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Fifth Amendment & Miranda (MP3)


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Miller: We’re back. I’m here with my partner Jenna Solari. We’re wading our way through the law of self-incrimination as it pertains to military suspects. Let me tell our listeners where we are right now. The law surrounding self-incrimination focuses on a unique type of evidence, a suspect’s thought process about a crime. A person suspected of an offense may communicate about that crime verbally, in writing, or even with a gesture. The law prohibits law enforcement officers, of course, from compelling suspects to answer questions when the answers might be used against them in a criminal trial. Article 31b warnings, which we discussed in our last PodCast, are an attempt to dispel the inherent coercion a suspect might feel to answer questions during interrogations by military superiors. Article 31 applies to situations where, because of rank, duty, or other relationship, there might be a subtle pressure on a military suspect to respond to interrogations. When an NCIS or OSI agent suspects a military member of an offense, that agent is generally required to advise the suspect of his Article 31b rights to remain silent before the agent can start asking questions. NCIS and OSI agents don’t deal with military members exclusively, though. They often find themselves in a position to interrogate civilian suspects. Civilian suspects typically aren’t covered by Article 31, but they’re still protected from self, from compelled self-incrimination. Well now, let’s talk about where that protection comes from – Jenna.

Solari: Sure Tim. Part of the Fifth Amendment states 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, whether they’re military or civilian, to provide certain kinds of information that might be used against them in a criminal trial.

Miller: Now you said,“Certain kinds of information.” Now, that sounds like the Fifth Amendment focuses on that same type of evidence as Article 31b.

Solari: That’s right. Like Article 31b, the focus is on what we call communicative evidence. If officers have an appropriate legal document like a grand jury subpoena, court order, or search warrant, they can compel suspects to provide things like fingerprints, handwriting samples, blood samples, hair samples, and things like that. Now, what they can’t force the suspect to provide, even with a court document, is information we call“testimonial” or “communicative” evidence.

Miller: Okay, now let’s review the difference between physical evidence, like blood samples, and testimonial evidence.

Solari: Well, remember that 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 has to produce some sort of meaningful response.

Miller: Now, I can see how that’s different from those other types of evidence, it doesn’t require any thought at all to have blood drawn or to have fingerprints taken. It doesn’t require a thought process for a robbery suspect to provide a voice exemplar, either. You know, for example, a robbery suspect might be compelled to say, “Stick-em Up” in a tape recorder and of course that tape recorder can be played back to the a, to the um robbery victim.

Solari: Exactly. 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 requires it. In the case of Miranda v. Arizona, the Court held that in certain circumstances, police have to tell the suspect about his right against self-incrimination.

Miller: Okay then, what circumstances would those be?

Solari: Whenever a known law enforcement officer conducts a custodial interrogation. There’s a simple formula we teach here at the FLETC in our self-incrimination classes: Cops + Custody + Interrogation = Miranda. Cops, Custody, Interrogation = Miranda. Whenever those three ingredients are all present, the suspect’s entitled to be put on notice of his Fifth Amendment privilege against self-incrimination.

Miller: Okay, Cops + Custody + Interrogation. That sounds pretty easy, even for me. Let’s break it down, though. Miranda only applies to law enforcement agents?

Solari: That’s right. People like parents, spouses, and private investigators aren’t 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 probably feel overwhelmed. They might feel like they can’t refuse to answer questions once they’re in police custody. To balance out that coercive atmosphere, the police have to let the suspect know that he has a right against self-incrimination. I mean, stop for a minute and remember what Article 31b is intended to protect.

Miller: Okay, it’s the inherent compulsion to respond to military authority about a suspected offense, right?

Solari: Right. Miranda, on the other hand, but still similar guards against the inherent compulsion anyone might feel to respond to custodial interrogation by police. So, while Article 31b only applies to military suspects, Miranda applies to anyone, civilian or military.

Miller: But what if the person asking the questions is a confidential informant or an undercover officer? Now, I recall that Article 31b warnings would not be required in the case of an undercover question of a military suspect. It doesn’t seem like Miranda would apply, either.

Solari: You’re exactly right. Miranda only applies to known cops, since suspects don’t feel compelled to talk to people like confidential informants or undercover agents. They can tell them to just buzz off. So there’s no police dominated atmosphere there.

Miller: Okay, so Miranda applies when we have Cops + Questioning + Custody. 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 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 for purposes of Miranda. Although there are different types of seizures under the Fourth Amendment, custody means an arrest or the functional equivalent of an arrest. Until that happens, Mirandadoesn’t apply.

Miller: So a seizure that amounts to something, you know, less than an arrest, like a Terry Stop or a Terry traffic stop. That wouldn’t require Miranda warnings.

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

Miller: Okay and what about the functional equivalent of an arrest? Didn’t I hear you say that too?

