MIRANDA AND TESTIMONIAL EVIDENCE

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MIRANDA AND TESTIMONIAL EVIDENCE
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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.

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

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• 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.

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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.
• Express Waiver given verbally or in writing
• Implied Waiver affirmative gesture or body
  language
• it is always the prosecutions burden to show a
  waiver of rights was given knowingly and
  voluntarily by a preponderance of evidence.

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• 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.

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• 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 6th 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.

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Exceptions to Re-questioning

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

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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.
• Offense 2 be a separate and unrelated offense.
• The 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.

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When Miranda Doesnt Apply

• A detention is a temporary stop for investigation
  and questioning to determine a persons
  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 ones actions.

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• 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.

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• 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 suspects consent.

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• 5. Exigency Exception
• The exigency exception to Miranda arises under
  any of the four possible situtations
• Victim safety
• Public safety
• Officer safety
• 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).

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• 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.

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• 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.

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

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• 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 doesnt apply to civil
  forfeitures wherein assets derived as a result of
  criminal profiteering are seized by the
  governmant.

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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
• Personal Characteristics of the Minor
  intelligence, education, and ability to
  comprehend the meaning and impact of Miranda
  rights.
• Totality of Circumstances Test the events
  surrounding the waiver and interrogation,
  conduct and tactics by the police.

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Miranda and Fruits of the Poisonous Tree

• A non-coercive violation of Miranda doesnt
  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 doesnt involve threats,
  inducements, or promises that violate the 14th
  Amendment.

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Attenuation

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

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Impeachment

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