The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect's Fifth Amendment right to avoid coercive self-incrimination (see right to silence).
In 1963, Ernesto Miranda was arrested for kidnapping and rape of a Jane Doe at a bus stop. He made a confession without having been told of his constitutional right to remain silent, and his right to have an attorney present during police questioning. At trial, prosecutors offered only his confession as evidence and he was convicted. The Supreme Court ruled (Miranda v. Arizona, ) that Miranda was intimidated by the interrogation and that he did not understand his right not to incriminate himself or his right to counsel. On this basis, they overturned his conviction. Miranda was later convicted in a new trial, with witnesses testifying against him and other evidence presented. He was then sentenced to eleven years. He served one-third of his sentence and was turned down for parole four times before being paroled in December 1972.
Ironically, Ernesto Miranda was later affected by the Miranda warning ruling. Miranda, whose conviction was initially overturned was stabbed to death in 1976 in a Phoenix Bar. His suspected killer was read the Miranda warning and declined to give a statement. He was released and promptly fled to Mexico. At the time of his death, Miranda had several business-card sized copies of the Miranda statement in his pocket.
In 2000, the Supreme Court confronted the issue of whether Miranda had been superseded by the enactment of the Crime Control and Safe Streets Act of 1968. A 7-2 majority ruled that the answer was no, because Miranda had articulated a constitutional rule which only the Court itself (or a constitutional amendment) could reverse. Dickerson v. United States, .
The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, the Court did create a set of guidelines which must be followed. The ruling states:
...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.
Notably, the Miranda rights do not have to be read in any particular order, and they do not have to precisely match the language of the Miranda decision, as long as they are adequately and fully conveyed. California v. Prysock, .
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?
The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver. Evidence has been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.
Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.
The right of a juvenile to remain silent without his or her parent or guardian present is provided in some jurisdictions.
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
Even though this sentence may be somewhat ambiguous to some laypersons, the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, (upholding use of sentence by Hammond, Indiana police).
If you are not a United States citizen, you may contact your country's consulate prior to any questioning.
Some states including Virginia require the following sentence, ensuring that the suspect knows that waiving Miranda rights is not a one-time absolute occurrence:
You can decide at any time from this moment on to terminate the interview and exercise these rights.
Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?
An affirmative answer to both of the above questions waives the rights. If the suspect responds "no" to the first question, the officer is required to re-read the Miranda warning, while saying "no" to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived.
Generally, when defendants invoke their Fifth Amendment right against self-incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot punish them by commenting on their silence and insinuating that it is an implicit admission of guilt. Griffin v. California, . Since Miranda rights are simply an extension of the Fifth Amendment which protects against coercive interrogations, the same rule also prevents prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda rights immediately after arrest. Wainwright v. Greenfield, . However, neither the Fifth Amendment nor Miranda extend to prearrest silence, so if a defendant takes the stand at trial (thereby waiving his Fifth Amendment rights), the prosecutor can attack his credibility with his prearrest silence (where he failed to turn himself in and confess immediately). Jenkins v. Anderson, .
Under the Uniform Code of Military Justice, Article 31 provides for the right against self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it. The United States Navy and United States Marine Corps require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire, a verbal waiver is not sufficient.
It has been discussed if a Miranda warning — if spoken or in writing — could be appropriately given to disabled persons. For example, "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education. The content of a Miranda warning can be understood by a 6th- to 8th-grade pupil while only 10 to 15 percent of prelingually deaf people have been found to be that competent, due to the linguistic and cultural differences between the Deaf and Hearing communities. In one case, a deaf murderer was kept at a therapy station until he was able to understand the meaning of the Miranda warning and other judicial proceedings.
Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure. In the 2000 Dickerson decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States . However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station, in a police vehicle, or when detained. Arrests can occur without questioning and without the Miranda warning—although if the police do change their mind and decide to interrogate the suspect, the warning must then be given.
In some jurisdictions, a detention differs at law from an arrest, and police are not required to give the Miranda warning until the person is arrested for a crime. In those situations, a person's statements made to police are generally admissible even though the person was not advised of his rights. Similarly, statements made while an arrest is in progress before the Miranda warning was given or completed are also generally admissible.
Because Miranda applies only to custodial interrogations, it does not protect detainees from standard booking questions: name, date of birth, address, and the like. Because it is a prophylactic measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood without a warrant from persons suspected of driving under the influence of alcohol. (Such inspections may be incriminatory but not self-incriminatory for a suspect).
If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that he or she may be charged with while in custody.
Many police departments give special training to interrogators with regard to the Miranda warning; specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer is allowed, before asking the suspect a question, to speak at length about evidence collected, witness statements, etc. The officer will THEN ask if the suspect wishes to talk, and the suspect is then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly taught is never to ask a question; the officer may simply sit the suspect down in an interrogation room, sit across from him and do paperwork, and wait for the suspect to begin talking. These tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are condemned by legal rights groups as deceptive.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Therefore, for Miranda to apply six factors must be present: (1) evidence must have been gathered (2) the evidence must be testimonial (3) the evidence must have been obtained while the suspect was in custody (4) the evidence must have been the product of interrogation (5) the interrogation must have been conducted by state-agents and (6) the evidence must be offered by the state during a criminal prosecution.
