Chapter 5. Interview and Interrogation

• Author: Ken Wallentine
• Pages: 105-132

105

CHAPTER 5

INTERVIEW AND INTERROGATION

The Fifth Amendment and

Miranda

Voluntariness of the confession

Custody

Interrogation

“Question first,

Miranda

second”

Form of warnings

What constitutes an effective waiver of

Miranda

rights

Voluntariness of waiver of

Miranda

rights

Equivocal answers and requests for counsel

Repeated attempts at interrogation

When warnings are not essential

Jailhouse informants

Miranda

for incarcerated persons suspected of new

crimes

Miranda

issues for probationers/parolees

Speaking with a formally charged and/or represented

suspect

Non-testimonial evidence

Exclusionary rule applied to

Miranda

violation

Use of statements taken without

Miranda

warnings

CHAPTER FIVE106

The Fifth Amendment and

Miranda

The case of

Miranda v. Arizona

brought a major shift to

American criminal procedure. Prior to the

Miranda

deci-

sion, the primary issue in the admissibility of confessions

was voluntariness.

Brown v. Mississippi

, 297 U.S. 278 (1936).

Involuntary statements, generally the result of some form of

coercion, were ruled inadmissible because of their inherent

unreliability and the notion that coercion violates due pro-

cess of law.

Rogers v. Richmond

, 365 U.S. 534 (1961). Shortly

before the

Miranda

decision, the Supreme Court ruled that

an accusatory investigative focus on a particular suspect

gave rise to the right to confer with an attorney before ques-

tioning.

Escobedo v. Illinois

, 378 U.S. 478 (1964).

The core ruling in the

Miranda

decision states that the

“prosecution may not use statements stemming from custo-

dial interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the privi-

lege against self-incrimination.”

Miranda v. Arizona

, 384

U.S. 436 (1966). Thus, the

Miranda

rule applies when there

is both custody and interrogation. The now-famous

Miranda

warning is not actually contained verbatim in the ruling; it

was developed to summarize the rights articulated in the

Court’s decision.

Several criminal procedure issues arise from

Miranda

:

Was the statement a product of

interrogation

? Was the inter-

rogation done by a

law enforcement officer

? Was the sus-

pect in

custody

? Were the

warnings

adequate? Was there

an explicit

waiver

of rights? Was the suspect

competent

to

make a waiver? Each of these issues is discussed in this

chapter.

Voluntariness of the confession

The

Miranda

decision is not the only legal doctrine affect-

ing law enforcement interrogation. The issue of voluntariness

is still important, although it would be a rare case in which

Miranda

rules were followed and a court still found a con-

fession to be involuntary. If the defendant challenges the

voluntariness of the confession, the prosecution has the ulti-

mate burden of showing voluntariness, separate from the

questions of whether a

Miranda

warning was given and a

waiver was obtained.

Arizona v. Fulminante

, 499 U.S. 279

(1991).

A confession is invalid if circumstances show that the

confession resulted from some form of coercion—even if