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admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,’’ when Bram v. United States had announced that the self-incrimination clause furnished the basis for admitting or excluding evidence in federal courts. 315 One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms; while it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois, 316 it held inadmissible the confession obtained from a suspect in custody who had repeatedly requested and had repeatedly been refused an opportunity to consult with his retained counsel, who was present at the police station seeking to gain access to Escobedo. 317 While Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights. 318 Miranda v. Arizona.—The Sixth Amendment holding of Escobedo was deemphasized and the Fifth Amendment self-incrimi- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00060 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1421 319 384 U.S. 436, 444–45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to be applied retroactively. In cases where trials commenced after the decisions were announced, the due process ‘‘totality of circumstances’’ test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 (1966). nation rule made preeminent in Miranda v. Arizona, 319 in which the Court summarized its holding as follows: ‘‘[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right of refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.’’ The basis for the Court’s conclusions was the determination that police interrogation as conceived and practiced was inherently coercive and that this compulsion, though informal and legally sanctionless, was contrary to the protection assured by the self-incrimination clause, the protection afforded in a system of criminal justice which convicted a defendant on the basis of evidence independently secured and not out of his own mouth. In the Court’s view, this had been the law in the federal courts since 1897, and the application of the clause to the States in 1964 necessitated the application of the principle in state courts as well. Therefore, the clause requires that police interrogation practices be so structured as to secure to suspects that they not be stripped of the ability to VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00061 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1422 AMENDMENT 5—RIGHTS OF PERSONS 320 Justices Clark, Harlan, Stewart, and White dissented, finding no historical support for the application of the clause to police interrogation and rejecting the policy considerations for the extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 499, 504, 526 (1966). Justice White argued that while the Court’s decision was not compelled or even strongly suggested by the Fifth Amendment, its history, and the judicial precedents, this did not preclude the Court from making new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a view of interrogation as inherently coercive and because the decision did not adequately protect society’s interest in detecting and punishing criminal behavior. Id. at 531–45. 321 384 U.S. at 457. For the continuing recognition of the difference between the traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978). 322 Johnson v. New Jersey, 384 U.S. 719, 731 (1966). 323 See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burger concurring) (‘‘The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date.’’) make a free and rational choice between speaking and not speaking. The warnings and the provision of counsel were essential, the Court said, to this type of system. 320 ‘‘In these cases,’’ said Chief Justice Warren, ‘‘we might not find the defendants’ statements to have been involuntary in traditional terms.’’ 321 The acknowledgment that the decision considerably expanded upon previous doctrine, even if the assimilation of self-incrimination values by the confession-exclusion rule be considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement officers had relied justifiably upon prior cases, ‘‘now no longer binding,’’ which treated the failure to warn a suspect of his rights or the failure to grant access to counsel as one of the factors to be considered. 322 It was thus not the application of the self-incrimination clause to police interrogation in Miranda that constituted a major change from precedent but rather the series of warnings and guarantees which the Court imposed as security for the observance of the privilege. While the Court’s decision rapidly became highly controversial and the source of much political agitation, including a prominent role in the 1968 presidential election, the Court has continued to adhere to it, 323 albeit not without considerable qualification. For years, the constitutional status of the Miranda warnings was clouded in uncertainty. Had the Court announced a constitutional rule, or merely set forth supervisory rules that could be superseded by statutory rules? The fact that Miranda itself applied the rules to a state court proceeding, and that the Court in subsequent cases consistently applied the warnings to state proceedings, was strong evidence of constitutional moorings. In 1968, however, Congress en- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1423 324 Pub. L. No. 90-351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No. 1097, 90th Cong., 2d Sess. 37-53 (1968). An effort to enact a companion measure applicable to the state courts was defeated. 325 New York v. Quarles, 467 U.S. 549, 653 (1984). 326 Michigan v. Tucker, 417 U.S. 433, 444 (1974). 327 , 530 U.S. 428 (2000). 328 530 U.S. at 438. 329 530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441-42). 