Confessions: Police Interrogation, Due Process, and Self Incrimination

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.


The Common Law Rule.—By the latter part of the eighteenth century English and early American courts had developed a rule that coerced confessions were potentially excludable from admission at trial because they were testimonially untrustworthy.286 The Supreme Court at times continued to ground exclusion of involuntary confessions on this common law foundation of unreliability without any mention of the constitutional bar against self-incrimination. Consider this dictum from an 1884 opinion: “[V]oluntary confession of guilt is among the most effectual proofs in the law, . . . [b]ut the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.”287 Subsequent cases followed essentially the same line of thought.288

Then, language in the 1897 case of Bram v. United States opened the door to eventually extending the doctrinal basis for analyzing the admissibility of a confession beyond the common-law test that focused on voluntariness as an indicator of the confession’s trustworthiness as evidence. “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’”289 However, though this approach290 and the case itself were subsequently approved in several cases,291 the Court would still hold in 1912 that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent,292 and more than once later opinions could doubt “whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment’s protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .”293 One reason for this was that the Self-Incrimination Clause had not yet been made applicable to the states, thereby requiring that the admissibility of confessions in state courts be determined under due process standards developed from common-law principles. It was only after the Court extended the Self-Incrimination Clause to the states that a divided Court reaffirmed and extended the 1897 Bram ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation.294

McNabb-Mallory Doctrine.—Perhaps one reason the Court did not squarely confront the application of the Self-Incrimination Clause to police interrogation and the admissibility of confessions in federal courts was that, in McNabb v. United States,295 it promulgated a rule excluding confessions obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest.296 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts297 and hence not applicable to the states,298 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure,299 and was clearly informed with concern over incommunicado interrogation and coerced confessions.300 Although the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment could invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented.301 In Corley v. United States,302 the Court held that this legislation merely limited, and did not elimi-subject six hours of arrest were admissible to the extent permitted by the statute and Rules of Evidence, whereas, “[i]f the confession occurred before presentment and beyond six hours . . . , the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.”303

State Confession Cases Before Miranda.—In its first encounter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions extorted through repeated whippings with ropes and studded belts.304 For some 30 years thereafter the Court attempted through a consideration of the “totality of the circumstances” surrounding interrogation to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it.305 “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”306 Obviously, a court seeking to determine whether a confession was voluntary operated under a severe handicap, as the interrogation process was in secret with only police and the suspect witness to it, and as the concept of voluntariness referred to the defendant’s mental condition.307 Despite, then, a bountiful number of cases, binding precedents were few.

On the one hand, many of the early cases disclosed clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture,308 but other overtly coercive tactics as well were condemned. Chambers v. Florida309 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee310 held inadmissible a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas,311 voided a conviction based on a confession obtained from a suspect who had been questioned continuously over the course of three days while being driven from county to county and told falsely of a danger of lynching. “Since Chambers v. State of Florida, . . . this Court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.”312

Although the Court would not hold that prolonged questioning by itself made a resultant confession involuntary,313 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention.314 In Stein v. New York,315 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. Although the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”316 By the time of the decision in Haynes v. Washington,317 however, which held inadmissible a confession made by an experienced criminal because of the “unfair and inherently coercive context” in which the confession was made, it was clear that the Court often focused more on the nature of the coercion without regard to the individual characteristics of the suspect.318 Nevertheless, the Court did continue to cite at times age and intelligence as demonstrating the susceptibility of the particular suspects to even mild coercion.319

The “totality of the circumstances” was looked to in determining admissibility. In some of the cases a single factor could be thought to stand out as indicating the involuntariness of the confession,320 but in other cases the Court recited a number of contributing factors, including age, intelligence, incommunicado detention, denial of requested counsel, denial of access to friends, trickery, and other things, without seeming to rank any factor above the others.321 Confessions induced through the exploitation of some illegal action, such as an illegal arrest322 or an unlawful search and seizure,323 were found inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court did not assume that the subsequent confession was similarly involuntary, but independently evaluated whether the coercive actions which produced the first continued to produce the later confession.324

From the Voluntariness Standard to Miranda.—Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona.325 Though the historical basis of the rule excluding coerced and involuntary confessions, in both early state confession cases326 and earlier cases from the lower federal courts,327 was their untrustworthiness,328 in Lisenba v. California,329 Justice Roberts drew a distinction between the common law confession rule and the standard of due process. “[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.330

