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Self-Incrimination: Miranda & the 5th Amendment (podcast transcript)

Miller: Hi. I’m Tim Miller. With me today is Jenna Solari. Jenna and I are both instructors at the Legal Division at the Federal Law Enforcement Training Center here in Glynco, Georgia. The Federal Law Enforcement Training Center here in Glynco probably trains about 80 different law enforcement agencies. Jenna and I have been here for a couple of years instructing the students and are just having a great time. Let me just tell you a little about myself. I hail from the Marine Corps. I was on active duty for about 20 years. I prosecuted cases, defended cases; I was a staff judge advocate, or legal counsel for large military organizations and also a military judge. Jenna, tell us a little bit about yourself.

Solari: Sure. I also started off as a judge advocate, but I was in the Navy for about four years. I was a military prosecutor stationed at the Naval Air Station in Jacksonville, Florida, which is just down the road from us about an hour and a half. I left active duty to become a civilian special agent with the Naval Criminal Investigative Service and spent some time as a special agent in the Washington, DC field office. And, I’ve been here at the FLETC in the Legal Division for about a year and a half now.

Miller: Let me tell you what we’re going to do. We’re going to take you through a series of PodCasts addressing Fourth, Fifth, and Sixth Amendment issues that often arise when law enforcement officers want to question suspects in a criminal case. Folks, we’re going to talk about interrogating suspects. In this PodCast, we’ll talk about the Fifth Amendment privilege against self-incrimination and that famous Supreme Court case, Miranda v. Arizona. Jenna, how does the Fifth Amendment to our Constitution address police interrogations?

Solari: Well Tim, part of the Fifth Amendment says that “no person shall be compelled in any criminal case to be a witness against himself.” Now, that means the government can’t force people to provide certain kinds of information that might be used against them in a criminal trial.

Miller: Now, you said “certain kinds of information.” Are there some kinds of information the government can force people to provide?

Solari: Yes. If officers have an appropriate legal document like a grand jury subpoena, a court order, or a search warrant, they can compel suspects to provide things like fingerprints, handwriting samples, blood samples, hair samples, things like that. What they can’t force the suspect to provide, though, even with a court document, is information we call testimonial or communicative evidence.

Miller: Explain to the audience this difference between physical evidence, like blood samples, and the testimonial evidence that you’re talking about.

Solari: Alright. Testimonial evidence is something that requires a thought process on the part of the suspect. For instance, I ask the suspect a question, he processes it in his head for a minute, and then he has to produce some kind of meaningful response.

Miller: I can see how that’s different from those other types of physical evidence that you talked about. It doesn’t require any thought at all to have blood drawn or to have fingerprints taken. And, it doesn’t require a thought process for a robbery suspect to even provide a voice exemplar, I guess. Now for example, a robbery suspect might be compelled to say, “stick-em up” into the microphone. Do you agree with that?

Solari: Exactly. That’s right. So the Fifth Amendment allows suspects to invoke the privilege against self-incrimination only when the government’s asking for information that requires the suspect to reveal what he knows or what he’s thinking.

Miller: Well, does the Fifth Amendment say whether law enforcement has to do anything to put a suspect on notice of that right against self-incrimination?

Solari: The Fifth Amendment itself doesn’t, but the Supreme Court has required it. In the case of Miranda v. Arizona, the case you mentioned, the Court held that in certain circumstances, police have to tell the suspect about that right against self-incrimination.

Miller: And what circumstances would those be?

Solari: Whenever known law enforcement officers conduct a custodial interrogation. There’s a simple formula we use here to teach that principle: it’s Cops + Custody + Interrogation = Miranda. Whenever those three ingredients, Cops, Custody and Interrogation, are all present, the suspect’s entitled to be put on notice of his Fifth Amendment privilege against self-incrimination.

Miller: Okay, let me put this in my head too. Cops + Custody + Interrogation = Miranda. Now, that sounds easy to remember. Let’s see though if we can break it down. Miranda only applies to cops? Is that what you’re saying?

