Crim Justice Quiz

The Intelligence Function

The importance of gathering intelligence in police work cannot be overstressed.

In law enforcement parlance, useful information is known as intelligence, and the need for intelligence leads police investigators to question both suspects and informants—and even more often, potentially knowledgeable citizens who may have been witnesses or victims. Data gathering is a crucial form of intelligence; without it, enforcement agencies would be virtually powerless to plan and effect arrests.

The importance of gathering intelligence in police work cannot be overstressed. Studies have found that the one factor most likely to lead to arrest in serious crimes is the presence of a witness who can provide information to the police. Undercover operations, neighborhood watch programs, “crime stopper” groups, and organized detective work all contribute this vital information.

Informants

Information gathering is a complex process, and many ethical questions have been raised about the techniques police use to gather information. The use of paid informants, for example, is an area of concern to ethicists who believe that informants are often paid while getting away with minor crimes that investigators are willing to overlook. Another concern is the police practice (endorsed by some prosecutors) of agreeing not to charge one offender out of a group if he or she will “talk” and testify against the others.

As we have seen, probable cause is an important aspect of both police searches and legal arrests. The successful use of informants in supporting requests for a warrant depends on the demonstrable reliability of their information. The case of Aguilar v. Texas (1964)139 clarified the use of informants and established a two-pronged test. The U.S. Supreme Court ruled that informant information can establish probable cause if both of the following criteria are met:

The source of the informant’s information is made clear.

The police officer has a reasonable belief that the informant is reliable.

The two-pronged test of Aguilar v. Texas was intended to prevent the issuance of warrants on the basis of false or fabricated information. The case of U.S. v. Harris (1971)140 provided an exception to the two-pronged Aguilar test. The Harris case recognized the fact that when an informant provides information that is damaging to him or her, it is probably true. In Harris, an informant told police that he had purchased non-tax-paid whiskey from another person. Because the information also implicated the informant in a crime, it was held to be accurate, even though it could not meet the second prong of the Aguilar test. “Admissions of crime,” said the Court, “carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search.”141

In 1983, in the case of Illinois v. Gates,142 the Court adopted a totality-of-circumstances approach and held that sufficient probable cause for issuing a warrant exists where an informant can be reasonably believed on the basis of everything that the police know. The Gates case involved an anonymous informant who provided incriminating information about another person through a letter to the police. Although the source of the information was not stated and the police were unable to say whether the informant was reliable, the overall sense of things, given what was already known to police, was that the information supplied was probably valid. In Gates, the Court held that probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

In the 1990 case of Alabama v. White,143 the Supreme Court ruled that an anonymous tip, even in the absence of other corroborating information about a suspect, could form the basis for an investigatory stop if the informant accurately predicted the future behavior of the suspect. The Court reasoned that the ability to predict a suspect’s behavior demonstrates a significant degree of familiarity with the suspect’s affairs. In the words of the Court, “Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for the police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.”144

In 2000, in the case of Florida v. J. L.,145 the Court held that an anonymous tip that a person is carrying a gun does not, without more evidence, justify a police officer’s stop and frisk of that person. Ruling that such a search is invalid under the Fourth Amendment, the Court rejected the suggestion of a firearm exception to the general stop-and-frisk rule.146 The identity of informants may be kept secret only if sources have been explicitly assured of confidentiality by investigating officers or if a reasonably implied assurance of confidentiality has been made. In U.S. Dept. of Justice v. Landano (1993),147 the U.S. Supreme Court required that an informant’s identity be revealed through a request made under the federal Freedom of Information Act. In that case, the FBI had not specifically assured the informant of confidentiality, and the Court ruled that “the government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources.”

Police Interrogation

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In 2003, Illinois became the first state in the nation to require the electronic recording of police interrogations and confessions in homicide cases.148 State lawmakers hoped that the use of recordings would reduce the incidence of false confessions as well as the likelihood of convictions based on such confessions. Under the law, police interrogators must create videotape or audiotape recordings of any questioning of suspects. The law prohibits the courtroom introduction of statements and confessions that have not been taped. Proponents of the law say that it will prevent the police intimidation of murder suspects and will put an end to coerced confessions.

