Exceptions to Miranda
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and respond to questioning, but the Court also cautioned that the prosecution bore a “heavy burden” to establish that a valid waiver had occurred.1 The Court continued: “[a] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 2 Subsequent cases indicated that determining whether a suspect has waived his Miranda rights is a fact-specific inquiry not easily susceptible to per se rules. According to these cases, resolution of the issue of waiver “must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” 3 Under this line of cases, a waiver need not always be express, nor does Miranda impose a formalistic waiver procedure.4
In Berghuis v. Thompkins, citing the societal benefit of requiring an accused to invoke Miranda rights unambiguously, the Court refocused its Miranda waiver analysis to whether a suspect understood his rights.5 There, a suspect refused to sign a waiver form, remained largely silent during the ensuing 2-hour and 45-minute interrogation, but then made an incriminating statement. The five-Justice majority found that the suspect had failed to invoke his right to remain silent and also implicitly had waived the right. According to the Court, though a statement following silence alone may not be adequate to show a waiver, the prosecution may show an implied waiver by demonstrating that a suspect understood the Miranda warnings given him and subsequently made an uncoerced statement.6 Further, once a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly invokes them later.7
The admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt8 or for determining the sentence, at least in bifurcated trials in capital cases.9 On the other hand, the “fruits” of such an unwarned confession or admission may be used in some circumstances if the statement was voluntary.10
The Court, in opinions that bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may be used.11 Thus, in Harris v. New York,12 the Court held that the prosecution could use statements, obtained in violation of Miranda, to impeach the defendant’s testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass,13 the Court permitted impeachment use of a statement made by the defendant after police had ignored his request for counsel following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with the pre-Miranda tests for the admission of confessions and statements.14
The Court has created a “public safety” exception to the Miranda warning requirement, but has refused to create another exception for misdemeanors and lesser offenses. In New York v. Quarles,15 the Court held admissible a recently apprehended suspect’s response in a public supermarket to the arresting officer’s demand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the supermarket. The Court, in an opinion by Justice Rehnquist,16 declined to place officers in the “untenable position” of having to make instant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that resulting evidence will be excluded at trial. While acknowledging that the exception itself will “lessen the desirable clarity of the rule,” the Court predicted that confusion would be slight: “[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” 17 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule’s “simplicity and clarity” counseled against creating one.18 “[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.” 19
- Miranda v. Arizona, 384 U.S. 436, 475 (1966). See also Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and intelligent waiver need not be predicated on complete disclosure by police of the intended line of questioning, hence an accused’s signed waiver following arrest for one crime is not invalidated by police having failed to inform him of intent to question him about another crime. Colorado v. Spring, 479 U.S. 564 (1987).
- 384 U.S. at 475.
- North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a confession following a Miranda warning is not necessarily tainted by an earlier confession obtained without a warning, as long as the earlier confession had been voluntary. See Bobby v. Dixon, 565 U.S. 23 (2012). See also Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had been retained for him by a relative); Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who consented to interrogation after his request to consult with his probation officer was denied found to have waived rights; totality-of-the-circumstances analysis held to apply). Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600 (2004), however, when the failure to warn prior to the initial questioning was a deliberate attempt to circumvent Miranda by use of a two-step interrogation technique, and the police, prior to eliciting the statement for the second time, did not alert the suspect that the first statement was likely inadmissible.
- North Carolina v. Butler, 441 U.S. 369 (1979). In Butler, the defendant had refused to sign a waiver but agreed to talk with FBI agents nonetheless. On considering whether the defendant had thereby waived his right to counsel (his right to remain silent aside), the Court held that no express oral or written statement was required. Though the defendant was never directly responsive on his desire for counsel, the Court found that a waiver could be inferred from his actions and words.
- 560 U.S. 370 (2010).
- 560 U.S. 370, 384–85 (2010).
- Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that “maybe I should talk to a lawyer,” uttered after Miranda waiver and after an hour and a half of questioning, did not constitute such a clear request for an attorney when, in response to a direct follow-up question, he said “no, I don’t want a lawyer” ).
- Miranda v. Arizona, 384 U.S. 436, 479 (1966). See also Harrison v. United States, 392 U.S. 219 (1968) (rejecting as tainted the prosecution's use at the second trial of defendant's testimony at his first trial rebutting confessions obtained in violation of McNabb-Mallory).
- Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to consider the applicability of the ruling in a noncapital, nonbifurcated trial case.
- United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, described as a “nontestimonial fruit” of an unwarned statement). See also Michigan v. Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant's statement elicited without proper Miranda warning). Note too that confessions may be the poisonous fruit of other constitutional violations, such as illegal searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982).
- Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only denied the offense of which he was accused (sale of drugs), but also asserted he had never dealt in drugs. The prosecution was permitted to impeach him concerning heroin seized illegally from his home two years before. The Court observed that the defendant could have denied the offense without making the “sweeping” assertions, as to which the government could impeach him.
- 401 U.S. 222 (1971). The defendant had denied only the commission of the offense. The Court observed that it was only “speculative” to think that impermissible police conduct would be encouraged by permitting such impeachment, a resort to deterrence analysis being contemporaneously used to ground the Fourth Amendment exclusionary rule, whereas the defendant’s right to testify was the obligation to testify truthfully and the prosecution could impeach him for committing perjury. See also United States v. Havens, 446 U.S. 620 (1980) ( Fourth Amendment).
- 420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evidence of his silence after police have warned him of his right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976).
- E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979).
- 467 U.S. 649 (1984).
- The Court’s opinion was joined by Chief Justice Burger and by Justices White, Blackmun, and Powell. Justice O’Connor would have ruled inadmissible the suspect’s response, but not the gun retrieved as a result of the response, and Justices Marshall, Brennan, and Stevens dissented.
- 467 U.S. at 658–59.
- Berkemer v. McCarty, 468 U.S. 420, 432 (1984).
- 468 U.S. at 434.
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