MIRANDA AND TESTIMONIAL EVIDENCE THE MIRANDA RULE The

MIRANDA AND TESTIMONIAL EVIDENCE

THE MIRANDA RULE The Miranda Rule places an important legal requirement on governmental officers to inform an arrestee or a suspect subjected to “custody like treatment” of certain Constitutional rights before questioning takes place. A peace officer must obtain a voluntary waiver of Miranda rights before statements obtained from a suspect can be admitted as evidence in court.

Parts: 1. Admonition of rights 2. Waiver • The admonition of rights consists of Constitutional provisions embodied within the 5 th Amendment Admonition consists of: 1. The right to not answer questions 2. Any responses to questions may be used in court 3. The right to any attorney before or during questioning 4. If indigent, counsel will be provided at public expense

Assertion of Rights: Once an arrestee indicates in any manner that he/she wishes to remain silent, or states he/she wants advice of counsel, all questioning must cease. No matter how many times an officer has read Miranda to a suspect, it is always a good idea to read the admonition or waiver directly form a pre-printed card.

WAIVER OF RIGHTS: A wavier of rights consists of asking the arrestee if he/she understands the admonition and then obtaining either an express waiver or an implied waiver of rights. ØExpress Waiver: given verbally or in writing ØImplied Waiver: affirmative gesture or body language it is always the prosecution’s burden to show a waiver of rights was given knowingly and voluntarily by a preponderance of evidence.

Knowingly means the suspect has the mental capacity and intelligence to understand the rights that he/she is waiving. The waiver or any subsequent questioning cannot be a product of force, threats, inducements, promises, trickery or submission to police authority. Even when there is no formal arrest or handcuffing, if restraint involves an atmosphere of custody, then the Miranda Rule applies. The fact that an officer is questioning a person because the officer believes he/she is a suspect in the crime is irrelevant to custody.

Interrogation commonly refers to direct police questioning in order to obtain an admission or a confession. Whenever in custody and desire to interrogate are both present, a Miranda Admonition and waiver is a legal requirement. The 6 th Amendment provides in part that “in all criminal proceedings the accused shall enjoy the right to have the assistance of counsel for his defense”. Even after the accused has counsel with regard to a particular charged offense, he or she may be questioned by police following Miranda Warnings with respect to any uncharged offense.

EXCEPTIONS TO RE-QUESTIONING: 1. Suspect voluntarily reinitiates questioning. 2. Re-questioning on a separate and unrelated offense. 3. Break in custody. Re-contact cannot be the product of police coercion, inducement, of trickery in violation of the 4 th amendment. At the time re-contact is made a renewed express Miranda waiver must be given.

ASSERTION OF RIGHTS: Under the Mosley Rule, if a suspect has asserted his/her right to remain silent on offense #1, police can still attempt to question on offense # 2. ØOffense #2 be a separate and unrelated offense. ØThe Mosley rule only applies with a silence assertion. If the suspect has asserted his/her right to counsel, the Edwards Rule considers this request to be a blanket assertion for all other offenses while the suspect remains in custody.

WHEN MIRANDA DOESN’T APPLY: 1. A detention is a temporary stop for investigation and questioning to determine a person’s involvement, if any, in criminal activity. Because a person is not under arrest during a detention, there is no custodial interrogation triggering a Miranda requirement. During a detention a person can self invoke his/her right to remain silent and not provide an explanation for one’s actions.

2. General on-scene investigation and questioning takes place whenever an officer is in a what happened or knock and talk mode. 3. Voluntary Interview is where a suspect consents to come down to the police station for investigative questioning about possible involvement in a crime. When a suspect is told that he / she is not under arrest; he/she is free to leave any time; and he / she is free not to answer any questions they have been given a Beheler Admonition.

If the suspect agrees to remain any questions answered are outside the Miranda Rule. 4. Telephone Interviews: It is permissable to question a suspect over the telephone because there is no custody over phone lines. An officer is permitted to record a telephone conversation without the suspect’s consent.

5. Exigency Exception: The exigency exception to Miranda arises under any of the four possible situtations: 1. Victim safety 2. Public safety 3. Officer safety 4. Suspect safety The rescue doctrine arises in kidnapping, child stealing, and hostage-taking situations where negotiations are taking place with a suspect to aid in rescuing the victim(s).

Once the victim is located, Miranda applies to any further questioning about criminal activity. With public safety exception there exists emergency circumstances creating danger to life, limb, or serious property damage which need to be solved. Solving an exigency takes precedence over a Miranda admonition, even in a custodial setting. 6. Booking Information: routine indentifying information in arrest report, booking sheet, or jail classification form is outside the scope of Miranda.

7. Volunteered Statements: If a suspect voluntarily provides incriminating information, an officer is not required to stop the individual and provide Miranda warnings. The Miranda rule only applies when a suspect is being subjected to custodial questioning by the officer. 8. Sting and Undercover Investigations: In covert sting and undercover investigations, there is no custodial interrogation prompting Miranda.

Private Persons: Private citizens are not subject to Miranda requirements unless that person is acting as a police agent. Private persons include: 9. Ø Ø Retail security personnel Private investigators School officials Victims of a crime 10. Probation Officers: Miranda doesn’t apply to the questioning by a probation officer who is checking up on courtimposed conditions of probation.

A probation officer must be concerned with overseeing probation conditions rather than acting as a “Stalking Horse” for gathering criminal investigation information for the police. If information concerning criminal activity comes into light during a probation interview, the probation officer can turn these statements over to the police. 11. Asset Forfeiture: The Miranda rule doesn’t apply to civil forfeitures wherein assets derived as a result of criminal profiteering are seized by the governmant.

MIRANDA AND MINORS: A minor has no constitutional right to have a parent or adult present during questioning. This wording does not need to be part of a Miranda admonition. Prosecution must show a minor knowingly waived his/her rights. Important factors: Ø Personal Characteristics of the Minor – intelligence, education, and ability to comprehend the meaning and impact of Miranda rights. Ø Totality of Circumstances Test – the events surrounding the waiver and interrogation, conduct and tactics by the police.

MIRANDA AND FRUITS OF THE POISONOUS TREE: A non-coercive violation of Miranda doesn’t trigger and Exclusionary rule remedy for evidence seizes as a result of a statement. Physical evidence coming from a Miranda violation is still admissible as long as the interrogation conducted by the officer doesn’t involve threats, inducements, or promises that violate the 14 th Amendment.

ATTENUATION: If a statement incident to a 4 th or 5 th Amendment violation is attenuated (a legal “cooling off” period involving time, location, and circumstances), another waiver and subsequent statement could still be admissible.

IMPEACHMENT: Statements taken in violation of the Miranda Rule may be used for the limited purposes of impeachment.