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Police interrogations

The questions that follow explore whether statements obtained by law enforcement officers violate federal law; that is, the due process clauses of the Fifth and Fourteenth Amendments, the Sixth Amendment right to counsel, the right to a speedy arraignment, and the Miranda rule. They further clarify the availability of illegally obtained statements for impeachment, and the application of the fruit of the poisonous tree doctrine.

Some states have provided greater protections for criminal suspects under their constitutions and statutes, but the emphasis here is on settled federal principles resolved by the United States Supreme Court (which set the baseline in state litigation as well).

The infographic on the right (click on the image to get a full page PDF) will give you an overview of how these issues relate, but you need to launch the Q&A to get detailed explanations and links to the applicable Supreme Court cases.

For a detailed look at these issues, see A Detective's Guide to Interrogation Law (2020).

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startvoluntary?

Voluntariness. Statements are "involuntary" if they were the product of coercion; that is, the suspect's will was overborne in the totality of the circumstances. See United States v. Dickerson, 530 U.S. 428 (2000).

Threats or promises (especially promises of immunity) may render a response involuntary, but this is not a per se rule; the test remains the totality of the circumstances. See Arizona v. Fulminate, 499 U.S. 279 (1991). Similarly, tricks or lies used by police do not, by themselves, make a confession involuntary; they are simply factors to be weighed in the totality of the circumstances. Frazier v. Cupp, 394 U.S. 731 (1969).

Applying that test, are the statements:

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startinvoluntarygovernment wrongdoing?

The admission of an involuntary confession violates the due process clauses of the Fifth and Fourteenth Amendments. State action (wrongdoing by a government actor) is an element of any due process claim. "Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law." Colorado v. Connelly, 479 U.S. 157, 164 (1986) (police did not know that the suspect was insane).

Arguably, a state constitutional or evidentiary claim may be made without state action, but case law on that would be sparse and local.

The confession was coerced:

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startinvoluntaryprivate citizen?

Ordinarily, the actions of a private person do not trigger due process or self-incrimination concerns. See Arizona v. Mauro, 481 U.S. 520 (1987). Consequently, as a matter of federal constitutional law, the statements obtained are admissible.

A fallback argument could be made in cases where there is strong evidence that the private party was acting as a government agent, but the Supreme Court has not spoken definitively. Evidentiary (involuntary statements are unreliable) and independent state constitutional grounds arguments may be available as well.

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Statements that are involuntary may not be used in the government's case-in-chief, or even for impeachment. Mincey v. Arizona, 437 U.S. 385, 398 (1978).

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startvoluntaryhas a lawyer?

Voluntary statements may nevertheless be inadmissible if obtained in violation of the right to counsel.

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startvoluntaryhas a lawyerdoes not matter

A law enforcement agent's freedom of action is not significantly impacted here. Merely hiring an attorney does not trigger any protections under the Sixth Amendment, even if the suspect is the focus of a government investigation. Hoffa v. United States, 385 U.S. 293 (1966).

Prosecutors may have ethical restraints that would prevent supervising such questioning. The parameters are set out in the version of ABA Model Code Disciplinary Rule 7-104(A)(1).

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startvoluntaryright to counselattached?

Whether or not the defendant is represented by counsel, the Sixth Amendment right to counsel may come into play if it has attached.

The right typically attaches with an:

  1. indictment, or
  2. initial appearance on a complaint or information if liberty is subject to restriction, even if prosecutors have not gotten involved

See Rothgery v. Gillespie County, 554 U.S. 191 (2008).

It does not attach to pre-charge questioning, even if the suspect has been arrested. United States v. Gouveia, 467 U.S. 180 (1980).

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start ... right to counselattachedoffense specific?

The Sixth Amendment right to counsel is "offense specific." It does not apply to other crimes, even those that are "factually related" to the charged crimes. See Texas v. Cobb, 532 U.S. 162 (2001) (indictment for burglary does not prevent questioning about murder of burglary victims).

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start ... right to counselattachedto the offensecritical stage?

In addition to attachment, a Sixth Amendment requires a critical stage. "Interrogation" after the Sixth Amendment right has attached is a criticalаstage.

The definition of interrogation under the Sixth Amendment is subtly different than the one used in the Fifth Amendment/Miranda context. Sixth Amendment interrogation occurs where police or cooperators (e.g., a cellmate or a wired accomplice) "deliberately and designedly set out to elicit information." Brewer v. Williams, 430 U.S. 387, 399 (1977).

The suspect's statements were:

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start ... right to counsel ... questioned by cooperator?

Questioning by cooperators does not implicate the Sixth Amendment if the police don't instruct them to get information from suspect. See Kuhlmann v. Wilson, 477 U.S. 436 (1986).

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start ... right to counsel ... attempt to obtain waiver?

It appears that the questioning implicates the Sixth Amendment. The right has "attached" (an indictment or initial appearance), and it is a "critical stage" (questioning by police or police agent).