Solari: That’s right. People like parents, spouses, private investigators; they’re not bound by Miranda. The whole reason the Supreme Court came up with the warning requirement was to combat the police dominated atmosphere of a custodial interrogation. Police have the home field advantage during a custodial interview, so a lot of suspects in that situation might feel overwhelmed. They might feel like they can’t refuse to answer questions by the police once they’re in custody. So to balance out that coercive atmosphere, police have to let the suspect know that he has that right against self-incrimination.

Miller: But what if the person asking the questions is a confidential informant or maybe an undercover officer? It doesn’t seem like the same rationale would apply.

Solari: You’re exactly right. Miranda only applies to known cops, since suspects don’t feel compelled to talk to people like confidential informants and undercover agents. There’s just no police dominated atmosphere there.

Miller: So it’s the cop that creates the police dominated atmosphere along with those other two factors that you were talking about.

Solari: That’s right.

Miller: So Miranda applies when we have Cops + Custody and questions, or Interrogation. And we know that “Cops” means someone the suspect knows is a police officer. It doesn’t apply to private parties, confidential informants, or undercover officers. Now what about this thing called custody? Is a suspect in custody any time he doesn’t feel free to leave?

Solari: That’s a great question, and it’s really important to understand for purposes of Miranda. Now, there are different types of seizures under the Fourth Amendment, but custody, as we’re using the term, means an arrest or the functional equivalent of an arrest. That’s important to remember because until that happens -- an arrest or its functional equivalent -- Miranda just doesn’t apply.

Miller: So a seizure that amounts to something less than an arrest, you know like a Terry stop or a traffic stop, that doesn’t require the police officer to Mirandize the suspect, or give him Miranda warnings?

Solari: That’s right, as long as the officer hasn’t elevated it to something that an ordinary reasonable person would perceive as a custodial arrest.

Miller: Well, give us an example of the functional equivalent of an arrest.

Solari: Alright. The Court actually addressed this in a case called Orozco v. Texas. It’s a 1969 case. The defendant in that case was a murder suspect and four police officers went to his boarding house at 4:00 in the morning, went up to his bedroom, woke him up, notified him that he was under arrest and they started to question him about the murder. He made some incriminating statements that were used against him at trial and then of course challenged the admissibility of those statements, claiming that he was interrogated by cops in a custodial situation without the benefit of being read those Miranda rights. He was never put on notice of his right against self-incrimination. Of course the State argued that this wasn’t an actual custodial arrest: he hadn’t been handcuffed, he hadn’t been taken away. But, under the circumstances, said the Court, this was the functional equivalent of an arrest. 4:00 in the morning, four officers in your bedroom interrogating you about a murder. They decided that that defendant, under those circumstances, was entitled to be put on notice of that right against self-incrimination by being read his Miranda warnings.

Miller: Yeah, I can see how that would make somebody feel like they’re in custody rather than being just temporarily detained.

Solari: Right, I mean it’s not likely under those circumstances that you’re going to talk your way out of it, or be allowed to go back to sleep when it’s over. It’s pretty clear to that suspect he’s going down to the station house at the end of that conversation.

Miller: Hey listen now, I can imagine a scenario where an officer is casually talking to a suspect, you know, during a voluntary encounter. For example, a police officer might say, “Hey sir, can I have a word with you for a minute?” I can also imagine a situation where a cop might actually seize someone during a Terry stop. You know he might say, “Hey mister, get over here. Come here, I want to talk with you for a minute.” In either of those situations, the officer might, you know, in his own head, have a plan to arrest this guy, have a plan to arrest the suspect when they’re done talking. Now the officer might, well heck, he might have an arrest warrant for him in the back of his pocket to arrest these guys. Now does the officer have to give Miranda warnings in those situations?