Some argue that the mandatory recording of police interrogations offers overwhelming benefits at minimal cost. “By creating an objective and reviewable record,” says Richard A. Leo of the University of San Francisco Law School, “electronic recording promotes truth-finding in the criminal process, relegates ‘swearing contests’ to the past, and saves scarce resources at multiple levels of the criminal justice system.”149 According to Leo, requiring that all interrogations be recorded will benefit police and prosecutors by increasing the accuracy of confessions and convictions and “will also reduce the number of police-induced false confessions and the wrongful convictions they cause.”

The U.S. Supreme Court has defined interrogation as any behaviors by the police “that the police should know are reasonably likely to elicit an incriminating response from the suspect.”150 Hence, interrogation may involve activities that go well beyond mere verbal questioning, and the Court has held that interrogation may include “staged lineups, reverse lineups, positing guilt, minimizing the moral seriousness of crime, and casting blame on the victim or society” (Figure 7-2). The Court has also held that “police words or actions normally attendant to arrest and custody do not constitute interrogation” unless they involve pointed or directed questions. Hence, an arresting officer may instruct a suspect on what to do and may chitchat with him or her without engaging in interrogation within the meaning of the law. Once police officers make inquiries intended to elicit information about the crime in question, however, interrogation has begun. The interrogation of suspects, like other areas of police activity, is subject to constitutional limits as interpreted by the courts, and a series of landmark decisions by the U.S. Supreme Court has focused on police interrogation.

Figure 7-2 Police Interrogation

Source: Pearson Education, Inc.

Figure 7-2 Full Alternative Text

interrogationThe information-gathering activity of police officers that involves the direct questioning of suspects.

Physical Abuse

The first in a series of significant cases regarding police interrogation was Brown v. Mississippi,151 decided in 1936. The Brown case began with the murder of a white store owner in Mississippi in 1934 during a robbery. A posse formed and went to the home of a local African American man rumored to have been one of the perpetrators. They dragged the suspect from his home, put a rope around his neck, and hoisted and lowered him from a tree a number of times, hoping to get a confession from the man, but failing. The posse was headed by a deputy sheriff who then arrested other suspects in the case and laid them over chairs in the local jail and whipped them with belts and buckles until they “confessed.” These confessions were used in the trial that followed, and all three defendants were convicted of murder. Their convictions were upheld by the Mississippi Supreme Court. In 1936, however, the case was reviewed by the U.S. Supreme Court, which overturned all of the convictions, saying that it was difficult to imagine techniques of interrogation more “revolting” to the sense of justice than those used in this case.

Inherent Coercion

Interrogation need not involve physical abuse for it to be contrary to constitutional principles. In the case of Ashcraft v. Tennessee (1944),152 the U.S. Supreme Court found that interrogation involving inherent coercion was not acceptable. Ashcraft had been charged with the murder of his wife, Zelma. He was arrested on a Saturday night and interrogated by relays of skilled interrogators until Monday morning, when he purportedly made a statement implicating himself in the murder. During questioning, he had faced a blinding light but was not physically mistreated. Investigators later testified that when the suspect requested cigarettes, food, or water, they “kindly” provided them. The Court’s ruling, which reversed Ashcraft’s conviction, made it plain that the Fifth Amendment guarantee against self-incrimination excludes any form of official coercion or pressure during interrogation.

inherent coercionThe tactics used by police interviewers that fall short of physical abuse but that nonetheless pressure suspects to divulge information.

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A similar case, Chambers v. Florida, was decided in 1940.153 In that case, four black men were arrested without warrants as suspects in the robbery and murder of an aged white man. After several days of questioning in a hostile atmosphere, the men confessed to the murder. The confessions were used as the primary evidence against them at their trial, and all four were sentenced to die. On appeal, the U.S. Supreme Court held that “the very circumstances surrounding their confinement and their questioning without any formal charges having been brought, were such as to fill petitioners with terror and frightful misgivings.”154 Learn more about the case of Chambers v. Florida at https://tinyurl.com/4uy3c2w.

