provided the suspect has not requested to remain silent regarding that unrelated crime as well.

(5): If the police fail to provide warnings and the suspect makes a statement, the 5th Amendment prevents that statement from getting admitted into evidence for substantive purposes. But note, importantly, that the statement is not excluded for all purposes in court. Specifically, the statement may be offered to impeach a witness (For example, if the statement given in violation of the 5th Amendment contradicts a previous statement made a witness, the later statement can be offered into evidence to impeach based on prior inconsistent statements).