Solari: No, Tim, he doesn’t. As long as the officer doesn’t let the suspect know that he’s going to be arrested at the end of that conversation. Because importantly, the officer’s subjective intent -- the things that are going on in the officer’s mind only -- the subjective intent doesn’t matter. The only question is whether a reasonable person in the suspect’s shoes would believe he’s under arrest based on the objective facts. If a reasonable person would see the encounter as voluntary as you described it, “Hey sir, can I ask you a few questions?” or as a temporary detention, a Terry stop, then an arrest has not taken place and Miranda warnings aren’t required.

Miller: So, it’s what a reasonable person in the shoes of the suspect feels, right?

Solari: Exactly.

Miller: Okay, so we’ve talked about Cops, Miranda only applies to known cops. We’ve also talked about Custody, which is an arrest or the functional equivalent of an arrest. Now the last part of this equation is Interrogation. How do courts define Interrogation?

Solari: Interrogation, for purposes of Miranda, is anything likely to elicit an incriminating response from the suspect. Of course that includes express questioning like, “Did you do it?” “Where were you last night?” “When was the last time you saw the victim?” -- things like that. Importantly it can also include statements, though, like telling the suspect a story that’s meant to provoke a response, or actions by the police, like bringing a suspect into an interrogation room full of evidence and pictures of the victim; again, obviously designed to provoke some sort of response on the part of the suspect.

Miller: Throwing the bloody photograph in front of a murder suspect might be interrogation too, I guess.

Solari: Right.

Miller: So Interrogation is anything done by the officer that’s reasonably likely to produce an incriminating response. Now what if the suspect’s name or some other personal identifier would be incriminating? Do officers have to read Miranda just to ask those kinds of questions? You know, “What’s your name?”

Solari: No. No, they don’t. There is an exception to Miranda for what we call “routine booking questions” like the ones you’ve described. There are a few other exceptions to Miranda too, which we will certainly address in a separate PodCast.

Miller: Okay. So we know the general rule; Miranda warnings have to be given any time we have Cops + Custody + Interrogation. Now giving the warnings, giving the warnings kind of balances out the police dominated atmosphere and, well, levels the playing field. Now that we know when Miranda warnings have to be given, tell us what exactly the Miranda warnings are.

Solari: Okay, no problem. The Supreme Court did this for us right in its Miranda opinion, and most officers have wallet sized cards with the exact language printed on there. Before a custodial interview takes place, the suspect must first be told:

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 consult with a lawyer before questioning and to have a lawyer present during questioning.

If you cannot afford a lawyer, one will be appointed to represent you free of charge prior to any questioning.

Miller: So, that’s it. It’s enough, just then to advise the suspect of those rights, that’s it?

Solari: No Tim, that’s the first step, certainly, when the rights are required, Cops, Custody, Interrogation, the officer has to read those, but then before conducting the actual interrogation itself, the suspect has to provide a valid waiver of those Miranda rights.

Miller: Okay. We’ll cover waivers of Miranda rights in our next PodCast. For right now, let’s just summarize what we’ve discussed in this session. The Fifth Amendment says the government can’t force someone to provide testimonial evidence against himself in a criminal case. Because custodial interrogations by police are inherently coercive, the Supreme Court requires officers in those circumstances to tell the suspect about that Fifth Amendment right. We do that by reading the suspect the Miranda warning you just listed. Those warnings are only required, though, when we have the Cops + Custody + Interrogation, got to have all three. Cops, means known cops, not private parties, confidential informants, or undercover officers. The undercover officers doesn’t create again that police dominated atmosphere. Custody means an arrest or its functional equivalent, not just a routine traffic stop or a Terry stop. Those are temporary stops. And Interrogation means words or actions that are designed to provoke an incriminating response from the suspect.

Solari: That exactly right. That’s a great summary.

Miller: Great. For those who’d like to hear a little bit more about our legal PodCasts, you can find them at, and get ready to copy, www.fletc.gov/training/programs/legal-division/podcasts. That is it.

Solari: Thank you, Tim.