| The Fifth Amendment of the United States Constitution requires that no person shall be compelled in any criminal case to be a witness against himself. The self-incrimination privilege of the Fifth Amendment means that a person cannot be compelled to give a testimonial communication to a police officer. A testimonial communication involves mental processes and occurs when the person is required to convey a thought, a fact, or a belief to the police officer. The testimonial communication may include verbal or nonverbal responses.
In order to ensure that a person is aware of his or her self-incrimination privilege under the Fifth Amendment, the United States Supreme Court held in 1966 in the well-known case of Miranda v. Arizona that a person must be advised of certain rights before the police can question that person. These rights are the right to remain silent, the right to an attorney, the right to the appointment of an attorney if the person cannot afford an attorney, and the fact that anything that is said by the person can be used against the person in a court of law.
The Miranda warnings are required only when a person has been taken into custody by the police and when there is an interrogation. A person is taken into custody when his or her freedom of movement has been restricted such as with a formal arrest. However, the person need not be formally arrested in order to be in custody. Factors for determining whether the person has been taken into custody include whether the person is the focus of an investigation, whether a reasonable person would believe that he or she is free to leave, the intent of the police, and the existence of probable cause for an arrest. The fact that the person has been stopped by the police and has even been handcuffed does not necessarily mean that the person has been taken into custody. The overriding factor is whether the person felt that he or she was free to leave.
An interrogation means words or actions on the part of the police, which would lead a reasonable person to believe that answers or responses are being solicited by the police. Statements by the police that do not elicit a response do not constitute interrogation. The issue is whether the police are attempting to elicit an incriminating response to their questions from the person. Miranda warnings are not required for routine booking questions or for requests for a license and proof of insurance from a motorist during a traffic stop. The interrogation must be result of a police practice. If a third party elicits a response from a person, which third party is not a police officer or a state agent, the Miranda warnings do not apply. The state agent need not be a law enforcement officer. If the state agent is attempting to elicit incriminating responses from the person, the Miranda warnings are required.
If a person is taken into custody and is subject to an interrogation, the Miranda warnings are required. If they are not given, it is presumed that any statement or confession by the person is coerced and is not voluntary. The involuntary statement or confession may not be used as evidence in a trial because it violates the person's Fifth Amendment rights. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |