Miranda was the landmark United States Supreme court case [384 U.S. 436 (1966)] that held in a 5-4 decision that criminals must be given a warning that talking to the police could result in them giving evidence that would be used against them in court. We all know the Miranda warning by heart from all the cop shows on TV.
Since 1966 the Supreme Court has refused to overturn Miranda even though it has been highly criticized as being unnecessary and a hinderance to law enforcement’s task of getting solid evidence to convict criminals and protect the public from criminal predation. The court has narrowed its focus quite a bit and approved various techniques for law enforcement to get around the Miranda warning requirement.
The original Supreme Court opinion only requires a Miranda warning before custodial interrogation. That is, if the suspect is either not in custody (i.e., free to leave) or the suspect speaks voluntarily on his own and not in response to an officer’s questioning, Miranda doesn’t apply. So if an officer arrests a suspect and puts him in handcuffs and sits him in the back of the police car without a Miranda warning, what will happen if the suspect confesses on the way to the police station? He has not been Mirandized, and he is in custody. But so long as the officer does not begin interrogation any incriminating statement he makes will be admissible.
Also, if the police ask a suspect to voluntarily come to the station house for questioning, and tell him he is free to leave at any time, and if at that point he really is free to leave, but then confesses to the a crime during the interrogation, his confession will be admissible because he was not “in custody.” This is so even if at the conclusion of the interrogation the police arrest him for the crime to which he has just confessed. Oregon v. Mathiason, 429 U.S. 492 (1977); Stansbury v. California, 511 U.S. 318 (1994).
Putting an undercover cop disguised as a fellow inmate in a cell with a suspect to question the suspect about the crime he has been arrested for (or any other crime) will also result in all of the suspect’s statements being admissible without any Miranda warning. Illinois v. Perkins, 496 U.S. 292 (1990).
Another trick is to arrest a suspect on a less serious charge and if he then waives his Miranda rights he may be questioned on any other crime of which he may be suspected. So if there is probable cause to arrest the suspect on a minor firearms charge but he is also suspected, but not yet arrested, for a murder of which he is suspected the police can also question him about the murder and if he gives any incriminating information it will be admissible. Colorado v. Spring, 497 U.S. 564 (1987).
Finally, implied waivers of Miranda rights have been approved by the Court. If a suspect has been fully Mirandized and acknowledges that he understands his rights, cops don’t have to ask him if he want to waive those rights. They can just ask him any question they want and if he answers, he has impliedly waived. Berghuis v. Thompkins, 560 U.S. 370 (2010). This is a pretty important concept that all cops, at least all detectives, should know. Never ask a suspect if he wants to waive his Miranda rights after he had been fully Mirandized. He might say no, and there is no need to risk it.
What if a detective lies to a suspect that has said he doesn’t want to waive Miranda by telling him that his co-conspirator has waived and is blaming everything on him, when in fact the co-conspirator has not waived? If the suspect confesses he will have been tricked not only into confessing, but also into waiving his Miranda rights. Will the suspect’s subsequent confession be admissible? Under a “totality of the circumstances” analysis, it may very well be. Frazier v. Cupp, 394 U.S. 731 (1969).
Instead of carving out a bunch of ways for the police to get around Miranda, the Supreme Court should just admit that it was a bad decision and overrule it. The original concern of the court was that sophisticated crooks had an advantage in their dealings with police that the less worldly wise crooks didn’t have. This was perceived to be unfair. The Miranda warning was supposed to level the playing field for crooks. But maybe it’s unfair that cops more educated in Miranda court rulings have an advantage over other cops in obtaining admissible evidence against suspects. Perhaps this playing field needs to be leveled.
The rules stated herein apply only under the U.S. Constitution. State courts are free to apply more stringent rules under their own state constitution or state statutes. They just can’t base those rulings on the U.S. Constitution.