It's the phrase everyone knows, maybe from a movie, maybe from a
TV cop show. You've probably even practiced
it in the mirror getting ready for your crim pro exam.
You have the right to remain silent.
I. Think we've all done that?
But what does that, you know, that universal pop culture catch
phrase actually mean when you're dealing with the bedrock of
constitutional criminal law, right?
For any student, the doctor around confessions and police
questioning. I mean, it's not just theory.
It's where your legal analysis lives or dies on the page.
It absolutely is and look for anyone studying for the bar or
gearing up for finals, mastering the landscape of confessions is
completely non negotiable. So.
That's what we're doing today. We are diving deep into probably
the most litigated and definitely the most tested
doctrine in criminal procedure, focusing specifically on how the
5th Amendment regulates that interrogation room.
OK, so let's unpack this right from the start.
Yeah, because the minute a prosecutor tries to introduce a
statement, a confession into evidence, you, the future
lawyer, you need to recognize that the statement is
immediately vulnerable, and it's vulnerable to attack from three
distinct constitutional lanes. That's the critical starting
point. That's the framework for any
analysis. People think Miranda, but the
regulation of confessions It doesn't just rest on Miranda.
It falls into three very distinct, though sometimes
overlapping categories. 1st and historically the oldest, you
have the due process clauses. 5th and 14th Amendment.
Exactly. And they demand that any
confession be voluntary. That's sort of the baseline, the
reliability and fairness floor. OK, so that's lane one.
Lane one. OK, second, we have the modern
framework, the 5th Amendment self incrimination clause, which
is what gives us the Miranda rule and all its required
warnings. The one everyone knows.
And finally, lane three, you
have the 6th Amendment assistance of counsel clause,
which uses a completely different trigger.
It's based on whether the right to counsel has attached.
So since we're really dedicating this deep dive to that big
central 5th Amendment framework, what's our mission today?
What do we want the listener to walk away with?
Our mission is to give you that exam ready analytical structure
for the 5th Amendment, and that means defining the dual trigger
custody and interrogation, detailing exactly what warnings
are required, and then dissecting the standards for a
valid waiver. And most critically.
Most critically isolating the key exceptions to the
exclusionary rule. These are the exceptions that
police and prosecutors use, and they are absolutely the ones
that professors love to test. So the goal is you walk away
with a clear structure, the key case holdings so you can
confidently analyze those, you know, those complex multi
layered fact patterns they love to throw at us.
So we have to start at the very beginning, right before Miranda
even existed. We have to.
Historically, the entire game revolved around due process and
this idea of voluntariness. The core rule here?
It sounds deceptive. Simple.
Only voluntary confessions are admissible.
Yes, and while it seems simple, the standard itself is highly
subjective. It depends entirely on the
totality of the circumstances. So.
What does that mean? Totality of the circumstances.
It means a statement is deemed involuntary if it results from
some kind of coercion or compulsion, whether that's
physical or psychological. That effectively over bears the
suspects will. It breaks their will.
It undermines their desire to
remain silent. So it's really a two-part
inquiry. You're looking at the suspects
own characteristics, their age, education, mental state and
you're weighing that against the details of the police pressure
being applied. Like the duration of the
questioning, any threats, deprivation of food or sleep.
All of it. And to really grasp why the
Supreme Court eventually felt the need for something as rigid
as Miranda, you have to go back. You have to revisit the
historical backdrop, specifically the infamous case
of Brown V Mississippi. Yeah, this case is it's
essential context for understanding the whole
constitutional shift. Absolutely.
Brown V Mississippi is where the Supreme Court really asserted
its authority. It stepped in to supervise state
criminal justice systems and enforce this voluntariness
requirement. And the facts, I mean, the facts
are brutal and they're undeniable.
These defendants were physically tortured.
They were whipped. They were hung from trees until
they confessed. This was pure, unadulterated
physical compulsion. And the reason those confessions
were barred was twofold, wasn't it?
It wasn't just that they were profoundly unfair.
Right. They're also inherently
unreliable. Of course, if you torture
someone, they'll say anything. Precisely so due process.
It protects both reliability and fundamental fairness.
When you apply that kind of physical compulsion, the
resulting statement is probably false, so it's unreliable.
And the method itself, it just violates the basic premise of
justice required by the 14th Amendment.
So that case and others like it, they showed that this
subjective, you know, case by case voluntariness test just
wasn't enough. It wasn't deterring widespread
police abuse. And that, ultimately, is what
paved the way for the creation of Miranda.
OK but that sounds like a long way from the modern non physical
interrogation room. So if Miranda is usually the
first layer of analysis we apply today, is due process
voluntariness still relevant? Why should a student spend time
on it? It is absolutely still relevant,
and this is a critical distinction for your exam
analysis. It's a common mistake to just
jump to Miranda and forget this. OK.
While Miranda is that prophylactic layer, due process
voluntariness remains an independent constitutional check
against coerced statements. So if you find, based on the
totality of the circumstances, that the police compulsion was
so overwhelming it literally broke the suspects will, that
confession is deemed involuntary under due process.
And what's the consequence of a due process violation compared
to, say, a Miranda violation this is?
Key The consequence is absolute. If a confession is deemed
involuntary under due process, that statement is inadmissible
for all purposes. All purposes.
All purposes, no exceptions apply.