Psychological Manipulation

Not only must interrogation be free of coercion and hostility, but it also cannot involve sophisticated trickery designed to ferret out a confession. Interrogators do not necessarily have to be scrupulously honest in confronting suspects, and the expert opinions of medical and psychiatric practitioners may be sought in investigations. However, the use of professionals skilled in psychological manipulation to gain confessions was banned by the Court in the case of Leyra v. Denno155 in 1954, during the heyday of psychiatric perspectives on criminal behavior.

psychological manipulationManipulative actions by police interviewers that are designed to pressure suspects to divulge information and that are based on subtle forms of intimidation and control.

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Not only must interrogation be free of coercion and hostility, but it also cannot involve sophisticated trickery designed to ferret out a confession.

In 1991, in the case of Arizona v. Fulminante,156 the U.S. Supreme Court further curtailed the use of sophisticated techniques to gain a confession. Oreste Fulminante was an inmate in a federal prison when he was approached by a fellow inmate who was an FBI informant. The informant told Fulminante that other inmates were plotting to kill him because of a rumor that he had killed a child. The informant offered to protect Fulminante if he divulged the details of his crime. Fulminante then described his role in the murder of his 11-year-old stepdaughter. He was charged with that murder, tried, and convicted.

On appeal to the U.S. Supreme Court, Fulminante’s lawyers argued that their client’s confession had been coerced because of the threat of violence communicated by the informant. The Court agreed that the confession had been coerced and ordered a new trial at which the confession could not be admitted into evidence. Simultaneously, however, the Court found that the admission of a coerced confession should be considered a harmless “trial error” that need not necessarily result in reversal of a conviction if other evidence still proves guilt. The decision was especially significant because it partially reversed the Court’s earlier ruling, in Chapman v. California (1967),157 where it was held that forced confessions were such a basic form of constitutional error that they automatically invalidated any conviction to which they related. Fulminante was convicted again at his second trial, where his confession was not entered into evidence, and he was sentenced to die. The Arizona Supreme Court, however, overturned his conviction, ruling that testimony describing statements the victim had made about fearing for her life prior to her murder, and which had been entered into evidence, were hearsay and had prejudiced the jury.158

Finally, the area of eyewitness identification bears discussion. In 2011, in the case of State v. Henderson,159 the New Jersey Supreme Court held that the current legal standard for assessing eyewitness identifications must be revised because it did not offer adequate measures for reliability, did not sufficiently deter inappropriate police conduct, and overstated the jury’s ability to evaluate identification evidence.

In 2012, in the case of Perry v. New Hampshire,160 the U.S. Supreme Court recognized problems with eyewitness identification, especially when such identification is obtained by skilled law enforcement interrogators. Still, the court denied that the due process clause of the U.S. Constitution requires a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.

Learn more about detecting deception from the FBI at https://www.justicestudies.com/pdf/truth_deception.pdf.

The Right to a Lawyer at Interrogation

In 1964, in the case of Escobedo v. Illinois,161 the right to have legal counsel present during police interrogation was formally recognized.

In 1981, the case of Edwards v. Arizona162 established a “bright-line rule” (i.e., specified a criterion that cannot be violated) for investigators to use in interpreting a suspect’s right to counsel. In Edwards, the Supreme Court reiterated its Miranda concern that once a suspect who is in custody and is being questioned requests the assistance of counsel, all questioning must cease until an attorney is present. In 1990, the Court refined the rule in Minnick v. Mississippi,163 when it held that after the suspect has had an opportunity to consult his or her lawyer, interrogation may not resume unless the lawyer is present.

The 1986 case of Michigan v. Jackson164 provided further support for Edwards. In Jackson, the Court forbade police from initiating the interrogation of criminal defendants who have invoked their right to counsel at an arraignment or similar proceeding.

Similarly, according to Arizona v. Roberson (1988),165 the police may not avoid the suspect’s request for a lawyer by beginning a new line of questioning, even if it is about an unrelated offense.

