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Criminal Law Newsletter

Custody and Interrogation for Purposes of Miranda

The Fifth Amendment of the U.S. Constitution provides that no persons shall be compelled to be a witness against himself…” This guarantee also applies to the states and has been interpreted to mean that individuals have a right to be free from giving self-incriminating testimony, including statements to police while in custody. The right to be free from self-incrimination forms the basis for other liberties such as the Miranda rights to remain silent and to an attorney. In order to be entitled to be read their Miranda rights, the individual must be in custody of and about to be interrogated by the police. However, even where Miranda rights are required, several exceptions exist rendering Miranda violations by police inconsequential.


“Custody” is a limitation on an individual’s freedom of action by virtue of a lawful process or authority. With regard to criminal procedure, whether a person has officially been placed in police custody is determined on an objective test basis. The test generally measures whether a “reasonable person” would believe that officer in some way suggested that they were not free to leave and custody is therefore not limited to formal arrests. The determination of what does and does not constitute custody can be subtle.

It is more likely that an individual is in custody where:

  • There is a traditional arrest and constraint (handcuffs, closed room, etc.)
  • Detention is long and involuntary
  • An individual is placed in hostile and unfamiliar surroundings

It is less likely that an individual is in custody where:

  • There is a routine traffic stop
  • Detention is brief and voluntary (as in a brief field interview)
  • The police call an individual on the telephone (since the individual is free to hang up)


“Interrogation” is defined as those words or actions by police which are likely to elicit an incriminating response, including a confession. Police are required to read an individual their rights (i.e., a “Miranda warning”) before they may interrogate or question a detained individual. However, a line of questioning by the police is only an interrogation if the individual is determined to be in “custody.” Interrogation typically involves persuasion or pressure, for example by attempting to convince an individual that in would be in their best interest to confess to a crime or to provide certain details.

Miranda Rights

In Miranda v. Arizona, the U.S. Supreme Court held that all individuals under police custody must be advised of their constitutional rights in order to ensure that they understand their Fifth Amendment right to be free from self-incrimination. Collectively, the rights of which individuals must be advised are their “Miranda rights.” Generally, police must inform suspects that they have a right to remain silent and that they have a right to an attorney, whether or not they can afford one. In addition, the police must advise that any statements made following the Miranda warning can be used as evidence against the individual in court.

A person in custody may decide either to exercise or waive their rights. In general, if the individual asserts the right to silence or an attorney, the police must honor the request and cease the interrogation. In contrast, if the individual elects to waive their rights and agree to talk to the police, the interrogation may continue. However, a waiver of rights is valid only if it is made knowingly, voluntarily, and intelligently.

Consequences of the Failure to Give a Miranda Warning

The Miranda Rule is one of exclusion that was designed to strengthen the rights of suspects in police custody. The purpose is to exclude a person’s incriminating statements from their trial where they did not fully understand all of their constitutional rights in making them. In other words, if police procedures violate Miranda, by failing to advise a suspect of their rights or otherwise, their statements cannot be used against them in court. In practice, however, there are several exceptions to the Miranda requirement.

Exceptions to Miranda

Since the 1966 Miranda decision, the U.S. Supreme Court has carved out several exceptions to the Miranda exclusionary rule. Some of these exceptions include:

  • Impeachment: Prosecution may introduce a Miranda-excluded statement of a defendant in court on cross-examination if the defendant contradicts that statement, to show that the defendant is lying.
  • Evidence derived from Miranda violation: Where a suspect asserts an alibi in response to police interrogation without being Mirandized, the police may use incriminating information obtained from the alibi against the suspect.
  • Delayed warnings: If a suspect confesses without Miranda, but is given a Miranda warning later at the station and confesses again, the second confession can be used against the suspect.
  • Undercover police interrogations: There is no Miranda violation if undercover police or informants are used to obtain incriminating statements from a suspect.
  • Routine booking questions: Miranda warning is unnecessary before booking questions (e.g., name, address, height, weight) since they are not asked for incriminatory purposes.
  • Public safety exception: Miranda is unnecessary before asking a captured suspect where a dangerous weapon is hidden where there is an immediate danger to the public.
  • Equivocal requests for counsel: Assertions of the Miranda right to counsel must be direct and unambiguous (“maybe I should talk to a lawyer” is insufficient), otherwise, the interrogation may proceed.

As a result, a violation of the Miranda Rule does not always guarantee that the individual’s statement will be excluded. The Supreme Court has emphasized that Miranda warnings are not constitutionally guaranteed, but rather exist as an aid in the protection of a person’s Fifth Amendment rights.

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