This is the ultimate constitutional safety net, and
actually coerced confession, whether it seems reliable or
not, cannot be used against the defendant in court.
Period. And that's a crucial distinction
from the Miranda violations we're going to talk about, which
have several exception. A world of difference.
So that distinction brings up a common modern technique, police
misrepresentation of evidence. We see it on TV all the time.
The cops tell a suspect their partner confessed or that their
DNA was found at the scene, even if it wasn't true.
Does lying to a suspect about the evidence automatically make
a confession involuntary under due process?
No, and this is a really important area for nuanced
analysis. The Supreme Court and later
state courts have made it really clear that police deception
about evidence is merely one factor to be considered in that
totality of the circumstances. Just one factor.
Just one. It does not automatically
establish involuntariness. So let's play this out.
The police lie about DNA evidence, but the suspect is,
say, an educated adult. The interrogation is short.
They aren't deprived of sleep or food.
That confession might still be voluntary.
That's exactly right. The focus remains was the
suspects will actually overborn? Did the coercion eliminate their
rational capacity for choice? So the lie itself isn't enough.
If the police misrepresentation wasn't accompanied by other
extreme tactics like threats of physical violence, refusing
access to medication, or, you know, exploiting a known severe
vulnerability like a very low IQ or extreme youth, the confession
may still be deemed voluntary under due process.
It's the combination of factors that matters, not the single lie
itself. OK, so having established that
due process sets that absolute floor for reliability and
fairness, we can now move to the elephant in the room.
The big one. The Miranda rule.
The court created this entire structure of warnings as a
prophylactic shield against the very pressures we were just
talking about. Right Miranda V Arizona 1966.
It rooted its authority in the 5th Amendment Self Incrimination
Clause, which through the 14th Amendment, applies to state
proceedings. And the core finding.
The core finding was that custodial interrogation, and
that's questioning by police when the suspect is formally
arrested or otherwise deprived of their freedom in a
significant way. That situation contains
inherently compelling pressures. Inherently compelling pressures.
That's a phrase you need to underline in your notes.
What exactly did the court mean by that?
Well, they recognize that the dynamics of the interrogation
room itself were, by design, intended to break down a
person's resistance. You have isolation from the
outside world, separation from family or a lawyer, and the use
of, you know, sophisticated psychological tactics by trained
interrogators. Out of level playing field.
Not at all. It creates a situation where
even without any physical coercion, A suspect may feel
compelled to speak. So the purpose of the Miranda
warnings, it's not to stop confessions entirely, but it's
to alleviate these pressures. To kind of rebalance the scale.
Exactly. The warnings are there to ensure
the individual can exercise a free and informed judgement
while under suspicion. It gives them a meaningful
opportunity to exercise their 5th Amendment privilege.
OK, this brings us to probably the most crucial conceptual
point for exam mastery, the idea that the Miranda rule is
prophylactic. It's a rule designed to protect
a right, but it is not the right itself.
Exactly. You have to get this.
The Miranda rule is a set of prophylactic rules that sweep
beyond the actual protections of the self Incrimination clause
itself. What does that mean in practice?
It means that failing to give a Miranda warning is not a direct
violation of the 5th Amendment. It's not.
No. It's a violation of a procedure
that the Supreme Court mandated to protect the 5th Amendment.
OK, why is that distinction so important?
It sounds a little academic. Is everything.
It's so important because it dictates the consequences and
more importantly, the exceptions.
If the failure to warn were a direct constitutional violation,
then any evidence that came from it would be barred under the
fruit of the poisonous tree doctrine, just like a Fourth
Amendment violation. But it's not.
But since it's only a violation of a prophylactic rule, the
courts have been able to subsequently carve out several
big exceptions that allow evidence derived from unwarned
statements to be admitted. And we'll get into those United
States people saying is the prime example of the power of
this prophylactic classification.
OK, so to satisfy this prophylactic rule, what are the
four core safeguards? What has to be said before a
custodial interrogation begins? The police have to clearly
inform the suspect of four things.
One, the right to remain silent, 2 that anything said can and
will be used against the suspect in court, 3 the right to consult
with an attorney and have the attorney present during
questioning, and four, that if the suspect is indigent, a
lawyer will be appointed for them.
And they have to be given clearly, unequivocally,
absolutely. So if the police failed to
provide these safeguards before questioning A suspect who is in
custody, what's the general consequence?
The general consequence is suppression of the statement.
Any incriminating statements, whether they're inculpatory like
a full confession, or exculpatory, like a denial, that
contains facts that later contradict the suspect's
defense. Which could be just as damaging.
Often more damaging, those statements made during that
unwarned custodial interrogation are generally inadmissible in
the prosecution's case in chief. As we mentioned, this was a huge
deal, a highly controversial decision, and that debate really
hasn't ended. Justice Harlan, in his dissent,
famously argued the court went too far, too fast.
Yes, he said, it was forever adding new stories to the
temples of constitutional law and that policy debate about
whether Miranda unduly restricted legitimate law
enforcement. It just resurfaces constantly.
And linking that controversy to today, you mentioned the recent
case of Vega Viteco. This ruling really highlights
how the current court views the prophylactic nature of the rule.