In 1994, however, in the case of Davis v. U.S.,166 the Court “put the burden on custodial suspects to make unequivocal invocations of the right to counsel.” In the Davis case, a man being interrogated in the death of a sailor waived his Miranda rights but later said, “Maybe I should talk to a lawyer.” Investigators asked the suspect clarifying questions, and he responded, “No, I don’t want a lawyer.” He appealed his conviction, claiming that interrogation should have ceased when he mentioned a lawyer. The Court, in affirming the conviction, stated that “it will often be good police practice for the interviewing officers to clarify whether or not [the suspect] actually wants an attorney.”

In the 2009 case of Montejo v. Louisiana,167 however, in something of an about-face, the U.S. Supreme Court held that “Michigan v. Jackson should be and now is overruled.” The justices found that strict interpretations of Jackson could lead to practical problems. Montejo had been charged with first-degree murder, and appointment of counsel was ordered at his arraignment. He did not, however, ask to see his attorney. Later that same day, the police read Montejo his Miranda rights, and he agreed to accompany them on a trip to locate the murder weapon. During the trip, he wrote an incriminating letter of apology to the victim’s widow. Upon returning, he met with his court-appointed attorney for the first time. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death. In the words of the Court, “Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind.” In effect, although an attorney had been appointed to represent Montejo, he had never actually invoked his right to counsel.

Finally, in 2010, in the case of Maryland v. Shatzer,168 the Court held that police could reopen the interrogation of a suspect who has invoked his right to counsel following a 14-day or longer break in questioning. Even though the defendant (Shatzer) had been in state prison during the break, the justices said, he had been free “from the coercive power of an interrogator” during that time.

Suspect Rights: The Miranda Decision

In the area of suspect rights, no case is as famous as Miranda v. Arizona (1966),169 which established the well-known Miranda warnings. Many people regard Miranda as the centerpiece of the Warren Court due process rulings.

Miranda warningsThe advisement of rights due criminal suspects by the police before questioning begins. Miranda warnings were first set forth by the U.S. Supreme Court in the 1966 case of Miranda v. Arizona.

The case involved Ernesto Miranda, who was arrested in Phoenix, Arizona, and was accused of having kidnapped and raped a young woman. At police headquarters, he was identified by the victim. After being interrogated for two hours, Miranda signed a confession that formed the basis of his later conviction on the charges.

Ernesto Miranda, shown here after a jury convicted him for a second time. Miranda’s conviction on rape and kidnapping charges after arresting officers failed to advise him of his rights led to the now-famous Miranda warnings. What do the Miranda warnings say?

AP Images

On appeal, the U.S. Supreme Court rendered what some regard as the most far-reaching opinion to have affected criminal justice in the last half century. The Court ruled that Miranda’s conviction was unconstitutional because “[t]he entire aura and atmosphere of police interrogation without notification of rights and an offer of assistance of counsel tends to subjugate the individual to the will of his examiner.”

The Court continued, saying that the suspect

must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer the questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

To ensure that proper advice is given to suspects at the time of their arrest, the now-famous Miranda rights are read before any questioning begins. These rights, as found on a Miranda warning card commonly used by police agencies, appear in the “CJ Issues” box.

Once suspects have been advised of their Miranda rights, they are commonly asked to sign a paper that lists each right, in order to confirm that they were advised of their rights and that they understand each right. Questioning may then begin, but only if suspects waive their rights not to talk and to have a lawyer present during interrogation.

In 1992, Miranda rights were effectively extended to illegal immigrants living in the United States. In a settlement of a class-action lawsuit against the Immigration and Naturalization Service, U.S. District Court Judge William Byrne, Jr., approved the printing of millions of notices in several languages to be given to arrestees. The approximately 1.5 million illegal aliens arrested each year must be told they may (1) talk with a lawyer, (2) make a phone call, (3) request a list of available legal services, (4) seek a hearing before an immigration judge, (5) possibly obtain release on bond, and (6) contact a diplomatic officer representing their country.170 This was “long overdue,” said Roberto Martinez of the American Friends Service Committee’s Mexico–U.S. border program. “Up to now, we’ve had total mistreatment of civil rights of undocumented people.”

When the Miranda decision was originally handed down, some hailed it as ensuring the protection of individual rights guaranteed under the Constitution. To guarantee those rights, they suggested, no better agency is available than the police themselves, since the police are present at the initial stages of the criminal justice process. Critics of Miranda, however, argued that the decision put police agencies in the uncomfortable and contradictory position not only of enforcing the law but also of having to offer defendants advice on how they might circumvent conviction and punishment. Under Miranda, the police partially assume the role of legal adviser to the accused.