Solari: Right, an arrest or its functional equivalent. The Supreme 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. Four police officers went to the boarding house were he was staying and about 4:00 in the morning, went up to his bedroom woke him up, told him that he was under arrest and started to question him about the murder. The suspect made some incriminating statements that were used against him at trial and then of course challenged the admissibility of those statements. And, his claim was that he was interrogated by known cops in a custodial situation, without the benefit of being read his Miranda rights. He was never put on notice of that right against self-incrimination. Of course, the State then argued that this wasn’t an actual custodial arrest because the suspect hadn’t been handcuffed and put in the car and driven 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 the defendant, under those circumstances, was entitled to be put on notice of that right against self-incrimination by being read his Miranda warnings.

Miller: You know, I can imagine a scenario where a police officer is casually talking to a suspect during a voluntary encounter. You know he might, the officer might say something like, “Hey sir or can I have a word with you for a minute?” I can imagine a situation where a cop might actually seize someone during a Terry stop. You know for example, “Mister. Come over here. Stop. I want to talk to you for a second.” In either of those situations, you know, the officer might plan to arrest the suspect when they’re done talking. You know, the officer might actually have an arrest warrant for the guy in his back pocket. Does the police officer have to give Mirandawarnings in those situations? In other words, does he have to give Mirandawarnings when he intends to arrest the suspect?

Solari: No, so long as the officer doesn’t let the suspect know he’s going to be arrested. The officer’s subjective intent, the thoughts in his head, don’t really matter. The only question when we’re trying to determine custody is whether a reasonable person in the suspect’s situation, in the suspect’s shoes, would believe that he’s under arrest. If a reasonable person would see the encounter as voluntary or as a temporary detention, an arrest hasn’t taken place and Mirandawarnings are not required.

Miller: Okay, so we’ve talked about Cops, Miranda only applies to known cops, or known law enforcement agents. We also talked about Custody, which is an arrest or the functional equivalent of an arrest. The last ingredient is in this equation is Interrogation. Now, how do the courts define interrogations?

Solari: Interrogation’s defined the same way for purposes of Mirandaand Article 31. Interrogation is anything purposefully done by an agent or an officer that’s reasonably likely to elicit an incriminating response from the suspect. Now that obviously includes express questioning, like “did you do it?” “where were you last night?” “when was the last time you saw the victim?” and things like that. It can also include statements, though, like telling the suspect a story meaning to provoke a response, or actions, like um showing the suspect a room full of evidence or a bunch of pictures of the victim.

Miller: So, interrogation is anything done by the officer that’s reasonably likely to produce an incriminating response. What if the suspect’s name or some other personal identifier would be incriminating though? Do officers have to read Miranda just to ask those kinds of questions, his name or what not?

Solari: No they don’t have to read Miranda for that. There is an exception to Miranda for what we call routine booking questions like the ones you just listed. There are a few other exceptions to Miranda too, and I think we’ve going to address those 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 warning, giving that the warning balances out the police dominated atmosphere and levels the playing field. Now that we know when Miranda warnings have to be given, tell us what exactly the Miranda warnings are.

Solari: Well that’s easy. The Supreme Court did that for us right in its opinion, and most officers out there 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 your lawyer present during questioning.

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

Miller: Miranda rights are different from Article 31b. I guess law enforcement officers have to know the Miranda, that the Miranda and Article 31 triggers in order to understand what set of rights have to be given.

Solari: That’s right. Now of course, we don’t even teach Article 31b rights to the civilian law enforcement agencies here at the Federal Law Enforcement Training Center, because Article 31 doesn’t apply to them. NCIS and OSI agents however, and CGIS agents should understand that Article 31 and Miranda have different triggering events. The triggering event for Miranda is custodial interrogation. The triggering event for Article 31 on the other hand is much different. It’s reasonable suspicion that a military suspect has committed an offense. There’s no requirement that the military suspect be in custody for Article 31b to apply.

Miller: What if a NCIS or OSI agent wants to conduct a custodial interrogation of a military suspect? Does the agent have to read the suspect both the Miranda and the Article 31b rights?

Solari: No. The Article 31b rights advisement forms for both OSI and NCIS include all of the Mirandarights, so reading the Article 31b form should be sufficient.

Miller: So, is it enough, then, just to advise the suspect of his or her Miranda or Article 31b rights? Can I just roll right into an interrogation after telling him his rights?

Solari: No, not so fast. Before you conduct the interrogation, you not only have to read the rights, but the suspect has to provide a valid wavier of those rights.

Miller: Okay. We’ll cover waivers of Miranda and Article 31b in another PodCast. For right now, let’s kind of summarize what we’ve discussed in this session. The Fifth Amendment says the government can’t force someone to provide testimonial evidence against him 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 the Fifth Amendment right. We do that by reading the suspect the Mirandawarnings that you just listed. Those warnings are only required, though, when we have the Cops + Custody + Interrogation. Cops means known law enforcement officers, not private parties, confidential informants, or even undercover officers. Custody, custody means that an arrest or its functional equivalent, and not just a traffic stop or a Terry Stop. And interrogation, well interrogation means words or actions designed to provoke an incriminating response from the suspect.

Solari: That’s exactly right.

Miller: Great. Now, for those who’d like to hear more of our legal PodCasts, you can again find them at Thank you and we’ll see you later on.