It really does. Explain the significance of that
case for our listeners, especially for anyone concerned
with police accountability. So in Vega Viteco, which is just
in 2022, the Supreme Court ruled that police officers cannot be
sued under Section 1983, a specific federal statute, for
merely failing to administer the Miranda warning.
So no civil liability. Right.
The court reasoned that because the warning is only a
prophylactic rule and not the constitutional right itself, the
failure to warn doesn't constitute a deprivation of a
constitutional right, which is what's necessary for that kind
of civil suit. Wait, so let me get this
straight. An officer violates Miranda,
gets confession. That confession gets suppressed,
but the suspect still can't sue that officer for violating their
rights. That's correct.
The remedy for a Miranda violation is solely the
exclusion of the testimonial statement for the prosecution's
case in chief. There is no independent civil
cause of action for violating the prophylactic rule.
And critics, of course, argued immediately that this ruling
makes it easier for police to pursue unwarned statements
because it reduces the personal incentive, the accountability
for the officer. It really lends credence to
Harlan's old critique about the shifting nature of this
constitutional structure. OK, that background gives us the
why and the consequences. Now let's tackle the when.
This is where exam answers rise or fall.
This is everything. Miranda warnings are only
required when a suspect is subjected to custodial
interrogation. Both elements must be present.
So let's start with custody. What is the objective standard
we use to determine if someone is in custody?
The standard is objective and it relied on the totality of the
circumstances. Custody exists if a reasonable
person in the suspect's position would have believed they were
not free to leave or terminate the interview.
A reasonable. Person A reasonable person.
And crucially, the focus is entirely on the suspect's
perspective, not the subjective, unexpressed intent of the police
officer. If the officer secretly planned
to arrest the suspect all along but acted calmly and said you're
free to go, the suspect wasn't in custody for Miranda purposes.
I find that students, myself included, often get tripped up
by situations that look like custody but legally are not.
So let's hit the trickiest exam trap, starting with individuals
who are already incarcerated. Yes, this is a classic trap
because intuitively, if you're in jail, you're in custody.
Of course you are. But Miranda custody is about the
further deprivation of liberty that creates that specific
course of atmosphere of an interrogation.
In Housby feels. The court held that a jail
inmate questioned about an unrelated offense is not
automatically in Miranda custody.
How is it even possible? They are literally not free to
leave the jail. I know it sounds
counterintuitive, but the court's reasoning is that the
course of nature of the questioning is lessened by their
existing incarceration. If the inmate is brought to,
say, a conference room, they're not physically restrained beyond
their normal confinement. They're not threatened and this
is critical. They are told you are free to
end this questioning and go back to your cell at any time.
In that case, the atmosphere isn't considered unduly coercive
enough to trigger the Miranda warnings.
Psychological pressures are viewed as less severe than those
facing a private citizen who suddenly pulled off the street
and isolated in a police station.
And we saw this mirrored in a Michigan case, People V Cortez,
right, involving A prisoner question about a weapon in his
cell. Correct, the Cortez court echoed
Fields. In that case, the defendant was
handcuffed and consigned in an office with a closed door.
But the questioning was very brief, only 15 minutes, and the
corrections officer was non threatening.
So even with handcuffs. Even with handcuffs, because the
coercive aspects common to station house interrogations
were absent, the court found he wasn't in Miranda custody.
The key take away here for your exam is incarceration alone does
not equal Miranda custody. You have to look for a new
significant restraint or a coercive environment beyond the
normal prison routine. OK, let's move outside the jail.
What about questioning that happens during, say, a routine
traffic stop? Or inside a suspect's own home.
Routine traffic stops or brief Terry stops.
Those temporary detentions justified by reasonable
suspicion. They typically do not constitute
custody. Why not?
Because a reasonable person understands that those stops are
temporary and brief. You expect you'll be released
once the officer finishes the inquiry.
And People V Jones, for instance, the defendant was
asked to sit in the police cruiser while her car was
searched, but she wasn't handcuffed and was explicitly
told she was not under arrest. So she was free to leave once
the officer was done. Exactly.
So no custody. And similarly, when police
question a suspect inside their own home, it rarely constitutes
custody. Your own home is supposed to be
your castle, right? Not a coercive environment.
Exactly. In People, Yvonne, you had
plainclothes officers who entered the defendant's home
with his mother's permission. They didn't draw their weapons,
and they didn't restrict his movement while questioning him.
That home environment, it's the opposite of the station house.
It generally alleviates the coercive pressures Miranda was
designed to counter. OK, I have to ask about the
People V Leminsky case because this one to me is completely
counterintuitive. You have a suspect questioned in
a hospital bed, physically blocked by detectives.
How can that person possibly be considered not in custody?
That feels like a huge restraint.
That's where the analysis has to be really rigorous, and that's
exactly why professors love to test this concept.
I'm sure they do. Lewinsky shows that a perceived
physical inability to leave isn't the only factor.
Yes, in Lewinsky, the defendant was in a compromise vulnerable
state, and yes, the detectives were positioned to block his
exit. So he couldn't leave.
He couldn't physically leave, but the Michigan Supreme Court
focused on the tone and the purpose of the questioning.
The pre Miranda interrogation was consistently non accusatory.
The detectives were conducting an investigation.
They were seeking information, not pressing for a confession
since the environment, despite the hospital bed, was not unduly
coercive in an interrogatory sense, the court found the
suspect was not in Miranda custody.