In 1999, however, in the case of U.S. v. Dickerson,171 the Fourth Circuit U.S. Court of Appeals upheld an almost-forgotten law that Congress had passed in 1968 with the intention of overturning Miranda. That law, Section 3501 of Chapter 223, Part II of Title 18 of the U.S. Code, says that “a confession … shall be admissible in evidence if it is voluntarily given.” On appeal in 2000, the U.S. Supreme Court upheld its original Miranda ruling by a 7–2 vote and found that Miranda is a constitutional rule (i.e., a fundamental right inherent in the U.S. Constitution) that cannot be dismissed by an act of Congress. “Miranda and its progeny,” the majority wrote in Dickerson v. U.S. (2000), will continue to “govern the admissibility of statements made during custodial interrogation in both state and federal courts.”172

On June 28, 2004, the U.S. Supreme Court handed down two important decisions—U.S. v. Patane173 and Missouri v. Seibert174—in a continuing refinement of its original 1966 ruling in Miranda v. Arizona.175

As described in this chapter, Miranda created a presumption of coercion in all custodial interrogations. Generally speaking, only a demonstration that Miranda warnings have been provided to a suspect has been sufficient to counter that presumption and to allow legal proceedings based on the fruits of an interrogation to move forward. Consequently, some scholars were surprised by Patane, in which the Court found that “a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule.”

The Patane case began with the arrest of a convicted felon after a federal agent told officers that the man owned a handgun illegally. At the time of arrest, the officers tried to advise the defendant of his rights, but he interrupted them, saying that he already knew his rights. The officers then asked him about the pistol, and he told them where it was. After the weapon was recovered, the defendant was charged with illegal possession of a firearm by a convicted felon.

At first glance, Patane appears to contradict the fruit of the poisoned tree doctrine that the Court established in the 1920 case of Silverthorne Lumber Co. v. U.S.176 and that Wong Sun v. U.S. (1963)177 made applicable to verbal evidence derived immediately from an illegal search and seizure. An understanding of Patane, however, requires recognition of the fact that the Miranda rule is based on the self-incrimination clause of the Fifth Amendment to the U.S. Constitution. According to the Court in Patane, “that Clause’s core protection is a prohibition on compelling a criminal defendant to testify against himself at trial.” It cannot be violated, the Court said, “by the introduction of nontestimonial evidence obtained as a result of voluntary statements.” In other words, according to the Court, only (1) coerced statements and (2) those voluntary statements made by a defendant that might directly incriminate him or her at a later trial are precluded by a failure to read a suspect his or her Miranda rights. Such voluntary statements would, of course, include such things as an outright confession.

Significantly, however, oral statements must be distinguished, the Court said, from the “physical fruits of the suspect’s unwarned but voluntary statements.” In other words, if an unwarned suspect is questioned by police officers and tells the officers where they can find an illegal weapon or a weapon that has been used in a crime, the weapon can be recovered and later introduced as evidence at the suspect’s trial. If the same unwarned suspect, however, tells police that he committed a murder, then his confession will not be allowed into evidence at trial. The line drawn by the court is against the admissibility of oral statements made by an unwarned defendant, not the nontestimonial physical evidence resulting from continued police investigation of such statements. Under Patane, the oral statements themselves cannot be admitted, but the physical evidence derived from them can be. “Thus,” wrote the justices in Patane, “admission of nontestimonial physical fruits (the pistol here) does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself.”

A suspect being read his Miranda rights immediately after arrest. Officers often read Miranda rights from a card or digital device to preclude the possibility of a mistake. What might the consequences of a mistake be?

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CJ | ISSUES

The Miranda Warnings

Adult Rights Warning

Suspects 18 years old or older who are in custody must be advised of the following rights before any questioning begins:

You have the right to remain silent.

Anything you say can be used against you in a court of law.

You have the right to talk to a lawyer and to have a lawyer present while you are being questioned.

