1) 'Miranda' warnings take their name from the case Miranda v. Arizona, a 1966 Supreme Court decision. Before Miranda was decided, it was the practice and custom of a great many, if not most, police agencies to give the subject of an interrogation a cautionary warning, e.g., it was standard FBI procedure almost from the outset. But the Miranda decision made these a requirement before any custodial interrogation and created a rebuttable presumption that any admission obtained without the giving of such a warning and a knowledgeable waiver would be involuntary and therefor inadmissible.
(2) The subject must be advised (1) that he has a right to remain silent, (2) that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.
(3) The warnings must be given at the start of 'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.
(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel.
Thus, invoking Miranda is not the same as 'lawyering up'.
(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.) Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just one more part of the system.
(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.
The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.
I'd still requite the warnings - it's a nice bright line to let the suspect know he's in deep trouble. But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give,
FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) fro requiring recording as a matter of law.1) 'Miranda' warnings take their name from the case Miranda v. Arizona, a 1966 Supreme Court decision. Before Miranda was decided, it was the practice and custom of a great many, if not most, police agencies to give the subject of an interrogation a cautionary warning, e.g., it was standard FBI procedure almost from the outset. But the Miranda decision made these a requirement before any custodial interrogation and created a rebuttable presumption that any admission obtained without the giving of such a warning and a knowledgeable waiver would be involuntary and therefor inadmissible.
(2) The subject must be advised (1) that he has a right to remain silent, (2) that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.
(3) The warnings must be given at the start of 'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.
(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel.
Thus, invoking Miranda is not the same as 'lawyering up'.
(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.) Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just one more part of the system.
(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.
The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.
I'd still require the warnings - it's a nice bright line to let the suspect know he's in deep trouble. But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give,
FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) from requiring recording as a matter of law.
(2) The subject must be advised (1) that he has a right to remain silent, (2) that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.
(3) The warnings must be given at the start of 'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.
(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel.
Thus, invoking Miranda is not the same as 'lawyering up'.
(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.) Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just one more part of the system.
(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.
The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.
I'd still requite the warnings - it's a nice bright line to let the suspect know he's in deep trouble. But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give,
FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) fro requiring recording as a matter of law.1) 'Miranda' warnings take their name from the case Miranda v. Arizona, a 1966 Supreme Court decision. Before Miranda was decided, it was the practice and custom of a great many, if not most, police agencies to give the subject of an interrogation a cautionary warning, e.g., it was standard FBI procedure almost from the outset. But the Miranda decision made these a requirement before any custodial interrogation and created a rebuttable presumption that any admission obtained without the giving of such a warning and a knowledgeable waiver would be involuntary and therefor inadmissible.
(2) The subject must be advised (1) that he has a right to remain silent, (2) that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.
(3) The warnings must be given at the start of 'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.
(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel.
Thus, invoking Miranda is not the same as 'lawyering up'.
(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.) Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just one more part of the system.
(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.
The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.
I'd still require the warnings - it's a nice bright line to let the suspect know he's in deep trouble. But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give,
FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) from requiring recording as a matter of law.
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