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that, in Rogers v. Richmond,331 Justice Frankfurter spoke for six other Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i. e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.” Nevertheless, Justice Frankfurter said in another case, “[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.”332 Three years later, in Malloy v. Hogan,333 in the process of applying the Self-Incrimination Clause to the states, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi334 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that, beginning with Lisenba v. California,335 a “federal standard” had been developed. The Court had engaged in a “shift [that] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Today, continued Justice Brennan, “the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,” when Bram v. United States had announced that the Self-Incrimination Clause furnished the basis for admitting or excluding evidence in federal courts.336

One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms: although it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois,337 it held inadmissible a confession obtained from a suspect in custody who repeatedly had requested and been refused an opportunity to consult with his retained counsel, who was at the police station seeking to gain access to his client.338 Although Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights.339

Miranda v. Arizona.—In Miranda v. Arizona, a custodial confession case decided two years after Escobedo, the Court deemphasized the Sixth Amendment holding of Escobedo and made the Fifth Amendment self-incrimination rule preeminent.340 The core of the Court’s prescriptive holding in Miranda is as follows: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”341

In the opinion of the Miranda Court, police interrogation as conceived and practiced was inherently coercive and the resulting intimidation, though informal and legally sanctionless, was contrary to the protection to be afforded in a system that convicted on the basis of evidence independently secured. In the Court’s view, this premise underlaid the law in the federal courts since 1897, and the application of the Self-Incrimination Clause to the states in 1964 necessitated the application of the principle in state courts as well. Thereafter, state and local police interrogation practices need be structured to ensure that suspects not be stripped of the ability to make a free and rational choice between speaking and not speaking. The warnings and the provision of counsel were essential, the Court said, in custodial interrogations.342 “In these cases [presently before the Court],” said Chief Justice Warren, “we might not find the defendants’ statements to have been involuntary in traditional terms[, but o]ur concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest.”343 It was thus not the application of the Self-Incrimination Clause to police interrogation in Miranda that constituted the major change from precedent but rather the prescriptive series of warnings and guarantees which the Court imposed as security for the observance of the privilege.

Although the Court’s decision rapidly became highly controversial and the source of much political agitation, including playing a prominent role in the 1968 presidential election, the Court has continued to adhere to it,344 albeit not without considerable qualification. Nevertheless, the constitutional status of the Miranda warnings has remained clouded in uncertainty. Had the Court announced a constitutionally compelled rule, or merely a supervisory rule that could be superseded by statute? In 1968, Congress enacted a statute, codified at 18 U. S. C. § 3501, designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test.345 The statute lay unimplemented, for the most part, due to constitutional doubts about it. Meanwhile, the Court created exceptions to the Miranda warnings over the years, and referred to the warnings as “prophylactic”346 and “not themselves rights protected by the Constitution.”347 There were even hints that some Justices might be willing to overrule the decision.

In Dickerson v. United States,348 the Court addressed the foundational issue, finding that Miranda was a “constitutional decision” that could not be overturned by statute, and consequently that 18 U. S. C. § 3501, which provided for a less strict “voluntariness” standard for the admissibility of confessions, could not be sustained. Consistent application of Miranda warnings to state proceedings necessarily implied a constitutional base, the Court explained, since federal courts “hold no supervisory authority over state judicial proceedings.”349 Moreover, Miranda itself had purported to “give concrete constitutional guidance to law enforcement agencies and courts to follow.”350 The two dissenting Justices in Dickerson maintained that the majority’s characterization of Miranda as providing concrete constitutional guidance fell short of holding that custodial interrogation not preceded by Miranda warnings was unconstitutional, a position with which the dissenters pointedly disagreed.351 Eleven years after Dickerson, in the 2011 case J. D. B. v. North Carolina, the number of Justices asserting that Miranda was not a constitutional rule grew to four.352 Also, that Miranda may be rooted in the Constitution does not, according to the Court, mean that the precise articulation of the warnings in it is “immutable.”353

Beyond finding that Miranda has, at the least, “constitutional underpinnings,” the Dickerson Court also rejected a request to overrule Miranda. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance,” Chief Justice Rehnquist wrote for the seven-Justice majority, “the principles of stare decisis weigh heavily against overruling it now.” There was no special justification for overruling the decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had “reaffirm[ed]” its “core ruling.” Moreover, Miranda warnings had “become so embedded in routine police practice [that they] have become part of our national culture.”354

As to the viability of Miranda claims in federal habeas corpus cases, the Court had suggested in 1974 that most claims could be disallowed,355 but such a course was squarely rejected in 1993. The subject mental trial right of the defendant, unlike the Fourth Amendment exclusionary rule addressed in Stone v. Powell,356 and claimed violations of Miranda merited federal habeas corpus review because they relate to the correct ascertainment of guilt.357 The purposes of the Miranda rule differed from the Mapp v. Ohio358 exclusionary rule denied enforcement in habeas proceedings in Stone, the Court explained, because the primary purpose of Mapp was to deter future Fourth Amendment violations, a purpose that the Court claimed would only be marginally advanced by allowing collateral review.359 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, because most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions.360

In any event, the Court has established several lines of decisions interpreting key aspects of Miranda.

