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A Guide for Those Who Can’t

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Despite the efforts of many of the best criminal defense lawyers, too many individuals suspected or accused of committing crimes feel compelled to talk to law enforcement under some evolutionary delusion they can help themselves.  It is human nature to try to either clear oneself or trick the inquisitor.  Law enforcement officers of all ranks and experience levels are taught that this psychological response to fear, self preservation and guilt, can most often be used to cause a suspect to give directly incriminating evidence or false statements that can later be used against a suspect.  To sum the sage advice of countless lawyers, we advise, again:  Do not talk to anyone from law enforcement, even if you have a great story or are completely innocent, if you believe you might be or could become a suspect.  Immediately assert your right to remain silent and request a lawyer.  Just politely say: “I wish to remain silent and I request a lawyer.”  Do this even if the investigator tries to guilt or trick you into speaking.  Do this “even if you have done nothing wrong and have nothing to hide.”  Just remain silent and clearly request a lawyer.  It is your Constitutional right but you must assert it.  Do so proudly.

The Fifth Amendment to the United States Constitution provides: no person “shall be compelled in any criminal case to be a witness against himself …”

In 1966, the U.S. Supreme Court in Miranda v. Arizona stated that police interrogations of persons in custody have the physical and psychological potential to be coercive. For this reason, the Court held there should be prophylactic measures in place to safeguard against coerced confessions. These measures include warnings to criminal suspects or accused persons that they have 1) the right to remain silent; 2) that any statement they give to law enforcement may be used against them at trial; 3) they have a right to have an attorney present during interrogation; and 4) if they cannot afford an attorney, one will be appointed to them by the courts.

The thrust of these measures (which, incidentally, are not actually constitutional rights) is to protect an accused person’s right to silence and ensure the continuous opportunity to exercise it.

Before the prosecution can introduce any statement made by either a criminal suspect or an accused person, it carries the burden of showing that the statement was obtained in compliance with Miranda.

Finally, and perhaps most importantly, Miranda is qualified only to statements obtained after a criminal suspect or accused person is “in custody.” Meaning, under arrest or otherwise deprived of his freedom of action in a significant way.  Pre-arrest statements are governed by whether they were voluntarily made. While you do not have to speak to the police or answer any of their questions, you can, and should, always assert your right to have an attorney present before you make any statements to the police. So, and again, remain silent and request a lawyer, even “if you have nothing to hide and done nothing wrong.”

Miranda has probably been subjected to more judicial scrutiny and revision than any other decision handed down by the Supreme Court. In fact, as of January 21, 2013, there had been nearly 62,000 Federal and state court decisions that mentioned Miranda in some manner, including 286 decisions by the Supreme Court itself. A summary of some of the more significant decisions by the Supreme Court are listed below:

• 1966 – Davis v. North Carolina: Miranda not retroactive.
• 1968 – Darwin v. Connecticut: Suspect charged with second degree in Connecticut. The admission of a confession and evidence of the suspect’s partial re-enactment of the crime at the request of police was improper because during 30 of the 48 hours of police interrogation the suspect’s attorney had made many unsuccessful attempts to communicate with the suspect.
• 1974 – Michigan v. Tucker: Miranda warnings are “not themselves rights protected by the Constitution but [are] instead [prophylactic] measures to insure that the right against compulsory self-incrimination [is] protected; thus, statements obtained in violation of Miranda are not necessarily fruit from a poisonous tree.
• 1975 – Oregon v. Hass: “Testimonial evidence” obtained in violation of Miranda admissible to impeach defendant’s contradictory trial testimony.
• 1977 – Brewer v. Williams: Under Fifth Amendment, right to counsel attaches only when a suspect requests counsel in a clear and unequivocal manner.
• 1979 – North Carolina v. Butler: Volunteered statement not subject to “explicit waiver” showing of Miranda right to silence.
• 1980 – Rhode Island v. Innis:  “Interrogation” is defined as “express questioning or its functional equivalent” consisting of “words or actions on the part of the police … [which] the police should know are reasonably likely to elicit an incriminating response from the suspect.”
• 1981 – Estelle v. Smith: Miranda warnings required before a court-ordered psychiatric evaluation because it constitutes an “interrogation.”
• 1981 – Michigan v. Summers: Restraint on freedom “substantially less intrusive” during detention brought about by the execution of a formal arrest.
• 1981 – California v. Prysock: No “talismanic incantation” or rigid formal version of Miranda warnings required.
• 1983 – California v. Beheler: “Formal arrest or restraint on freedom of movement” defines custody.
• 1983 – Oregon v. Bradshaw: Defendant opens the door to further questioning after invoking Miranda rights but later “initiates further communication, exchanges, or conversations with the police” such as “well, what is going to happen to me now?” A court’s plurality stressed a defendant-initiated conversation after Miranda warnings and a waiver of those warnings are “separate inquiries.”
• 1984 – Berkemer v. McCarty: Statements made during traffic stop and ensuing sobriety test are admissible while statements made after formal arrest are not.
• 1984 –New York v. Quarles: Miranda not violated when police are faced with a “public safety” crisis demanding immediate interrogation.
• 1985 – Oregon v. Elstad: Second warned confession not tainted by first unwarned confession.
• 1986 – Moran v. Burbane: A voluntary and intelligent waiver of Miranda rights not undermined because police did not inform suspect that attorney was trying to contact suspect during questioning.
• 1986 – Colorado v. Connelly: A defendant’s mental psychosis, which interferes with his “free will,” does not render confession involuntary if the confession is not the product of police coercion.
• 1987 – Connecticut v. Barrett: Suspect may waive some of the Miranda rights while retaining others, such refusing to make oral confession without attorney present.
• 1987 – Arizona v. Mauro: “Psychological ploys” utilized by police to elicit an incriminating response from suspect may constitute “interrogation.”
• 1988 – Pennsylvania v. Bruder: “Custody” not triggered during a routine traffic stop in which sobriety tests are conducted and questions asked about visible alcohol in vehicle.
• 1988 – Arizona v. Roberson: Rule against further questioning after invocation of Miranda rights includes unrelated crimes for which defendant has been charged.
• 1989 – Duckworth v. Eagan: Waiver form advising an attorney would be appointed “if and when you go to court” satisfies Miranda warnings.
• 1990 – Pennsylvania v. Muniz: Questions asked during “booking” process do not trigger Miranda warnings because they concern matters of “police recordkeeping.”
• 1990 – Illinois v. Perkins: Custody and interrogation “may create mutually reinforcing pressures” with potential to overcome a suspect’s will.
• 1991 – McNeil v. Wisconsin: Court pointed out that it had “never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” (For example, pre-arrest questioning).
• 1994 – Davis v. United States: A defendant who asserts his right to silence in an “ambiguous or equivocal” manner may be subject to further questioning.
• 1994 – Stansbury v. California: Custody test is “whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.”
• 2000 – Dickerson v. United States: “Miranda announced a constitutional rule” that cannot be overruled by Congress.
• 2004 – Yarborough v. Alvarado:  Restraint on freedom of movement occurs when suspect does not feel free to end encounter with police and leave.
• 2004 – United States v. Patane: A three-Justice plurality held that “[t]he Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failure to warn,” allowing evidence obtained from an otherwise voluntary statement.
• 2009 – Montejo v. Louisiana: Defendant, who was charged with first degree murder, was appointed counsel at preliminary hearing. Later in day he was read his Miranda rights and agreed to accompany police to location of murder weapon. During this excursion, he wrote inculpatory letter to the victim’s widow. He met with appointed attorney upon returning to jail. Letter introduced at trial. Supreme Court had long held that Miranda’s prophylactic protections are triggered only when a defendant has requested a lawyer or otherwise asserted his right to counsel. At his preliminary hearing, Montejo’s stood mute and did not make a specific request for counsel. The Court declined to expand its longstanding rule that the right to counsel is triggered only by a clear and unambiguous request. The Montejo ruling changed the legal landscape because it reduced the level of protections implied by Miranda.
• 2011 – Bobby v. Dixon: Suspect and an accomplice murdered a victim in order to steal his car. The Sixth Circuit ruled that Miranda “clearly established” that police could not speak to the suspect on November 9 because he had refused on November 4 to speak to the police without his lawyer. Supreme Court said that was “plainly wrong.” That the suspect was not in custody on November 4 when he had a “chance encounter” with the police; therefore, Miranda did not apply. Secondly, the Sixth Circuit’s ruling that the police violated the Fifth Amendment by urging the suspect to “cut a deal” before his accomplice was also error because the Supreme Court has never held that the police cannot urge one suspect to confess before another does.
• 2012 – Maryland v. Shatzer: Break from initial coercive police interrogation atmosphere and return to normal life before later attempted interrogation sufficient to find that subsequent confession was result of “change of heart” and not coercion.