330 530 U.S. at 443. acted a statute designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test. 324 The statute lay unimplemented, for the most part, due to constitutional doubts about it. The Court also created exceptions to the Miranda warnings over the years, and referred to the warnings as ‘‘prophylactic’’ 325 and ‘‘not themselves rights protected by the Constitution.’’ 326 There were even hints that some Justices might be willing to overrule the decision. In Dickerson v. United States, 327 the Court resolved the basic issue, holding that Miranda was a constitutional decision that could not be overturned by statute, and consequently that 18 U.S.C. § 3501 was unconstitutional. Application of Miranda warnings to state proceedings necessarily implied a constitutional base, the Court explained, since federal courts ‘‘hold no supervisory authority over state judicial proceedings.’’ 328 Moreover, Miranda itself had purported to ‘‘give concrete constitutional guidance to law enforcement agencies and courts to follow.’’ 329 That the Miranda rules are constitution-based does not mean that they are ‘‘immutable,’’ however. The Court repeated its invitation for legislative action that would be ‘‘at least as effective’’ in protecting a suspect’s right to remain silent during custodial interrogation. Section 3501, however, merely reinstated the ‘‘totality-of-the-circumstances’’ rule held inadequate in Miranda, so that provision could not be considered as effective as the Miranda warnings. The Dickerson Court also rejected a request to overrule Miranda. ‘‘Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance,’’ Chief Justice Rehnquist wrote for a seven-Justice majority, ‘‘the principles of stare decisis weigh heavily against overruling it now.’’ There was no special justification for overruling the decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had ‘‘reaffirm[ed]’’ its ‘‘core ruling.’’ Moreover, Miranda warnings had ‘‘become so embedded in routine police practice [that they] have become part of our national culture.’’ 330 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00063 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1424 AMENDMENT 5—RIGHTS OF PERSONS 331 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a distinction between a constitutional violation and a violation of ‘‘the prophylactic rules developed to protect that right.’’ The actual holding in Tucker, however, had turned on the fact that the interrogation had preceded the Miranda decision and that warnings—albeit not full Miranda warnings—had been given. 332 428 U.S. 465 (1976). 333 507 U.S. 680 (1993). 334 367 U.S. 643 (1961). 335 507 U.S. at 691–92. 336 507 U.S. at 693. 337 Miranda v. Arizona, 384 U.S. 436, 444 (1966). 338 Mathis v. United States, 391 U.S. 1 (1968) (suspect in state jail questioned by federal officer about a federal crime). But even though a suspect is in jail, hence in custody ‘‘in a technical sense,’’ a conversation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is conversing with a government agent. Illinois v. Perkins, 496 U.S. 292 (1990). 339 Orozco v. Texas, 394 U.S. 324 (1969) (four policemen entered suspect’s bedroom at 4 a.m. and questioned him; though not formally arrested, he was in custody). Although the Court had suggested in 1974 that most Miranda claims could be disallowed in federal habeas corpus cases, 331 such a course was squarely rejected in 1993. The Stone v. Powell 332 rule, precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s Miranda claim, the Court ruled in Withrow v. Williams. 333 The Miranda rule differs from the Mapp v. Ohio 334 exclusionary rule denied enforcement in Stone, the Court explained. While both are prophylactic rules, Miranda unlike Mapp, safeguards a fundamental trial right, the privilege against self-incrimination. Miranda also protects against the use at trial of unreliable statements, hence, unlike Mapp, relates to the correct ascertainment of guilt. 335 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, since most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions. 336 In any event, the Court has established several lines of decisions interpreting Miranda. First, persons who are questioned while they are in custody must be given the Miranda warnings. Miranda applies to ‘‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’’ 337 Clearly, a suspect detained in jail is in custody, even if the detention is for some offense other than the one about which he is questioned. 338 If he is placed under arrest, even if he is in his own home, the questioning is custodial. 339 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1425 340 Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he was allowed to leave at end of interview, even though he was named by victim as culprit, questioning took place behind closed doors, and he was falsely informed his fingerprints had been found at scene of crime). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is not custodial situation). 341 Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents’ interview with taxpayer in private residence was not a custodial interrogation, although inquiry had ‘‘focused’’ on him). 342 Cf. United States v. Mendenhall, 446 U.S. 544 (1980); Reid v. Georgia, 448 U.S. 438 (1980); Brown v. Texas, 443 U.S. 47 (1979); Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of a motorist stopped for traffic violation is not custodial interrogation until his ‘‘freedom of action is curtailed to a ‘degree associated with formal arrest’’’). 343 Stansbury v. California, 511 U.S. 318 (1994). 344 446 U.S. 291 (1980). A remarkably similar factual situation was presented in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel purposes. The Innis Court indicated that the definitions are not the same for each Amendment. 