7. Custody and Interrogation
Miranda warnings must be given if two elements are present: custody and interrogation.
Custody:
Custody indicates arrest – the suspect is under arrest by the police. Thus, Miranda rights are applicable only to those who have been arrested and are in police custody. The Supreme Court held that to be in custody, one must either have been taken
into physical custody by the police or otherwise, deprived of his freedom in any significant way.
Custody does not include other pedestrian activities such as traffic stops,16 crime-scene questioning
17 or brief field interviews based on reasonable suspicion. The test for custody is an objective one. It is based on the reasonable person. Would a reasonable person believe that an officer
conveyed, by words or actions, that a suspect is not free to leave?
The following examples illustrate the narrow definition of the rule on custody:
Questioning at the police station: This is not automatically a custodial situation. It depends on whether the suspect was brought in handcuffed or accompanied officers voluntarily. It also depends upon whether questioning takes place in a
closed room across a desk or not. Some parts of police stations, like interrogation rooms, are examples of hostile surroundings, while other parts are not hostile at all.18
Questioning in a police vehicle: This is not automatically a custodial situation. If a suspect is locked in the back seat of a cruiser equipped with a screen, this is obviously a hostile surrounding. However, the matter of custody becomes
questionable when other types of vehicles are involved or the suspect is in the front seat of the police car.
Questioning at the crime scene: Generally, Miranda does not apply to crime-scene and onthe- scene questioning. Officers routinely ask “What happened” at traffic accidents without Miranda warnings. However, if the circumstances are such that
it can be reasonably inferred that police are probably going to arrest somebody, Miranda warning must be issued.
An example would be if somebody appeared intoxicated after a traffic accident where the reasonable belief that police wouldn't let this person drive home triggers a Miranda warning situation.
Questioning at the suspect’s home: For Miranda to be triggered, the words and actions of the police officer questioning a suspect at home must be hostile or intimidating. An example of intimidating action would be one where the police officer wakes
the suspect up very early in the morning for an interview. A non-intimidating action would be dropping by the suspect’s house at a less inconvenient time of day.
Interrogation
Interrogation is questioning that goes beyond the simple “What happened” and “What did you do, see, or hear?” to questions that imply a suspect’s involvement in crime. Questions about motive, alibi, ability or opportunity to do the crime are all
examples of interrogation, such as “Where were you on the night of October 13th?” Usually, this insinuating or judgmental tone is prefaced by rapport-building or treating the suspect like family.
19
Interrogation inherently involves persuasion or some degree of pressure. The ultimate goal of interrogation is to obtain a confession, or at least an admission (soft confession)..., anything that would implicate the suspect in criminal behavior.
It can safely be assumed nobody would voluntarily implicate themselves to police, but interrogation necessarily involves persuading or convincing a person that it would be in their best interests to do so. Interrogation is the art of changing
a person's mind so that they want to tell the police everything they did wrong. In the process they help convict themselves.20
The Supreme Court ruled, in Miranda, that interrogation refers to the process of questions propounded by police to person arrested or suspected to seek solution of crime. The Court held that such a person is entitled to be informed of his rights,
including right to have counsel present, and the consequences of his answers. If the police fail or neglect to give these warnings, the questions and answers are not admissible in evidence at the trial or hearing of the arrested person.21
Thus, spontaneous utterances or asking a suspect to write down in their own words what happened is the functional equivalent of interrogation. The functional equivalence rule covers any action, deception, or trickery designed to elicit an incriminating
response.
For example, two police officers talk out loud to themselves in front of a suspect with the intent of being overheard and eliciting a “Hey, wait a minute” response from the suspect, this is the functional equivalent of an interrogation. Asking
somebody to fill out the narrative section of a police form is also a functional equivalent. 22
Note Point
Legally, there are three levels of communication as follows:
1. spontaneous utterances;
2. express questioning (Would you like to make a phone call?);
3. interrogation. Lying to a suspect that an eyewitness has fingered them is a functional equivalent of express questioning, not interrogation, but if it is designed to elicit an incriminating response, it is interrogation.
Rules on interrogation23
The Functional Equivalence Rule:24 Silence, manipulation, “guilt trips” and any other tricks by interrogators designed to elicit a spontaneous incrimination constitute functional
equivalence of an interrogation.
The Deliberately-Eliciting-a-Response Standard25: High-tech listening, or bugging, devices that are unknown to the suspect do not deliberately elicit an incriminating response, and
therefore can be used without Miranda warnings.
The Massiah Doctrine:26 If an undercover officer is used, and the suspect doesn't know it's an undercover officer, Miranda does not apply. Also, if a previously Mirandized suspect
is let out on bail or held in lockup, an undercover operative can obtain incriminating testimony through infiltration or sharing a jail cell.
The Edwards Rule:27 If a suspect makes a clear, unambiguous request for counsel, police must cease questioning. Clear and unambiguous must be robust and unequivocal. However, if after
police cease questioning, the suspect himself re-initiates conversation, any exchanges or further communication with police and incriminating statements obtained thereafter, may be used at trial.
16 The U.S. Supreme Court characterizes such stops as generally "non-threatening" temporary detentions,
akin to generic stops. Terry v. Ohio. Berkemer, 468 U.S. at; Pennsylvania v. Bruder, 109 S. Ct. 205 (1988).
17 Crime scene questioning as to facts surrounding a crime, or similar general questioning of citizens
during the initial "fact-finding" process, do not constitute custody. Miranda is not required in such
situations. State v. Bohanan, 220 Kan. 121 (1976); State v. Brunner, 211 Kan. 596 (1973); State v.
Phippen, 207 Kan. 224 (1971); State v. Almond, 15 Kan. App.2d 585 (1991).
18 Miranda Law: A Guide to the privilege against self-incrimination. http://faculty.ncwc.edu/mstevens
19 Inbau, F., J. Reid, & J. Buckley (1986). Criminal Interrogation and Confessions. Baltimore: Williams & Wilkins.
20 Gudjonsson, G. (1992). The Psychology of Interrogations, Confessions and Testimony. NY: Wiley and Sons 21 Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
22 Helmholz, R. et al (1997). The Privilege Against Self-Incrimination. Chicago: Univ. of Chicago Press.
23 Leo, R. (1996a). Inside the Interrogation Room. Journal of Criminal Law and Criminology 86: 266-303.
24 “Functional equivalent,” in terms of interrogation, refers to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.” Rhode Island v. Innis, 446 U.S. 291 (1980). For example, if the police know the person in custody may be susceptible to certain forms of persuasion, any statements or actions designed to play upon such susceptibilities
may be deemed the functional equivalent of interrogation. http://www.lexisnexis.com/lawschool/study
25 http://faculty.ncwc.edu/mstevens/410/410lect19.htm
26 The Massiah doctrine, based on the Sixth Amendment right to counsel, excludes statements deliberately elicited from an accused in the absence of a lawyer or a waiver of the right. Massiah v. United States, 377 U.S. 201 (1964).
27 Edwards v. Arizona, 451 U.S 477 (1981). In this case, the Supreme Court held that once a defendant invokes his Fifth Amendment right to counsel, police must cease custodial interrogation. Interrogation may only resume once defendant's counsel
has been made available to him or the suspect himself initiates further communication, exchanges or conversations with the police. Statements obtained in violation of this rule are a violation of a defendant's Fifth Amendment rights.