Nevertheless, questioning may be proper if there is a waiver, which is measured under the same standards as those in Miranda cases. Patterson v. Illinois, 487 U.S. 285 (1988).

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startvoluntary ... federal custody?

Federal custody may trigger speedy arraignment obligations. Fed. R. Crim. P. 5(a); 18 U.S.C. за3501(c). It is unclear whether speedy arraignment protections may be triggered without a formal arrest (з 3501(c) says "arrest or detention"; Ruleа5 just says "arrest").

The suspect was:

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startvoluntary ... Miranda custody?

Custody (state or federal) may also trigger the requirement for Miranda warnings. A suspect is in Miranda custody if "the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Howes v. Fields, 565 U.S. 499, 509 (2012).

  • Questioning in the suspect's home is not usually custodial. Beckwith v. United States, 425 U.S. 341 (1976).
  • Questioning may be non-custodial even where the suspect is not technically free to leave. See Pennsylvania v. Bruder, 488 U.S. 9 (1988) (roadside traffic investigation); Minnesota v. Murphy, 465 U.S. 420 (1984) (probation office interview).
  • Questioning may be noncustodial at the station house, California v. Beheler, 463 U.S. 1121 (1983), or even in prison. Howes,аid.

The questioning was:

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startvoluntary ... federal custodydelayed arraignment?

Confessions are inadmissible in federal courts if they are obtained during an unreasonable delay of arraignment. See Fed. R. Crim. P. 5(a); 18 U.S.C. за3501(c).

Section 3501(c) provides a six-hour "safe harbor." For interrogations outside the six-hour window, the government must show reasonable delay. Delay for the purpose of interrogation is unreasonable delay. See Corley v. United States, 556 U.S. 303 (2009).

A defendants may waive the right to a speedy arraignment.

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The interrogation violates the defendant's right to a speedy arraignment, and is inadmissible in federal criminal prosecutions. It may be admissible in a state proceeding, however.

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startvoluntary ... Mirandainterrogation?

The Miranda rule comes into play where a suspect is subjected to custodial interrogation by law enforcement. Volunteered statements are not the product of interrogation. "Interrogation" in this context is either express questioning or its "functional equivalent" (words that the questioner should know are reasonably likely to elicit an incriminating response). Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980).

The suspect's statements were:

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start ... custodialinterrogationbooking or public safety?

Miranda rights are not required for routine booking in questions, Pennsylvania v. Muniz, 496 U.S. 582 (1990), or where "a situation posing a threat to the public safety outweighs the need for the prophylactic rule." New York v. Quarles, 467 U.S. 649 (1984).

The questions were:

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startvoluntary ... Miranda ... proper warnings?

Before any questioning, the suspect must be advised of these constitutional rights:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to talk to a lawyer and have him present with you while you are being questioned and while you are required to face witnesses
  • If you cannot afford to hire a lawyer, one will be appointed to represent you if you request one

The rights do not need to be word for word. Substance, not form, is the test. Florida v. Powell, 559 U.S. 50 (2010).

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start ... Miranda ... warningsinvocation?

If, during the colloquy, a suspect makes an ambiguous statement regarding the right to remain silent or right to counsel, it is good police practice to stop and clarify what the suspect means, but officers are not required to do so. Officers may proceed to interrogate the suspect without asking "clarifying questions." Davis v. United States, 512 U.S. 452 (1994). Officers may not ask clarifying questions if the invocation is unambiguous, however. Smith v. Illinois, 469 U.S. 91 (1984).

The suspect:

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start ... Miranda ... warningsinvokedright to remain silent

When there has been an unambiguous invocation of the right to remain silent, police must honor the invocation for a significant period of time. After that, however, they may approach the suspect with a fresh set of warnings, and attempt to obtain a waiver. Michigan v. Mosely, 423 U.S. 96 (1976).

They may also make another attempt to obtain a waiver if the suspect, without prompting, initiates a further conversation with the police. Oregon v. Bradshaw, 462 U.S. 1039 (1983). Also, they are free to approach the suspect if he or she is no longer in custody, Bobby v. Dixon, 565 U.S. 23 (2011), or if there has been an intervening break in custody. See Maryland v. Shatzer, 559 U.S. 98 (2010).

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start ... Miranda warningsinvokedsilencestatement

An invocation of the right to silence does not rule out a subsequent waiver of Miranda rights under these circumstances (honored invocation, initiation, break in custody), but the government must still show a waiver before there is further interrogation.

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start ... Miranda ... warningsinvokedright to counsel

Questioning must stop after an unambiguous invocation of the right to counsel. Edwards v. Arizona, 451 U.S. 477 (1981). This bar on questioning remains effective indefinitely, even for questioning about unrelated crimes, and even if the second officer is unaware of the earlier invocation. Arizona v. Roberson, 486 U.S. 675 (1988).