So if the police were gentle, ask neutral questions, and
didn't give off the vibe that they were about to arrest him,
that lack of accusation actually overrides the physical
restraint. Precisely the reasonable person
test has to ask, would I feel free to terminate the interview?
Not necessarily. Can I walk out of this building
right now and if the police are making it clear this is just
informational and I can stop talking whenever I want even if
I'm physically confined, I may not be in Miranda custody.
Let's touch on deception again, but this time in the context of
custody. The People View Wade case where
you have an incarcerated suspect on the phone with his girlfriend
who's secretly working for the police.
In Envy Wade, the court held there was no custodial
interrogation. Yes, the police absolutely used
deception to get the statement, but you have to analyze it from
the suspect's perspective. He thinks he's talking to his
girlfriend. Exactly.
And he surely believed he was free to terminate that
conversation at any time just by hanging up the phone, since he
perceived he had control over the interaction.
The essential coercive element of Miranda custody, that loss of
freedom to terminate the interaction, it was absent.
Deception alone doesn't create custody, especially when the
suspect thinks they're in control of the dialogue.
OK, that sets a very, very high bar for proving custody.
So let's move to the second trigger, interrogation.
Even if a suspect is in custody, they also have to be subject to
interrogation. What's the standard here?
From Rhode Island, via Ennis. Gave us the definition and it's
that interrogation means not just direct questioning, but
also any words or actions by law enforcement that the officer
should know are reasonably likely to elicit a self
incriminating response from the individual.
The should know standard. It's an objective likelihood
test. That's the key.
This is a perfect place to use the famous facts of Ennis to
illustrate this doctrine. Absolutely.
The case involved Innis, a robbery suspect who was arrested
and given his Miranda warnings, and he invoked his right to
counsel, so questioning should have stopped while he's being
transported in a police car. Two officers who knew Innis was
religious start discussing aloud how terrible it would be if a
disabled child from a nearby school found the shotgun used in
the robbery. They called it the Christian
burial speech. And what happens?
Innis immediately tells them where the gun is.
So the Supreme Court had to decide, was that dialogue
between the officers interrogation?
Correct. And the court said no, it's
close call. Well, the officers knew Innis
was religious. There was no evidence.
They knew he was particularly sensitive to the thought of
children finding the weapon, so the court found that the
officers dialogue was not something they should have known
was reasonably likely to elicit an incriminating response.
So it wasn't seen as a blatant attempt to play on his known
weaknesses. Right.
It was deemed more of a spontaneous exchange between the
officers. This established that the
objective likelihood of eliciting a response is the
focus, not the subjective unexpressed intent of the police
to get a confession. That is a very close call, which
is why it's so critical for the exam.
The focus is on that objective likelihood.
So what about spontaneous statements?
What if a defendant just blurt something out while they're in
custody but before questioning is even started or after it's
ended? That falls under the exception
for spontaneous or volunteer statements.
If a defendant makes an inculpatory statement during a
routine police procedure that is clearly not designed to elicit a
response, that statement is admissible.
Can you give us an example of that kind of routine procedure?
People V Leafy is a good example from Michigan.
After the police had concluded their formal questioning, they
began a routine pat down to the defendant for officer safety
before transporting him. Standard procedure.
Right. And during the security measure,
the defendant made an incriminating statement.
The court ruled the statement was admissible because the pat
down was aimed purely at officer safety.
It wasn't an action that the officer should have known was
likely to elicit an incriminating response.
Once the interrogation is over. Spontaneous admissions are not
barred by Miranda. OK, so we've established the
trigger, custody plus interrogation.
Now let's move to the next stage.
The suspect has been warned they can either waive those rights or
they can invoke them when the prosecution wants to admit a
statement. What's their burden regarding
the waiver? The prosecution bears an
affirmative burden. They have to show that the
warnings were given and that the suspect made a valid waiver.
And the standard of proof here is the preponderance of the
evidence which was established in Colorado V Connolly.
So a lower bar than beyond a reasonable doubt.
Much lower, but it still requires proof that the waiver
was valid based on that totality of the circumstances.
What if the defendant had some kind of mental illness or
cognitive impairment? Does that automatically
invalidate the waiver under Connolly?
That's a great question, and Connolly is very important here.
The court ruled that while a defendant's mental condition is
certainly relevant, it is not dispositive.
Critically, to invalidate a waiver, there must be evidence
of police coercion. Police coercion.
It all comes. Back to that it does.
If the defendant confessed because of a command voice they
believe they heard in their head, but the police did nothing
coercive, the confession is still admissible provided the
police got a proper waiver. Police coercion is the
prerequisite for finding a statement involuntary or a
waiver invalid. And to be valid, the waiver has
to satisfy 2 prongs right? These two are non negotiable.
Absolutely. First, the waiver must be
voluntary. It has to be the product of a
free and uncoerced choice. No external compulsion should
taint the decision. Second.
Second, it must be knowing and intelligent.
This requires A suspect to have a full awareness of both the
nature of the rights they're abandoning silence counsel, and
the general consequences of abandoned them, meaning what
they say can be used against them.
On that knowing an intelligent prong, what's a common mistake
that students often make about what the suspect needs to
understand? The mistake is thinking the
suspect needs to understand the ultimate legal ramifications of
their decision. Meaning what?