First, Miranda warnings must be given prior to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”361 The cases have distilled “custody or other significant deprivation of action” into a two-part assessment under which restricting a person’s movement is a necessary but not sufficient element. Not all inhibitions of “free movement” trigger Miranda. Whether a person is “in custody” during questioning depends on the coercive pressure posed. The Court applies an objective, context-specific test of how intimidated a reasonable person in the suspect’s shoes would feel to freely exercise his right against self-incrimination. A police officer’s subjective and undisclosed view that a person being interrogated is a criminal suspect is not relevant for Miranda purposes, nor is the subjective view of the person being questioned.362 The only refinement to this one-size-fits-all reasonable person test is consideration of age if the detainee is a juvenile.363

An ordinary traffic stop does not to amount to Miranda “custody.”364 Nor do all interrogations of prison inmates about previous outside conduct, even if the inmate is isolated from the general prison population for questioning.365 This view on prison interrogations evidences the Court’s continuing movement toward individualized analyses of Miranda issues based on particular circumstances and away from the more categorical decisions announced soon after Miranda. Still, some of the early decisions may retain vitality. One example is the 1969 decision in Orozco v. Texas, which held that questioning a person upon his arrest in his home is custodial.366 On the other hand, the fact that a suspect may be present in a police station does not necessarily mean, in the absence of further restrictions, that questioning is custodial,367 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial.368 Also, if a person has been subjected to Miranda custody, that custody ends when he is free to resume his normal life activities after questioning.369 Nevertheless, a break in custody may not end all Miranda implications for subsequent custodial interrogations.370

Second, Miranda warnings must precede custodial interrogation. It is not necessary under Miranda that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis.371 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being transported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon’s hiding place.

Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said: “We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.”372 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible.373

A later divided Court applied Innis in Arizona v. Mauro374 to hold that a suspect who had requested an attorney was not “interrogated” by bringing instead the suspect’s wife, who also was a suspect, to speak with him in police presence. The majority emphasized that the suspect’s wife had asked to speak with her husband, the meeting was therefore not a police-initiated ruse designed to elicit a response from the suspect, and in any event the meeting could not be characterized as an attempt by the police to use the coercive nature of confinement to extract a confession that would not be given in an unrestricted environment. The dissent argued that the police had exploited the wife’s request to talk with her husband in a custodial setting to create a situation the police knew, or should reasonably have known, was reasonable likely to result in an incriminatory statement.

In Estelle v. Smith,375 the Court held that a court-ordered jailhouse interview by a psychiatrist seeking to determine the defendant’s competency to stand trial constituted “interrogation” with respect to testimony on issues guilt and punishment; the psychiatrist’s conclusions about the defendant’s dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Miranda warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was “immaterial,” the Court concluded, since the psychiatrist’s testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution.376 Other instances of questioning in less formal contexts in which the issues of custody and interrogation intertwine, e. g., in on-the-street encounters, await explication by the Court.

Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attorney.377 The Court recognized that “other fully effective means” could be devised to convey the right to remain silent,378 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner.379 Nevertheless, it is not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used “fully conveyed” to a defendant his rights.380

Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Further, if the suspect indicates he wishes the assistance of counsel during interrogation, questioning must cease until he has counsel.381

That said, the Court has issued a distinct line of cases on the right to counsel that has created practically a per se rule barring the police from continuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. In Edwards v. Arizona,382 initial questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”383 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested.384 It also applies to interrogation by officers of a different law enforcement authority.385

