Before questioning an arrestee, the police must administer the Miranda warnings. They are:

• The arrestee has a right to remain silent.
• Any statement the arrestee makes can and will be used in court as evidence against him.
• The arrestee has a right to consult with a lawyer and to have the lawyer with him during interrogation.
• If the arrestee cannot afford a lawyer, he has a right to have a lawyer appointed without cost to represent him or her prior to any interrogation.

Failure to give any of these warnings renders a subsequent statement inadmissible. Miranda applies to “custodial interrogation.” The defense has the burden of proving that there was custodial interrogation so as to trigger the need for Miranda warnings. “Interrogation” encompasses any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Some courts employ a standard that emphasizes the suspect’s reasonable perceptions.

Custody for purposes of Miranda

To determine whether a person is in custody under Miranda, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The test for custody is an objective one, both from the officer’s and the arrestee’s perspective. The officer’s subjective intent to detain a person is not determinative. No single factor is dispositive. The following factors are among those likely to be relevant to deciding that question: (1) the language used to summon the individual; (2) the extent to which the individual is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual. Handcuffing generally constitutes the sort of custody that requires Miranda warnings before interrogation.

Miranda waivers

The prosecution has the burden of proving by a preponderance of the evidence that an individual voluntarily waived Miranda rights. The police cannot evade Miranda’s requirements by deliberately eliciting an unwarned confession first, then administering the warnings and having the accused repeat the confession in the same interrogation session. However, an inadvertent failure to administer the warnings does not prevent the police from later warning the accused and obtaining a waiver and confession.

Miranda exceptions: booking and pedigree questions

Routine booking and border inspection questions generally do not require Miranda warnings. Miranda warnings are necessary, however, when the question is designed to elicit or is such that the officer should have known it would elicit incriminating information. Miranda warnings may be required during booking in certain circumstances. During booking, the police will question the arrestee from a form consisting of standard questions restricted to biographical information. If instead, the questioning is a protracted interrogation veering from biographical information to the offense, it will not pass muster as routine booking questions. Miranda warnings are required when the biographical questions appear to be aimed at obtaining missing information about the crime. For example, in one case the police had a description of a shooter that matched the arrestee, and a dying declaration that “Tony” shot the decedent. What the police lacked was confirmation that the suspect’s first name was Tony. If it turned out that the name of the man who called himself “David” was really Tony then this would provide a link in the chain of evidence against the suspect. Under these circumstances, the court held that the lengthy questioning of the arrestee about his name constituted custodial interrogation within Miranda.

Miranda exceptions: public safety

The police may dispense with Miranda warnings where, under the circumstances confronting the officers, there is an objectively reasonable need to protect the police or the public from any immediate danger associated with a weapon. For example, the police had been told a suspect was armed, they saw him discard something in a grocery store, and upon arresting him, they saw that his shoulder holster was empty. The police were entitled to ask him where he had discarded gun. However, the public safety exception does not apply when there are no specific and articulable facts raising a danger to the police or public or the danger has dissipated with the arrest and handcuffing of the defendant. For example, the public safety exception did not apply when the suspect was arrested naked, handcuffed and removed from his house before the police asked him if there was a gun in the house.

Miranda violations

A Miranda violation has limited effect:

• The prosecution can use the defendant’s statements made without the warnings to cross-examine the defendant or in rebuttal of the defendant’s testimony.
• Physical evidence to which the statements lead is admissible.