Meaning how this confession will specifically impact their
eventual trial strategy or defense.
They don't need to know that. The Michigan Supreme Court
clarified this in People V. Cheat them.
Miranda requires the accused to be advised of their rights so
they can make a rational decision, not necessarily the
best one or one based on perfect legal foresight.
So a bad decision is still a valid waiver.
Lack of foresight is legally insufficient to invalidate an
otherwise proper waiver. OK, let's turn to the flip side,
invoking the rights If a suspect wants to stop the questioning,
how clear do they have to be? This is where the doctrine takes
a sharp and frankly controversial turn towards law
enforcement convenience, largely due to Berkeley's V Tompkins.
They have to be crystal clear, and this is the exam point that
trips up most students who rely on Hollywood movies for their
law A. Dangerous source.
Very. Under Berg Whis V Tompkins, a
suspect statement must be unambiguous or unequivocal to
invoke the right to silence or the right to counsel.
If this statement is ambiguous, like maybe I should talk to a
lawyer or I don't think I should say anything else, the police
are not required to stop the interrogation.
They can just keep going. They can keep going.
Wow. That feels like it guts the
original Miranda promise. If you're in a stressful,
coercive environment, the court is now requiring you to be
articulate and precise, almost like a practicing lawyer, just
to stop the questioning. That is precisely the scholarly
critique of the case. The Tompkins majority felt that
requiring officers to stop and clarify every ambiguous
statement was too burdensome, so they put the burden squarely on
the suspect to speak up clearly. So if the suspect gets the
warnings and then says nothing or says something ambiguous,
the. Police are entitled to continue
questioning until the suspect unambiguously invokes the right.
And Tompkins also established a critical way for the prosecution
to prove waiver without any explicit statement.
Can you detail this implied waiver doctrine that came out of
it? Yes, in the Tompkins case
itself, the defendant remained largely silent for almost 3
hours after getting the warnings.
He never explicitly said I'm invoking my right to silence.
Three hours. Finally, after hours of
persistent questioning, he made a single incriminating
statement, and the Supreme Court found that this subsequent
statement, after having been read the warnings and presumably
understanding them, constituted an implied waiver.
An implied waiver after three hours of silence.
This is a powerful rule. It means police can continue
questioning an in custody suspect who has received but
neither explicitly waived nor explicitly invoked their rights.
The mere fact of making an uncoerced statement after
receiving warnings and understanding them can imply a
waiver. So that's why some scholars
argue that Tompkins created an implied waiver doctrine on
steroids. Absolutely, because it allows
silence followed by an incriminating statement to
satisfy what's supposed to be a heavy burden of proving waiver.
OK, so now we move to what happens when a violation
actually occurs when an unwarned statement is taken during a
custodial interrogation. Before we get to the big federal
exceptions, let's briefly touch on a modern state specific
safeguard, Michigan's statutory requirement for recording
interrogations. Yes, this is crucial for local
practice. It's a critical law.
MCL 763.8 Michigan mandates that interrogations for certain major
felonies that happen in custodial detention must be time
stamped audio visual recordings. And does that include the
reading of the rights? It does.
The statue specifies that this recording must include the law
enforcement officials notification of the individuals
Miranda rights and this applies to major felonies like murder,
first degree criminal sexual conduct, armed robbery and
others. So what's the consequence if the
police failed to record a major felony interrogation?
Is the confession automatically tossed out?
No, and this is the vital distinction that you must know
for Michigan criminal procedure. It's not an automatic exclusion.
The statute MCL 763.9 states that the failure to record does
not prevent law enforcement from testifying about the statements
contents, provided the statement is otherwise admissible.
So if it was voluntary. Exactly.
But there is a mandatory instruction for the jury, and
this is the real safeguard, OK. What do they have to be told?
If the statement is admitted, the jury must be instructed that
state law requires these statements to be recorded, and
they are specifically told that they may consider the absence of
a recording in evaluating the evidence relating to the
individual statement. So gives the defense a powerful
argument. A very potent argument to raise
reasonable doubt about what was actually said versus what the
police are claiming was said. OK, a great tool even without
exclusion. Let's turn to the federal
Supreme Court exceptions that allow the admission of unworn
statements for specific purposes. 1st The Impeachment
Exception from Harris V New York.
Here's established that statements obtained in violation
of Miranda so unwarned statements from a custodial
interrogation, but that were otherwise voluntary under the
due process standard, may be used to impeach the defendants
credibility. OK, so a statement that's barred
from the prosecution's case in chief can still be used if the
defendant takes the stand. What's the policy behind that?
The court's rationale was about striking a balance a balance
between deterring police misconduct and preventing
perjury. So Miranda isn't a license to
lie. Exactly.
The shield of Miranda cannot become a license to testify
falsely. If a defendant takes the stand
and offers testimony that's inconsistent with their prior
unwarned statement, the prosecution can bring up that
prior statement on cross examination to show the jury
that the defendant has, well, lied before.
And the jury is instructed to only use it for credibility.
Typically, yes, they are told they can only use this prior
statement to weigh credibility, not as substantive evidence of
guilt. But let's tie this back to due
process, because this is where students often collapse the
analysis. When does the Harris exception
absolutely fail? It fails when the underlying
statement was not voluntary. Remember the absolute bar we
talked about at the beginning, right?
