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Miranda’s limited powers: Blurts, twilight zones, searches, pre-custody, civilian questioning, delays, and cross-exam

Fairfax DWI lawyer/criminal lawyer on the limits of Miranda protections

Oct 12, 2016 Miranda’s limited powers: Blurts, twilight zones, searches, pre-custody, civilian questioning, delays, and cross-exam

“I was never read my Miranda rights,” many of my clients insist. That claim is the beginning, rather than the end, of the inquiry, so I often reply: “Did the police ever question you? If they did, at what part in your police interaction were you questioned?”

The U.S. Supreme Court’s birthing of Miranda v. Arizona384 U.S. 436 (1966)  — which requires police to advise arrestees of their Fifth Amendment right to remain silent — was a 1966 5-4 ruling resulting from a court personnel lineup that would not have been possible only three years later when Warren Burger replaced Earl Warren as chief justice. Joining Miranda‘s author Chief Justice Warren were Justices Black (more liberal than successor Lewis Powell, despite Black’s lawyer-period membership in the Ku Klux Klan), Douglas, Brennan (much more liberal than successor David Souter), and Fortas. The first four justices, at the very least, were the core of the Warren court’s golden age of protecting many Constitutional rights of criminal defendants before the Court’s ongoing rightward shift right through today.

Here is a summary rundown of the limits to Miranda, after emphasizing some of Miranda‘s ongoing benefits:

BENEFITS OF MIRANDA

– Unless the defendant testifies contrary to his or her statements to the police, non-Mirandized, non-booking answers by arrestees to police questioning are inadmissible in criminal trials.

– Police cannot remove the taint of non-Mirandized questioning of arrestees merely by later Mirandizing them.

– Police embellishments on Miranda warnings are at the police officer’s own risk.

– Even before police are required to state Miranda warnings, the suspect can stay silent and — at least by clearly asserting his or her right to remain silent — not have the suspect’s silence used against the arrestee.

LIMITS TO MIRANDA

– Miranda does not apply to such standard post-arrest booking questions as asking the arrestee’s full name, address, and work address.

– Miranda does not require police to advise that the arrestee’s silence cannot be held against the arrestee, which leads many arrestees to talk with police in the hopes that doing so will be less damaging than a jury’s knowing the arrestee did not answer post-Miranda police questioning.

– The police have no obligation to advise arrestees of their right to remain silent before the police begin non-booking questioning of the arrestee.

– Miranda does not apply to suspects who are not in police custody. Therefore, Miranda does not apply to covert police phone calls to suspects nor to non-custodial police questioning. Consequently, police often will delay placing a suspect under arrest, in the hope of getting answers to questions without first needing to Mirandize the suspect.

– The Supreme Court — supported by Virginia appellate caselaw — creates the legal fiction of not immediately requiring Miranda warnings during twilight zones of traffic stop investigations, even when the police officer is investigating for suspicion of DWI or drug possession, even though the suspect is not free ot leave. Berkemer v. McCarty468 U.S. 420 (1984); Harris v. Virginia, 27 Va.App. 554 (1998). 

– Police may use Miranda-violative voluntary information to obtain physical evidence that the prosecution may use at trial. U.S. v. Patane542 U.S. 630 (2004) (a 5-4 court opinion). 

– Miranda does not apply to questioning of suspects by private parties not acting as agents for the police. This private questioning scenario is common when retail store security personnel seize alleged shoplifters against their will and question them in the store’s back office while awaiting the police.

– Criminal defendants who testify at trial can be cross-examined on any conflicting non-coerced non-Mirandized statements by them to the police. Harris v. New York, 401 U.S. 222 (1971).

Miranda does not require police to audiotape nor videotape their interrogations of defendants, making it the police word against the defendant’s word about whether, when and how Miranda rights were given to the suspect.

With the police, silence is golden. Police often will claim to arrestees a short time window for a suspect to provide a confession that is of any defendant-beneficial use. However, a suspect rarely if ever helps himself or herself, on balance, to talk with the police without first consulting with a qualified lawyer nor without the presence of a lawyer during any questioning.

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