If you want a lawyer before or during questioning but cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning.

If you answer questions now without a lawyer here, you still have the right to stop answering questions at any time.

Waiver of Rights

After reading and explaining the rights of a person in custody, an officer must also ask for a waiver of those rights before any questioning. The following waiver questions must be answered affirmatively, either by express answer or by clear implication. Silence alone is not a waiver.

Do you understand each of these rights I have explained to you? (Answer must be YES.)

Having these rights in mind, do you now wish to answer questions? (Answer must be YES.)

Do you now wish to answer questions without a lawyer present? (Answer must be YES.)

The following question must be asked of juveniles ages 14, 15, 16, and 17.

Do you now wish to answer questions without your parents, guardians, or custodians present? (Answer must be YES.)

Source: Miranda v. Arizona, 384 U.S. 436 (1966).

The Seibert case addressed a far different issue: that of the legality of a two-step police interrogation technique in which suspects were questioned and—if they made incriminating statements—were then advised of their Miranda rights and questioned again. The justices found that such a technique could not meet constitutional muster, writing, “When the [Miranda] warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them…. And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations … simply because Miranda warnings formally punctuate them in the middle.”

Waiver of Miranda Rights by Suspects

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Suspects in police custody may legally waive their Miranda rights through a voluntary “knowing and intelligent” waiver. A knowing waiver can be made only if a suspect is advised of his or her rights and is in a condition to understand the advisement. A rights advisement made in English to a Spanish-speaking suspect, for example, cannot produce a knowing waiver. Likewise, an intelligent waiver of rights requires that the defendant be able to understand the consequences of not invoking the Miranda rights. In the case of Moran v. Burbine (1986),178 the U.S. Supreme Court defined an intelligent and knowing waiver as one “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Similarly, in Colorado v. Spring (1987),179 the Court held that an intelligent and knowing waiver can be made even though a suspect has not been informed of all the alleged offenses about which he or she is about to be questioned.

Inevitable-Discovery Exception to Miranda

The case of Robert Anthony Williams provides a good example of the change in the U.S. Supreme Court philosophy, alluded to earlier in this chapter, from an individual-rights perspective toward a public-order perspective. The case epitomizes what many consider a slow erosion of the advances in defendant rights, which reached their apex in Miranda. This case began in 1969, at the close of the Warren Court era. Williams was apprehended as a suspect in the murder of 10-year-old Pamela Powers around Christmas time and was advised of his rights. Later, as Williams rode in a car with detectives who were searching for the girl’s body, one of the detectives made what has since become known as the “Christian burial speech.” The detective told Williams that since Christmas was almost upon them, it would be “the Christian thing to do” to see to it that Pamela had a decent burial rather than having to lie in a field somewhere. Williams confessed and led detectives to the body. However, because Williams had not been reminded of his right to have a lawyer present during his conversation with the detective, the Supreme Court in Brewer v. Williams (1977)180 overturned Williams’s conviction, saying that the detective’s remarks were “a deliberate eliciting of incriminating evidence from an accused in the absence of his lawyer.”

In 1977, Williams was retried for the murder, but his remarks in leading detectives to the body were not entered into evidence. The discovery of the body was used, however, and Williams was convicted, prompting another appeal to the Supreme Court based on the argument that the body should not have been used as evidence because it was discovered due to the illegally gathered statements. This time, in the 1984 case of Nix v. Williams,181 the Supreme Court affirmed Williams’s second conviction, holding that the body would have been found anyway, since detectives were searching in the direction where it lay when Williams revealed its location. This ruling came during the heyday of the Burger Court and clearly demonstrates a tilt by the Court away from suspects’ rights and an acknowledgment of the imperfect world of police procedure. The Williams case, as it was finally resolved, is said to have created the inevitable-discovery exception to the Miranda requirements. The inevitable-discovery exception means that evidence, even if it was otherwise gathered inappropriately, can be used in a court of law if it would have invariably turned up in the normal course of events.