If the statement was actually coerced, meaning it violated due
process voluntariness standard, it is inadmissible for all
purposes, and that includes impeachment.
The Court will not allow the introduction of a statement
secured through brutality or overwhelming coercion, not even
to challenge credibility. OK, next let's discuss the
physical fruits exception from United States Vipatane.
This deals with physical evidence derived from an
unwarned confession. This is another one that feels
counterintuitive. If the confession itself LED
police directly to the murder weapon, isn't that weapon still
fruit of the poisonous tree, even if it's non testimonial?
That is the exact question the court answered in Petain, and
the answer stems directly from that prophylactic nature of
Miranda we keep talking about. It all comes back to that.
It does. The rule is clear physical
evidence, so non testimonial evidence obtained as a direct
result of unwarned but otherwise voluntary statements given in
violation of Miranda is not subject to the exclusionary
rule. So where's the line?
What is the logic behind and letting the gun in but not the
statement about the gun? The logic lies squarely in the
5th Amendment's text. The 5th Amendment prohibits
compelling a person to be a witness against himself.
It prohibits compelling testimonial evidence.
Commutative. Evidence right.
Since a physical piece of evidence like a gun or drugs is
non testimonial, and since the underlying Miranda failure is
just a violation of a prophylactic rule, not the
constitutional right itself, the physical evidence found as a
result is not barred. The court essentially said
there's no 5th Amendment violation to deter here by
excluding the physical evidence because the compulsion only
targets testimony. So let's walk through it.
Police ask an unwarned suspect in custody where's the gun, and
the suspect says it's under the bed.
The prosecution cannot admit the statement it's under the bed in
their case in chief. Because that's testimonial.
But they can admit the gun itself.
Exactly. The testimonial statement is
suppressed because the Miranda procedure was violated.
The gun, however, is admissible because it is physical evidence.
This distinction is paramount for your analysis, and it really
showcases the current limitations of Miranda as a
deterrent. OK, finally, let's cover the
third key exception, the public safety exception from New York V
Quarrels. Quarrels carved out a major,
very pragmatic exception. The rule is if an officer is
reasonably prompted by an overriding concern for public
safety, they can question a suspect in custody without first
providing Miranda warnings. And the statement is admissible.
The resulting statement and any physical evidence derived from
it will be admissible. Can you give us the classic
quarrel scenario to illustrate how this works?
Of course, in quarrels, the suspect was arrested in a
supermarket and subdued. The officer noticed he had an
empty gun holster and immediately before reading him
his rights, asked where is the gun?
And quarrels answered. He did.
He responded by pointing toward the weapon, which was hidden
nearby. The Supreme Court admitted both
his statement and the gun. The standard is objective, and
it recognizes that officers have to act spontaneously during
arrests. So public safety Trump's
Miranda. The Court held that the
immediate need to protect the public from the risk posed by a
discarded hidden weapon in a public place outweighs the need
for the prophylactic Miranda rule.
The danger to the public was the paramount concern justifying the
delay of the warnings. OK, We've covered the entire 5th
Amendment framework and its main exceptions.
Now we have to quickly address that 3rd lane of constitutional
attack we mentioned way back in the intro, the 6th Amendment.
Yes, students frequently confuse the 5th and 6th Amendment rights
to counsel. How do they differ in terms of
when they attach? This is a vital exam
distinction. The 5th Amendment right to
counsel is a procedural safeguard tied to Miranda.
It attaches the moment you are subjected to custodial
interrogation. It's simple enough.
The 6th Amendment right to counsel, on the other hand, is a
substantive right guaranteeing an attorney at critical stages
of the prosecution. It attaches when judicial
proceedings have formally commenced against the defendant.
So what does that mean? Formally commenced.
Typically, it's at the formal charge, the preliminary hearing,
the indictment, or the arraignment.
The moment one of those happens, the government cannot
deliberately elicit statements from the defendant about the
specific offense for which they are charged, even if they aren't
in custody. So 5th Amendment Council is
about coercion in the interrogation room pre charge
and 6th Amendment Council is about fairness in the
adversarial system after the state has committed to
prosecuting the case. Precisely.
And another key difference, the 6th Amendment right is offense
specific. So if you are arraigned for bank
robbery, let's call it offence A, the police can't question you
about that bank robbery without your lawyer, but they can still
question you about a totally separate uncharged homicide,
Offence B, provided you're not in Miranda custody for the
homicide. That's a huge distinction.
OK, moving back to the Fifth Amendment scope, let's just
reiterate that crucial difference between testimonial
and physical evidence, because that really defines the limits
of the privilege itself. Right.
This distinction comes directly from the self incrimination
clause and was clarified way back in Smurver V California.
The 5th Amendment protects only evidence that is testimonial in
nature, meaning meaning evidence that relates to a commutative
act or writing by the petitioner.
You cannot be compelled to say something or write something
that incriminates you and. What about physical evidence?
Physical evidence is outside that protection.
In Schmerber, the court held that requiring A defendant to
submit to a blood test to determine alcohol content was
not protected by the 5th Amendment, even though the
result was incriminating. Why not?