The first requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no import. Second, Miranda applies only to “testimonial” evidence as that term is defined under the Fifth Amendment. For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information. The Miranda rule does not prohibit compelling a person to engage in conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in indentification procedures such as give handwriting or voice exemplars, fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause. On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question "did you kill the victim" the conduct is testimonial, it is the same as saying "yes I did" and Miranda would apply.
Third, the evidence must have been obtained while the suspect was in custody. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent “associated with a formal arrest.” A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. In the absence of a formal arrest, the issue is whether a reasonable person in the suspect’s position would have believed that he was under arrest. Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street. Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered custody for purposes of the Fifth Amendment. . The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave. Generally, incarceration or imprisonment constitutes custody. However, Miranda is not offense-specific. Therefore, a person who is incarcerated could not be interrogated about any offense regardless of whether the questioning related to the offense for which she is incarcerated or any other offense absent a valid Miranda waiver.
Fourth, the evidence must have been the product of interrogation. A volunteered statement by a person in custody does not implicate Miranda.In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Thus, a practice that the police “should know is reasonably likely to evoke an incriminating response from a suspect … amounts to interrogation.” For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are essentially “saying” “how do you explain this?” On the other hand, “unforeseeable results of [police] words or actions” do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, “I couldn’t do that even if I was sober”, would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.
Fifth, the interrogation must have been conducted by state-agents. In order to establish a violation of the defendant’s Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent. If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that she is being questioned by the police. Private security guards and “private” police present special problems. They are generally not regarded as state-agents. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda’s safeguards since an officer is considered to be “on duty” at all times.
Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.
If all six factors are present, then Miranda applies and any testimonial evidence that was the product of custodial interrogation is subject to suppression under the Fifth Amendment exclusionary rule unless the interrogation was preceded by a valid Miranda waiver or an exception to the Miranda rule of exclusionary rules applies.
A valid Miranda waiver consists of properly advising the suspect of her Miranda rights and obtaining a waiver of those rights.
The basic rights are: 1. You have the right to remain silent. 2. Anything you say can and will be used against you in a court of law. 3. You have the right to speak to an attorney and to have an attorney present during any questioning. 4. If you cannot afford an attorney, one will be provided for you free of charge.
Typical waiver questions are: 1. Do you understand these rights? 2. Do you wish to give up these rights and speak to the police at this time without a lawyer being present.
The Fifth Amendment right to counsel which is a component of the Miranda Rule is to be distinguished from the Sixth Amendment right to counsel. In the context of the law of confessions the Sixth Amendment right to counsel is defined by the Massiah Doctrine.
It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)
The current caution used in New South Wales is:
You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?
Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, that evidence is likely to be excluded so as to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police and who is fitted with a listening device, that evidence would be admitted.
Australian research indicates that very few suspects actually refuse to speak. Stevenson's research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the District Court of New South Wales in Sydney remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.
A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994. See here, here or here All states have rejected such change. As the NSW Report said:
It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption.
It is also important to note that anything said to an Australian police member should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and where the circumstances, on the balance of probabilities, justify the reception of the evidence, S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not invent a false, verbal confession, never made by an accused (a practice called "verballing" an accused).
- to be informed promptly of the reasons therefor; - to retain and instruct counsel without delay and be informed of that right; - to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
The Canadian Charter warning reads (varies by police service): "You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?"
(See: R. v. Hebert  2 S.C.R. 15)
Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - Protection against Self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.
While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have counsel present during the course of an interrogation. Once a suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have counsel present during the questioning.
In R v Leckey (1943) CAR 128 the Court of Criminal Appeal said:
... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril.
Therefore a caution of the form
was used. The Criminal Justice and Public Order Act 1994 amended the right to silence by allowing adverse inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (see right to silence in England and Wales). In other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:
You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.
You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.
or even (in circumstances where no adverse inference can be drawn from silence)
'You do not have to say anything, but anything you do say may be given in evidence. '
The caution in England and Wales does not explicitly require that a suspect affirms that he or she understands the caution.. In addition the caution need not be explicitly stated if it is obvious that the suspect is already aware of his rights, for example if he is a police officer, as long as the suspect is definitely aware that he is under caution. Furthermore the invoking of that right does not prohibit officers from asking further questions.
According to § 136 StPO (Strafprozessordnung = Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation:
It is not allowed to draw any inference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the same crime.
Foreign suspects have the following additional rights:
These would be contained in a "letter of rights" which would be a printed document to be given to suspects after they are detained and before interrogation The right to silence does not fall under the proposed common standard. This has been criticised on the grounds that the "letter of rights" would be one from which what some people consider to be the most important right is missing, and that this would be confusing for the accused rather than helpful. On the other hand, obstacles to its enactment include the anti-terrorism laws of certain EU members which conflict with these proposed rights.
The cantonal codes of procedure, which remain in force until 2010, generally contain similar provisions.