Public-Safety Exception to Miranda

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In 2013, U.S. officials announced that they would question 19-year-old Dzhokhar Tsarnaev, the surviving Boston Marathon bomber, before reading him his Miranda rights.182 The Boston attack killed three people and wounded more than 170. Tsarnaev had been wounded and was captured after his brother had been killed in a police shoot-out. Law enforcement officials said that they would question the hospitalized Tsarnaev under the well-established public-safety exception to the Miranda rule which is intended to allow authorities to conduct an initial public-safety interview in order to quickly determine whether any danger to the public still exists. The Tsarnaev case raised questions, however, because it wasn’t clear that taking the time for a rights advisement endangered public safety.

The public-safety exception was created in 1984, when the U.S. Supreme Court decided the case of New York v. Quarles.183 That case centered on a rape in which the victim told police her assailant had a gun and had fled into a nearby supermarket. Two police officers entered the store and apprehended the suspect. One officer immediately noticed that the man was wearing an empty shoulder holster and, fearing that a child might find the discarded weapon, quickly asked, “Where’s the gun?” Quarles was convicted of rape but appealed his conviction, requesting that the weapon be suppressed as evidence because officers had not advised him of his Miranda rights before asking him about it. The Supreme Court disagreed, stating that considerations of public safety were overriding and negated the need for rights advisement prior to limited questioning that focused on the need to prevent further harm. Following such reasoning, interrogators decided not to Mirandize Tsarnaev before questioning him, in the belief that he might be able to provide information about bombs or other plots that could pose an immediate danger to the public.

The U.S. Supreme Court has also held that in cases when the police issue Miranda warnings, a later demonstration that a person may have been suffering from mental problems does not necessarily negate a confession. Colorado v. Connelly (1986)184 involved a man who approached a Denver police officer and said he wanted to confess to the murder of a young girl. The officer immediately informed him of his Miranda rights, but the man waived them and continued to talk. When a detective arrived, the man was again advised of his rights and again waived them. After being taken to the local jail, the man began to hear “voices” and later claimed that it was these voices that had made him confess. At the trial, the defense moved to have the earlier confession negated on the basis that it was not voluntarily or freely given because of the defendant’s mental condition. On appeal, the U.S. Supreme Court disagreed, saying that “no coercive government conduct occurred in this case.” Hence “self-coercion,” due to either a guilty conscience or faulty thought processes, does not bar prosecution based on information revealed willingly by a suspect.

The 1986 case of Kuhlmann v. Wilson185 represents another refinement of Miranda. In this case, the Court upheld a police informant’s lawful ability to gather information for use at a trial from a defendant while the two were placed together in a jail cell. The passive gathering of information was judged to be acceptable, provided that the informant did not make attempts to elicit information.

The immediate aftermath of a terrorist explosion at the finish line of the 2013 Boston Marathon. Dzhokhar Tsarnaev, one of two brothers who planted the explosive devices among the crowd, survived a citywide manhunt, but authorities invoked the public-safety exception to the Miranda requirement in not advising him of his rights for a couple of days following his arrest. Why did they do that, and what information were they hoping to uncover by questioning Tsarnaev?

Kelvin Ma/ZUMA Press, Inc./Alamy Stock Photo

In the case of Illinois v. Perkins (1990),186 the Court expanded its position to say that under appropriate circumstances, even the active questioning of a suspect by an undercover officer posing as a fellow inmate does not require Miranda warnings. In Perkins, the Court found that, lacking other forms of coercion, the fact that the suspect was not aware of the questioner’s identity as a law enforcement officer ensured that his statements were freely given. In the words of the Court, “The essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate.” Learn more about the public-safety exception directly from the FBI at https://www.justicestudies.com/pubs/public_safety.pdf.

Miranda and the Meaning of Interrogation

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Modern interpretations of the applicability of Miranda warnings turn on an understanding of interrogation. The Miranda decision, as originally rendered, specifically recognized the need for police investigators to make inquiries at crime scenes to determine facts or to establish identities. As long as the individual questioned is not yet in custody and as long as probable cause is lacking in the investigator’s mind, such questioning can proceed without Miranda warnings. In such cases, interrogation, within the meaning of Miranda, has not yet begun.