Because the blood test result is physical evidence, it's not
testimony. It's not communicating a
thought. Similarly, compelling a suspect
to provide a handwriting sample of voice exemplar fingerprints
or to wear specific clothing is not protected by the 5th
Amendment. Let's conclude by discussing a
critical trial issue, the use of a defendant's silence as
evidence. How does the timing affect
whether silence can be used against someone?
We have to break this down into 3 distinct moments.
Pre arrest silence, post arrest, pre Miranda silence, and post
arrest, post Miranda silence. The timing dictates the rule.
OK, let's focus on that last one first, the post arrest, post
Miranda silence, which is governed by Doyle V Ohio.
Under Doyle, a defendant silence after receiving Miranda warnings
is generally inadmissible against them at trial.
The State cannot use the fact that the defendant exercised a
right the State had just guaranteed they possessed the
right to remain silent as evidence of guilt.
It would be fundamentally unfair.
Exactly. The prosecutor cannot refer to
the defendant's failure to tell police an exculpatory story
after they've been arrested and Mirandized.
But there is an impeachment exception to Doyle, isn't there?
There is. If a defendant takes the stand
and testifies to some exculpatory version of events,
and then falsely claims during cross examination that they told
the police that same story upon arrest, the prosecution can use
their prior silence to impeach. That's specific false claim.
So they can only impeach the claim that the story was told,
not use the silence itself as evidence of guilt.
It's the fine line exactly. And what about silence that
occurs before an arrest, before the state has guaranteed any
right to silence? That is pre arrest silence in
Michigan. It's governed by People V
Hackett. Pre arrest silence is admissible
for impeachment purposes if the defendant chooses to testify.
But not as substantive evidence of GILP.
Correct, and this is a point of frequent confusion.
Pre arrest silence is not admissible as substantive
evidence to prove guilt. You can't use the failure to
deny an accusation to prove that the accusation is true.
It can only be used to assess the defendants credibility as a
witness. So that distinction between
using silence for impeachment versus using it as substantive
evidence of guilt is vital. It protects the jury from
improperly inferring guilt just because the suspect didn't talk
to the police before they were formal charged or arrested.
Exactly. It forces the jury to use that
evidence only to assess credibility, which ensures that
the presumption of innocence remains intact unless
substantive evidence proves otherwise.
This has been a necessary and I think a very rigorous deep dive
into the 5th Amendment. We've covered the due process
floor, the Miranda prophylactic shield, the technical triggers
of custody and interrogation, the controversial standards for
waiver and invocation, and all those critical exceptions that
limit the exclusionary rule. The key take away for any
student walking into an exam is this.
Never ever collapse the three lines of cases.
You have due process, which is about voluntariness.
You have the 5th amendment which is Miranda triggered by custody
plus interrogation, and you have the 6th amendment which is
triggered by attachment. They have different triggers,
remedies and exceptions. You have to apply them
sequentially. Sequentially, was the statement
voluntary? If yes, was Miranda triggered?
If Miranda was violated, does one of those key exceptions,
Harris, Patan quarrels or a state recording statute, apply?
So we've discussed how the Supreme Court has carved out
these numerous exceptions to the Miranda rule, allowing physical
fruits, allowing unwarned statements for impeachment, and
the recent ruling in Vega Viteco limiting civil liability for
officers. Given all of that, what does the
Miranda rule truly protect now, and how much of its original
temple, as Justice Harlan called it, is still standing?
That is the enduring, provocative question, isn't it?
What we see today is a constitutional structure where
the remedy is very, very narrowly tailored.
Miranda still absolutely protects the prosecution's case
in chief from the admission of testimonial statements obtained
in violation of his procedure. It preserves that core principle
that you cannot be compelled to speak against yourself.
But by limiting accountability through cases like Vega and
opening the door for physical fruits through Pantane, the
incentive structure for police compliance has undoubtedly
shifted. And listeners should really
consider this. If an officer knows the most
valuable evidence, the physical evidence is still admissible
regardless of a Miranda failure, and that the failure itself
won't expose them to a civil lawsuit, what is the true
practical deterrent that's left? The debate over the
effectiveness and the scope of the Miranda warning is far from
settled. All right, everyone welcome.
Let's dive into what is easily one of the most tested and
frankly one of the trickiest areas of criminal procedure
interrogations and confessions. Pay close attention because what
we're going to build today is a complete rock solid analytical
framework. By the time we're done, you'll
be able to take any confession issue on an exam and just knock
it out of the park. So here's our road map for
today. Think of this as your attack
plan. We're going to go step by step,
starting with a big picture framework and then drilling down
into each critical component. Let's get started.
So what professor gives you a fact pattern with a confession?
Where do you even begin? Well, the most important thing
to understand is that analyzing a confession is not a single
test. It's really more like an
obstacle course for the prosecution.
For that confession to be fully admissible to prove guilt, the
prosecutor has to clear a series of distinct hurdles.
And this right here, this is your three-step checklist.
It is the absolute core of our entire analysis.
And let me be crystal clear about this.
You must analyze these in this specific order on an exam.
Don't jump straight to Miranda. That's a classic mistake. 1st
and always first, you ask, was the statement voluntary under
the due process clause? Only after that do we move on to
Miranda. Then finally, we look at the
procedural stuff, get this order down, and you are well on your
way. OK, let's tackle that first
hurdle, the voluntariness test. This is the bedrock, and it
comes from the due process clause of the Constitution.