The bar may be lifted under certain circumstances, which differ depending on whether the police were seeking a Miranda or Sixth Amendment waiver when the suspect invoked.

Was the pre-invocation attempt to obtain a waiver necessary because of:

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start ... Miranda ... warningsinvokedcounselEdwards

An Edwards invocation of the right to counsel does not prevent a later attempt to obtain a waiver where the suspect, without prompting, initiates a subsequent conversation, Oregon v. Bradshaw, 462 U.S. 1039 (1983), or where the suspect is no longer in custody when questioned again. See Bobby v. Dixon, 565 U.S. 23 (2011).

Questioning is also permitted where the suspect was in custody at the time of the invocation, and is in custody again, but there has been an intervening 14-day break in custody. Maryland v. Shatzer, 559 U.S. 98 (2010).

The suspect:

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start ... 6th Amendment ... warningsinvokedcounselEdwards

An Edwards invocation of the right to counsel does not prevent a later attempt to obtain a waiver where the suspect, without prompting, initiates a subsequent conversation. Oregon v. Bradshaw, 462 U.S. 1039 (1983).

Logically, the bar on questioning would also end after the charges have been dismissed, but the Supreme Court has not spoken on this.

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start ... Miranda ... warningsno invocationvoluntary waiver?

The government must show a voluntary and intelligent waiver of Miranda rights.

Officers often conclude the warnings with a request for an express verbal or written waiver ("having these rights in mind, do you wish to go forward without a lawyer?"). However, an express waiver is not required. A waiver may be implied from the circumstances, even if the suspect refuses to sign the rights card. See North Carolina v. Butler, 441 U.S. 369 (1979).

The voluntariness of a Miranda waiver is analyzed the same way as the voluntariness of a statement (the "totality of the circumstances" test). See Butler, id.

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start ... Miranda ... warnings ... voluntary waiverintelligent waiver?

An intelligent waiver does not require a sophisticated understanding of things or the knowledge of all the relevant circumstances. It is intelligent if made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986).

The officer typically asks, right after reciting the warnings, whether the suspect understands the rights. Omitting that question makes proof of an intelligent waiver practically impossible. Tague v. Louisiana, 444 U.S. 469 (1980). But see Berghuis v. Thompkins, 560 U.S. 370 (2010) ("conflicting evidence"). But intelligent waivers will almost always be found where the suspect is asked the question, affirmatively indicates that he or she understands the rights, and goes on to answer questions.

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The initial and later statements are involuntary. Statements that are involuntary may not be used in the government's case-in-chief, or even for impeachment. Mincey v. Arizona, 437 U.S. 385, 398 (1978).

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startinvoluntary ... second untainted statementadmissible

The initial statement is involuntary, and may not be used in the government's case-in-chief, or even for impeachment. Mincey v. Arizona, 437 U.S. 385, 398 (1978). However, the second untainted statement was not so closely related that "the facts of one control the other." Consequently, it is not fruit of the poisonous tree.

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startinvoluntarystate actiontaints later confession?

An involuntary confession does not necessarily taint a later confession. Where an otherwise admissible confession follows an involuntary confession, the test is whether the two statements are so closely related that "the facts of one control the other." Leyra v. Denno, 347 U.S. 556, 561 (1954).

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start ... subsequent attempt to obtain waiver

You have reached this point because the suspect did not receive proper Miranda warnings, and so there was not a valid waiver (e.g., police omit warnings, questioning by an informant supervised by police). This does not foreclose the admissibility of statements properly obtained at some later time.

This is true even if the initial statement was taken after required warnings were intentionally omitted, and the officers knew that they were required, unless the unwarned statements were used in a "calculated way" to undermine later warnings. See Missouri v. Seibert, 542 U.S. 600 (2004); Bobby v. Dixon, 565 U.S. 23 (2011).

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The questioning is unlawful, and statements obtained would be inadmissible in the government's case-in-chief. The statements may, however, be used to impeach the defendant if they were voluntarily made. See Oregon v. Hass, 420 U.S. 714 (1975) (Miranda violations); Kansas v. Ventris, 556 U.S. 586 (2009) (Sixth Amendment).

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start ... subsequent attempt?valid waiver?

The initial questioning was unlawful, and statements obtained would be inadmissible in the government's case-in-chief. The statements may, however, be used to impeach the defendant if they were voluntarily made. See Oregon v. Hass, 420 U.S. 714 (1975) (Miranda violations); Kansas v. Ventris, 556 U.S. 586 (2009) (Sixth Amendment).

A defendant's statements in the second interrogation, however, if made voluntarily after a proper waiver of constitutional rights, are fully admissible.

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The questioning is lawful under federal law. Special rules may apply under state constitutions, statutes, or evidence rules, but there do not appear to be any significant barriers to questioning under the U.S. Constitution or federal statutes.

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