The case of Rock v. Zimmerman (1982)187 provides a different sort of example—one in which a suspect willingly made statements to the police before interrogation began. The suspect had set fire to his own house and shot and killed a neighbor. When the fire department arrived, he began shooting again and killed the fire chief. Cornered later in a field, the defendant, gun in hand, spontaneously shouted at police, “How many people did I kill? How many people are dead?”188 This spontaneous statement was held to be admissible evidence at the suspect’s trial.

It is also important to recognize that in the Miranda decision, the Supreme Court required that officers provide warnings only in those situations involving both arrest and custodial interrogation—what some call the Miranda triggers. In other words, it is generally permissible for officers to take a suspect into custody and listen, without asking questions, while he or she talks. Similarly, they may ask questions without providing a Miranda warning, even within the confines of a police station house, as long as the person questioned is not a suspect and is not under arrest.189 Warnings are required only when officers begin to actively and deliberately elicit responses from a suspect whom they know has been indicted or who is in custody.

Miranda triggersThe dual principles of custody and interrogation, both of which are necessary before an advisement of rights is required.

Officers were found to have acted properly in the case of South Dakota v. Neville (1983)190 when they informed a man suspected of driving while intoxicated (DWI), without reading him his rights, that he would stand to lose his driver’s license if he did not submit to a Breathalyzer test. When the driver responded, “I’m too drunk. I won’t pass the test,” his answer became evidence of his condition and was permitted at trial.

A third-party conversation recorded by the police after a suspect has invoked the Miranda right to remain silent may be used as evidence, according to a 1987 ruling in Arizona v. Mauro.191 In Mauro, a man who willingly conversed with his wife in the presence of a police tape recorder, even after invoking his right to keep silent, was held to have effectively abandoned that right.

When a waiver is not made, however, in-court references to a defendant’s silence following the issuing of Miranda warnings are unconstitutional. In the 1976 case of Doyle v. Ohio,192 the U.S. Supreme Court definitively ruled that “a suspect’s [post-Miranda] silence will not be used against him.” Even so, according to the Court in Brecht v. Abrahamson (1993),193 prosecution efforts to use such silence against a defendant may not invalidate a finding of guilt by a jury unless the “error had substantial and injurious effect or influence in determining the jury’s verdict.”194

Of course, when a person is not a suspect and is not charged with a crime, Miranda warnings need not be given. Such logic led to what some have called a “fractured opinion”195 in the 2003 case of Chavez v. Martinez.196 The case involved Oliverio Martinez, who was blinded and paralyzed in a police shooting after he grabbed an officer’s weapon during an altercation. An Oxnard, California, police officer named Chavez persisted in questioning Martinez while he was awaiting treatment despite his pleas to stop and the fact that he was obviously in great pain. The Court held that “police questioning in [the] absence of Miranda warnings, even questioning that is overbearing to [the] point of coercion, does not violate constitutional protections against self-incrimination, as long as no incriminating statements are introduced at trial.”197 Nonetheless, the Court found that Martinez could bring a civil suit against Chavez and the Oxnard Police Department for violation of his constitutional right to due process.

In the 2010 case of Florida v. Powell, the U.S. Supreme Court held that although Miranda warnings are generally required prior to police interrogation, the wording of those warnings is not set in stone. The Court ruled that “in determining whether police warnings were satisfactory, reviewing courts are not required to examine them as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.”

Also, in 2010, in the case of Berghuis v. Thompkins, the Court held that a Michigan suspect did not invoke his Fifth Amendment right to remain silent by simply not answering questions that interrogators put to him.198 Instead, the justices ruled, a suspect must unambiguously assert his right to remain silent before the police are required to end their questioning. In this case, the defendant, Van Chester Thompkins, was properly advised of his rights prior to questioning, and, although he was largely silent during a three-hour interrogation, he never said that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Near the end of the interrogation, however, he answered “yes” when asked whether he prayed to God to forgive him for the shooting death of a murder victim.

Finally, in 2013, in the case of Salinas v. Texas, the Supreme Court found that an offender must expressly invoke his Miranda privileges, and that failure to do so can later result in use at trial of the offender’s silence as evidence of his guilt.199 According to the Court, “A defendant normally does not invoke the privilege (against self-incrimination) by remaining silent.”