The fundamental question we're asking here is pretty simple,
but it's incredibly profound. Was the defendant's will
overborne by police conduct? Or put another way, was this
confession a product of their own free will, or were they so
pressured, so coerced, that they had no real choice but to talk?
So how does a court figure this out?
Well, they use a standard called the totality of the
circumstances test. Now, this is not a mechanical
check the box exercise. It's the opposite.
It's a holistic, flexible inquiry.
The court is going to look at absolutely everything that
happened during that interrogation, the whole story
to get a feel for whether the police crossed a line.
And this slide, this is your issue spotting goldmine for an
exam. You need to be scanning your
fact pattern for these kinds of details.
We look at the interrogation itself.
Was it long? Were conditions harsh?
But we also look at the suspect. You know, what was their age,
their education, their mental state?
And critically, what were the police doing?
Were they using psychological pressure?
Did they make promises of leniency, which was the issue in
the Stewart case? Did they lie about the evidence,
like in Perkins? Or was the person in a
particularly vulnerable setting, like a hospital room, which was
the key fact in Lewinsky? You gather all these facts and
weigh them together to make your argument.
OK, so let's say you've gone through your analysis and you've
concluded, yes, this confession was voluntary.
So are we done? Is it admissible?
No way. And this is a huge trap students
fall into. Even if a statement is
voluntary, we are not finished. We now have to clear that second
major hurdle, the Miranda requirement.
So what triggers the need for those famous warnings?
It's this two-part test, and you absolutely need both pieces.
Miranda only applies when you have custody and in irrigation.
If you only have one without the other, Miranda is not an issue.
So for example, if a suspect is in custody but just
spontaneously blurts out a confession without being asked
anything, that's not a Miranda violation.
You've got to have both. Let's break down that first
part, custody. The test here is objective.
We don't care what the suspect was subjectively thinking, and
we don't care what the police officers secret intent was.
The only question is, from the perspective of a reasonable
person in the suspect's shoes, would they have felt free to
terminate the interview and leave?
If the answer is no, you're in custody for Miranda purposes.
Now for the second part, interrogation, and this is
another classic exam trap interrogation is not just asking
direct questions like, did you do it?
The Supreme Court in the case of Rhode Island V Innis expanded
the definition. It also includes the functional
equivalent of a question. So what's that?
It's any words or actions by the police that they should know are
reasonably likely to make the suspect say something
incriminating. The classic example is 2 cops
talking to each other in the back of the patrol car about how
terrible it would be if the kid found the missing murder weapon.
Knowing the suspect is in the backseat listening.
That's interrogation. OK, so we've got the substantive
rules down, the voluntariness test, and the Miranda
requirement. Now let's shift gears.
How does this actually work in the real world?
How does a defense lawyer take these rules and use them to
challenge a confession in court? This is the procedural battle.
The main event for this is a special pretrial hearing, often
called a Walker hearing in some states.
The key here is that this happens outside the presence of
the jury. The judge alone decides whether
the confession was obtained legally and whether it's
admissible. This is critical right?
We can't unring the bell. We don't want a jury hearing a
powerful confession only to be told later to disregard it.
So what happens at this hearing? Well, the burden of proof is
squarely on the prosecution. They have to prove by a
preponderance of the evidence that the confession was
voluntary and that they complied with Miranda.
And here's a huge procedural protection for the defendant.
They can take the stand and testify only about the
circumstances of the confession, and if they do, they can't be
cross examined about whether they actually committed the
crime. This allows them to challenge
the confession without giving up their right to remain silent at
the main trial. All right, now for our final
topic. This is a subtle but absolutely
critical point, and it's the kind of thing that separates AB
plus answer from an A on an exam.
Let's say the prosecution messes up, They violate Miranda.
The confession gets suppressed. Does that mean that statement is
completely useless to the prosecution?
Not so fast. So think about this for a
second. The whole point of suppressing
the statement is to deter police misconduct.
But what if the defendant decides to take the stand at
trial and tells a story that's completely different from what
they told the police? Should the Miranda rule act as a
license to commit perjury? That's the tension the Supreme
Court had to resolve. And this quote really gets to
the heart of the policy. The court is saying, look,
protecting A defendant's Fifth Amendment rights is incredibly
important, but the search for the truth is also important.
And we can't let the rules of evidence become a shield that
allows the defendant to lie on the witness stand without being
challenged. It's about the integrity of the
trial itself. And this brings us to the rule
from Harris V. New York, known as the
impeachment exception. And here's the bottom line.
A statement taken in violation of Miranda cannot be used in the
prosecution's case in chief. That means they can't use it to
prove the defendant is guilty. But if the defendant chooses to
take the stand and testifies inconsistently with that earlier
statement, the prosecution can absolutely use the suppressed
statement to impeach their credibility to show the jury,
hey, this person is telling two different stories, They might
not be trustworthy. So why is this such a big deal
for your exam? Because it's a perfect crossover
question that blends criminal procedure with evidence.
It creates this fascinating and difficult strategic choice for
the defendant. Do I testify and tell my side of
the story, but risk getting destroyed on cross examination
with my suppressed confession? Or do I stay silent and let the
prosecution story go unchallenged?
Professors love this stuff because it forces you to think
strategically about how different legal doctrines
intersect. If you can spot this issue and
analyze it correctly, you're going to score some serious
point.