446 U.S. at 300 n.4. But the fact that a suspect may be present in a police station does not, in the absence of indicia that he was in custody, mean that the questioning is custodial, 340 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial. 341 As with investigative stops under the Fourth Amendment, there is a wide variety of police-citizen contacts, and the Supreme Court has not explored at any length the application of Miranda to questioning on the street and elsewhere in situations in which the police have not asserted authority sufficient to place the citizen in custody. 342 Whether a person is ‘‘in custody’’ is an objective test assessed in terms of how a reasonable person in the suspect’s shoes would perceive his or her freedom to leave; a police officer’s subjective and undisclosed view that a person being interrogated is a suspect is not relevant for Miranda purposes. 343 Second, persons who are interrogated while they are in custody must be given the Miranda warnings. It is not necessary under Miranda that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis. 344 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being transported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00065 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1426 AMENDMENT 5—RIGHTS OF PERSONS 345 Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). 346 446 U.S. at 302–04. Justices Marshall, Brennan, and Stevens dissented, id. at 305, 307. Similarly, the Court found no functional equivalent of interrogation when police allowed a suspect’s wife to talk to him in the presence of a police officer who openly tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987). See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes Miranda inapplicable to jail cell conversation between suspect and police undercover agent). 347 451 U.S. 454 (1981). 348 451 U.S. at 467. hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon’s hiding place. Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said: ‘‘We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to 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. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.’’ 345 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible. 346 In Estelle v. Smith, 347 the Court held that a court-ordered jailhouse interview with the defendant by a psychiatrist seeking to determine his competency to stand trial, when the defense had raised no issue of insanity or incompetency, constituted interrogation for Miranda purposes; the psychiatrist’s conclusions about the defendant’s dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Miranda warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was ‘‘immaterial,’’ the Court concluded, since the psychiatrist’s testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution. 348 Other instances of questioning in less formal contexts in which the issues of custody and interroga- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00066 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1427 349 Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73. 350 384 U.S. at 444. 351 384 U.S. at 469. 352 California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether the warnings ‘‘reasonably conveyed’’ a suspect’s rights, the Court adding that reviewing courts ‘‘need not examine Miranda warnings as if construing a will or defining the terms of an easement.’’ Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be appointed ‘‘if and when you go to court’’). 353 Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). 354 451 U.S. 477 (1981). tion intertwine, e.g., in on-the-street encounters, await explication by the Court. Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attorney. 349 The Court recognized that ‘‘other fully effective means’’ could be devised to convey the right to remain silent, 350 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner. 351 But it is not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used ‘‘fully conveyed’’ to a defendant his rights. 352 Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect ‘‘indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’’ Further, if the suspect indicates he wishes the assistance of counsel before interrogation, the questioning must cease until he has counsel. 353 At least with respect to counsel, the Court has created practically a per se rule barring the police from continuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. Thus, in Edwards v. Arizona, 354 the Court ruled that Miranda had been violated when police reinitiated questioning after the suspect had requested counsel. Questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, ‘‘when an accused has invoked his right to VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00067 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1428 AMENDMENT 5—RIGHTS OF PERSONS 355 451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pending on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985). 356 Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991). 357 Fare v. Michael C., 442 U.S. 707 (1979) (juvenile requested to see his parole officer, rather than counsel). Also, waivers signed by the accused following Miranda warnings are not vitiated by police having kept from the accused information that an attorney had been retained for him by a relative. Moran v. Burbine, 475 U.S. 412 (1986). 358 Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police ‘‘scrupulously honored’’ suspect’s request, admission valid). have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’’ 355 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested. 356 However, the suspect must specifically ask for counsel; if he requests the assistance of someone else he th

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