Because Miranda did not create a constitutional “right” but rather a constitutional rule of prophylactic measures designed to prevent coerced statements, decisions from the lower federal courts (as well as state courts) are often all over the legal map because these courts are guided by conflicting decisions from the U.S. Supreme Court dealing with the Fifth Amendment “right to silence.”  The most significant issue underlying these decisions concern “custody:” whether or not a “criminal suspect” is “in custody” because while a criminal suspect enjoys the protections of the Fifth Amendment (right to silence and attorney) at all times, he/she does not come under the umbrella of the Miranda protections until they are detained in custody by the police investigating a crime. An “accused person,” of course, is “in custody” because they have been formally arrested for a crime.

In an effort to avoid going from a suspect to an accused, people encountering the police investigating a crime will often speak to or converse with the police trying to “explain” away suspicion directed their way about the crime. That is a big mistake. The police are not friends of a criminal suspect. A suspect is different from a witness who has either seen or has specific information about a crime. A witness has a civic responsibility—and sometimes a legal duty—to report criminal activity to the police. A witness should talk to the police while a suspect should remain silent and immediately request an opportunity to confer with an attorney.  If the suspect is placed in any form of custody (handcuffed or formally arrested), he/she should exercise each and every constitutional protection guaranteed by Miranda.

Custody exists when the police deprive a person of the “freedom of action in any significant way.” The following are examples of custody:

• Police take a person from their home, escort them to the police station where they are held for an extended period, and questioned in a closed room.
• Police handcuff a person notwithstanding assurances that the person is not under arrest.
• Police do not inform a person he is under arrest but the person does not feel free to leave because he is subjected to confrontational and intimidating questioning by the police who say they believe the person committed the crime they are investigating.
• Police point a weapon at a person, order him to drop to the ground, and remove items from the person’s home.
• Police surround a person in his home, lock the doors, and refuse to let him speak to family members.

Examples of non-custody are:

• Police question a person over the telephone.
• Police inform a person of his freedom to leave and take no intimidating actions against him.
• Police question a person hospitalized for a gunshot wound, tell him he can stop interview at any time and ask the police to leave the room at any time.
• Police question a person in a cordial and non-intimidating manner about possible weapons in the house while serving a protective order.
• A person voluntarily accompanies police to the station, or meets them there voluntarily, is never told he cannot leave, and questioned for 30 minutes.

For whatever reason, when a person comes under suspicion for being involved in any criminal activity, he/she should remain silent at all times and refuse to answer any questions until they confer with an attorney. Never, ever, take the police bait “we’re just trying to clear this up.” The police have one objective: make the case. They are not really concerned about either guilt/innocence or degrees of involvement. All they want is “probable cause” to arrest. The rest is up to the prosecution and the courts to determine a person’s level of involvement in a crime. The fastest way to go from suspicion to arrest is to cooperate with the police. Cooperation, if any, should be handled by the defense attorney, and the level of cooperation will be determined by the level of the prosecution’s evidence.

The best, and most important, advice from an attorney: remain silent and request a lawyer.  Invoke these rights early and do it often…

SOURCE: Some of the case authorities used in this article were derived from the Georgetown Law Journal, The Annual Review of Criminal Procedure, (2009).