On the other hand, the Edwards rule requiring that a lawyer be provided to a suspect who had requested one in an earlier interrogation does not apply once there has been a meaningful break in custody. The Court in Maryland v. Shatzer386 characterized the Edwards rule as a judicially prescribed precaution against using the coercive pressure of prolonged custody to badger a suspect who has previously requested counsel into talking without one. However, after a suspect has been released to resume his normal routine for a sufficient period to dissipate the coercive effects of custody, a period set at 14 days by the Shatzer Court, the rationale for solicitous treatment ceases. If the suspect is thereafter put into custody again, the options for questioning no longer are limited to suspect-initiated talks or providing counsel, but rather the police may issue new Miranda warnings and proceed accordingly.387 Moreover, the Edwards rule has not been explicitly extended to other aspects of the Miranda warnings.388

Fifth, 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.389 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.”390 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.’”391 Under this line of cases, a waiver need not always be express, nor does Miranda impose a formalistic waiver procedure.392

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.393 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.394 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.395

Sixth, 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 guilt396 or for determining the sentence, at least in bifurcated trials in capital cases.397 On the other hand, the “fruits” of such an unwarned confession or admission may be used in some circumstances if the statement was voluntary.398

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.399 Thus, in Harris v. New York,400 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,401 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.402

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,403 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,404 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.”405 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.406 “[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.”407

286 3 J. Wigmore, A Treatise On The Anglo-American System Of Evidence § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 954–59 (1966).

287 Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision.

288 Pierce v. United States, 160 U.S. 335 (1896); Sparf and Hansen v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility.

289 Bram v. United States, 168 U.S. 532, 542 (1897).

290 Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession.

291 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States, 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963).

292 Powers v. United States, 223 U.S. 303 (1912).

293 United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953).

294 Miranda v. Arizona, 384 U.S. 436 (1966). According to Wigmore, “there never was any historical connection . . . between the constitutional [self-incrimination] clause and the [common law] confession-doctrine,” 3 J. Wigmore, A Treatise On The Anglo-American System Of Evidence § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at § 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately—the bar against self-incrimination deriving primarily from notions of liberty and fairness, proscriptions against involuntary confessions deriving primarily from notions of reliability—they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off-shoot of the privilege against self-incrimination. See L. Levy, Origins Of The Fifth Amendment: The Right Against Self-Incrimination 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court).

295 318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943).

296 In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty-hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944).

297 McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts.

298 Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961) (Justice Frankfurter announcing judgment of the Court).

299 Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail.

300 McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 354 U.S. 449, 452–53 (1957).

301 The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c).

302 556 U.S. ___, No. 07–10441 (2009).

303 556 U.S. ___, No. 07–10441, slip op. at 18.

304 Brown v. Mississippi, 297 U.S. 278 (1936). “[T]he question of the right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” Id. at 285, 286.

305 Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court).

306 367 U.S. at 602.

307 “The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.” 367 U.S. at 603. See Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 973–82 (1966).

308 Brown v. Mississippi, 297 U.S. 278 (1936).

309 309 U.S. 227 (1940).

310 322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts protested that “interrogation per se is not, while violence per se is, an outlaw.” A confession made after interrogation was not truly “voluntary” because all questioning is “inherently coercive,” because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and self-control and not look alone to the length or intensity of the interrogation. They accused the majority of “read[ing] an indiscriminating hostility to mere interrogation into the Constitution” and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions.

311 316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941).

312 Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

313 Lisenba v. California, 314 U.S. 219 (1941).

314 Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. 338 U.S. at 57.

315 346 U.S. 156 (1953).

316 346 U.S. at 185.

317 373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family).

318 373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968).

319 Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls. But a suspect’s mental state alone—even insanity—is insufficient to establish involuntariness absent some coercive police activity. Colorado v. Connelly, 479 U.S. 157 (1986).

320 E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of “truth serum” to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects).

321 E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356 U.S. 390 (1958).

322 Wong Sun v. United States, 371 U.S. 471 (1963).

323 Fahy v. Connecticut, 375 U.S. 85 (1963).

324 United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S. 596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S. 346 (1968).

325 384 U.S. 436 (1966).

326 Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940).

327 Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 (1896).

328 3 J. Wigmore, A Treatise On The Anglo-American System Of Evidence § 882, at 246 (3d ed. 1940).

329 314 U.S. 219, 236 (1941).

330 Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process-fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated.

331 365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that “the conceptions underlying the rule excluding coerced confessions and the privilege again self-incrimination have become, to some extent, assimilated.”

332 Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963).

333 378 U.S. 1 (1964).

334 297 U.S. 278 (1936).

335 314 U.S. 219 (1941).

336 Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was “post facto reasoning at best,” Justice Harlan contended that the “majority is simply wrong” in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897), is discussed under “Confessions: Police Interrogation, Due Process, and Self-Incrimination,” supra.

337 378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495.

338 Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of “Custodial Interrogation” under Sixth Amendment, infra.

339 Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing assertions of the suspect’s “absolute right to remain silent” in the context of police warnings prior to interrogation).

340 384 U.S. 436, 444–45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to be applied retroactively. In cases where trials commenced after the decisions were announced, the due process “totality of circumstances” test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 (1966).

341 384 U.S. at 444–445.

342 Justices Clark, Harlan, Stewart, and White dissented, finding no historical support for the application of the clause to police interrogation and rejecting the policy considerations for the extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 499, 504, 526 (1966). Justice White argued that while the Court’s decision was not compelled or even strongly suggested by the Fifth Amendment, its history, and the judicial precedents, this did not preclude the Court from making new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a view of interrogation as inherently coercive and because the decision did not adequately protect society’s interest in detecting and punishing criminal behavior. Id. at 531–45.

343 384 U.S. at 457. For the continuing recognition of the difference between the traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978). The acknowledgment that the decision considerably expanded upon previous doctrine, even if the assimilation of self-incrimination values by the confession-exclusion rule be considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement officers had relied justifiably upon prior cases, “now no longer binding,” which treated the failure to warn a suspect of his rights or the failure to grant access to counsel as one of the factors to be considered. Johnson v. New Jersey, 384 U.S. 719, 731 (1966).

344 See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burger concurring) (“The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date.”)

345 Pub. L. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No. 1097, 90th Cong., 2d Sess. 37–53 (1968). An effort to enact a companion measure applicable to the state courts was defeated.

346 New York v. Quarles, 467 U.S. 549, 653 (1984).

347 Michigan v. Tucker, 417 U.S. 433, 444 (1974).

348 530 U.S. 428 (2000).

349 530 U.S. at 438.

350 530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441–42).

351 530 U.S. at 444 (Justices Scalia and Thomas dissenting).

352 564 U.S. ___, No. 09–11121, slip op. (2011) (Jusitces Alito, Scalia, Thomas and Chief Justice Roberts, dissenting).

353 See, e.g., Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 8, 12–13 (2010).

354 530 U.S. at 443.

355 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a distinction between a constitutional violation and a violation of “the prophylactic rules developed to protect that right.” The actual holding in Tucker, however, had turned on the fact that the interrogation had preceded the Miranda decision and that warnings—albeit not full Miranda warnings—had been given.

356 428 U.S. 465 (1976).

357 507 U.S. 680 (1993). Even though a state prisoner’s Miranda claim may be considered in federal habeas review, the scope of federal habeas review is narrow. Under the Antiterrorism and Effective Death Penalty Act of 1996 (Aedpa), a state court judgment may be set aside on habeas review only if the judgment is found to be contrary to, or an unreasonable application of, clearly established Supreme Court precedent. By contrast, a federal court reviewing a state court judgment on direct review considers federal legal questions de novo and can overturn a state court holding based on its own independent assessment of federal legal issues. This difference in scope of review can be critical. Compare Yarborough v. Alvarado, 541 U.S. 652 (2004) (habeas petition denied because state court’s refusal to take a juvenile’s age into account in applying Miranda was not an unreasonable application of clearly established Supreme Court precedent), with J.D.B. v. North Carolina, 564 U.S. ___, No. 09–11121, slip op. (2011) (on the Court’s de novo review of the age issue, state court’s refusal to take a juvenile’s age into account in applying Miranda held to be in error, and case remanded).

358 367 U.S. 643 (1961).

359 507 U.S. at 686–93.

360 507 U.S. at 693.

361 Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added).

362 Stansbury v. California, 511 U.S. 318 (1994).

363 J.D.B. v. North Carolina, 564 U.S. ___, No. 09–11121, slip op. (2011) (case remanded to evaluate whether a 13-year-old student questioned by a uniformed police officer and school administrators on school grounds was in custody).

364 Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of motorist stopped for traffic violation not custodial interrogation until “freedom of action is curtailed to a ‘degree associated with formal arrest’”). Thus, “custody” for self-incrimination purposes under the Fifth Amendment does not necessarily cover all detentions that are “seizures” under the Fourth Amendment. Id.

365 Howes v. Fields, 565 U.S. ___, No. 10–680, slip op. (2012) (taking a prisoner incarcerated for disorderly conduct aside for questioning about an unrelated child molestation incident held, 6–3, not to constitute custodial interrogation under the totality of the circumstances in the case), distinguishing Mathis v. United States, 391 U.S. 1 (1968) (questioning state prisoner about unrelated federal tax violation held to be custodial interrogation). While the Howes Court split 6–3 on whether a custodial interrogation had taken place for Fifth Amendment purposes, the case was before it on habeas review, which requires that a clearly established Supreme Court precedent mandates a contrary result. All the Howes Justices agreed that Mathis had not, for purposes of habeas review of a state case, “clearly established” that all private questioning of an inmate about previous, outside conduct was “custodial” per se. Rather, Howes explained that a broader assessment of all relevant factors in each case was necessary to establish coercive pressure amounting to “custody.” Cf. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op. (2010) (extended release of interrogated inmate back into the general prison population broke “custody” for purposes of later questioning); see also Illinois v. Perkins, 496 U.S. 292 (1990) (inmate’s conversation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is conversing with a government agent).

366 394 U.S. 324 (1969) (police entered suspect’s bedroom at 4 a.m., told him he was under arrest, and questioned him; four of the eight Justices who took part in the case, including three dissenters, voiced concern about this “broadening” of Miranda beyond the police station).

367 Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he was allowed to leave at end of interview, even though he was named by victim as culprit, questioning took place behind closed doors, and he was falsely informed his fingerprints had been found at scene of crime); Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013) (plurality opinion) (voluntarily accompanying police to station for questioning). Cf. Stansbury v. California, 511 U.S. 318 (1994). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is not custodial situation); Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court determination that teenager brought to police station by his parents was not “in custody” was not “unreasonable” for purposes of federal habeas review under the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (Aedpa)).

368 Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents’ interview with taxpayer in private residence was not a custodial interrogation, although inquiry had “focused” on him).

369 This holds even in the case of convict who is released after interrogation back into the general population. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op. (2010).

370 Edwards v. Arizona, 451 U.S. 477 (1981).

371 446 U.S. 291 (1980). A remarkably similar factual situation was presented in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel purposes. The Innis Court indicated that the definitions are not the same for each Amendment. 446 U.S. at 300 n.4.

372 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980).

373 446 U.S. at 302–04. Justices Marshall, Brennan, and Stevens dissented, id. at 305, 307. See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes Miranda inapplicable to jail cell conversation between suspect and police undercover agent).

374 481 U.S. 520 (1987).

375 451 U.S. 454 (1981).

376 451 U.S. at 467.

377 Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73.

378 384 U.S. at 444.

379 384 U.S. at 469.

380 California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether the warnings “reasonably conveyed” a suspect’s rights, the Court adding that reviewing courts “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be appointed “if and when you go to court”). Even where warnings were not the “clearest possible formulation of Miranda’s right-to-counsel advisement,” the Court found them acceptable as “sufficiently comprehensive and comprehensible when given a commonsense reading.” Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 12 (2010) (emphasis in original) (upholding warning of a right to talk to a lawyer before answering any questions, coupled with advice that the right could be invoked at any time during police questioning, as adequate to inform a suspect of his right to have a lawyer present during questioning).

381 Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). While a request for a lawyer is a per se invocation of Fifth Amendment rights, a request for another advisor, such as a probation officer or family member, may be taken into account in determining whether a suspect has evidenced an intent to claim his right to remain silent. Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who requested to see his probation officer, rather than counsel, found under the totality-of-the-circumstances to have not invoked a right to remain silent).

382 451 U.S. 477 (1981).

383 451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court interpreted Edwards to bar interrogation without counsel present of a suspect who had earlier consulted with an attorney on the accusation at issue. “[W]hen counsel is requested, interrogation must cease, and officials may not reinstate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. at 153. The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pending on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985).

384 Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991).

385 Minnick v. Mississippi, 498 U.S. 146 (1990).

386 559 U.S. ___, No. 08–680, slip op. (2010).

387 Id.

388 For a pre-Edwards case on the right to remain silent, see Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police “scrupulously honored” suspect’s request, admission valid).

389 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).

390 384 U.S. at 475.

391 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. ___, No. 10–1540, slip op. (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.

392 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.

393 560 U.S. ___, No. 08–1470, slip op. (2010).

394 560 U.S. ___, No. 08–1470, slip op. at 12–13 (2010).

395 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”).

396 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).

397 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.

398 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).

399 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.

400 401 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).

401 420 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).

402 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979).

403 467 U.S. 649 (1984).

404 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.

405 467 U.S. at 658–59.

406 Berkemer v. McCarty, 468 U.S. 420, 432 (1984).

407 468 U.S. at 434.

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