Repealing Miranda?: Background of the Controversy over Pretrial Interrogation and Self-Incrimination

CRS Report for Congress
Repealing Miranda?: Background of the
Controversy over Pretrial Interrogation
and Self-Incrimination
Updated July 20, 2004
Paul S. Wallace, Jr.
Specialist in American Public Law
American Law Division

Congressional Research Service ˜ The Library of Congress

Repealing Miranda?: Background of the Controversy
over Pretrial Interrogation and Self-Incrimination
Although an involuntary confession has been inadmissible in federal cases since
the nineteenth century, the Supreme Court did not denounce physically coercive
abuses in State cases until its decision in Brown v. Mississippi. The Brown case
established the basis for the Fourteenth Amendment “voluntariness” standard as the
due process test for assessing the admissibility of confessions in State cases. Under
this standard, the admissibility of a confession was evaluated on a case by case basis
which would be governed by the “totality of the circumstances,” which included the
facts of the case, the background of the accused, and the behavior of the police during
the interrogation.
In Miranda v. Arizona, the Court established several procedures to safeguard the
Fifth Amendment rights of persons during custodial interrogations. The Court
reasoned that the suspects needed the safeguards because “[t]he circumstances
surrounding in-custody interrogation can operate very quickly to overbear the will of
[the suspect...” and without them no statement can be considered the product of
his/her free will.
Miranda was controversial among policy-makers and academics who debated
its legitimacy and desirability over thirty years after its judicial creation. One of the
major arguments offered for overruling Miranda was that it had caused great
difficulty to law enforcement efforts in controlling crime. The ruling in Dickerson
v. United States, 530 U.S. 428 (2000), struck down 18 U.S.C. 3501, a federal law that
allowed confessions elicited without a police advisory to be used at trial as long as
the “totality of circumstances” demonstrated that they were given voluntarily.
Dickerson made Miranda's constitutional status clear. The Miranda decisions
announced during the Court's 2003-2004 term, however, suggest that continued
vitality of seemingly conficting pre-Dickerson caselaw is less clear. United States
v. Patane, divided the Court so that no single rationale united a majority of its
members, although five Justices joined in a plurality decision that declined to
overrule its pre-Dickerson decisions concerning the admissibility of physical derivate
evidence. On the other hand, Missouri v. Seibert likewise resulted in a plurality
opinion, but in spite of contrary suggestions in the pre-Dickerson caselaw five
Justices found inadmissible a confession intentionally wrung from the defendant
before Miranda warnings and re-elicited thereafter. Five Justices did agree in
Yarborough v. Alvarado that the state courts did not unreasonably apply federal law
when -- without considering the inexperienced suspect's age (17 years old) -- they
determined that Miranda's custodial threshold had not been crossed. And they all
agreed in Fellers v. United States, that the lower courts should not have addressed
Miranda/Dickerson implications raised out of an interrogation that offended Sixth
Amendment requirements.

In troduction ......................................................1
Historical Overview and Case Law of Pretrial Interrogation Prior to Miranda...1
Due Process Prior to Miranda........................................2
The Precursor to Miranda...........................................5
McNabb/Mallory ..............................................5
Application to States...........................................6
Warnings ....................................................7
The Right to Counsel...........................................7
Adverse Implication from Silence.................................9
A Right Not To Be Questioned..................................10
The Miranda Decision and Other Developments.........................10
Case Law Developments after Miranda................................13
1.The Right To Counsel.................................13
2.The Miranda Rules (Non-Constitutional Status).............20
3.Pretrial Silence.......................................22
Overcoming the McNabb/Mallory Rule ...............................24
The Suspension in Implementation of Section 3501......................26
After Dickerson..............................................29
Overview .......................................................36

Repealing Miranda?: Background of the
Controversy over Pretrial Interrogation
and Self-Incrimination
During the 105th Congress, the proposed “Omnibus Crime Control Act of
1997” contained provisions designed to overrule Miranda. This is a review of the
controversy sparked by this as well as other proposals governing the use of a
defendant’s confession against him at his criminal trial.
This report reviews the development of the law regarding pretrial interrogation
and self-incrimination from the late nineteenth century to the time of the Miranda
decision and the period covering the aftermath. The topics covered include an
historical overview of the case law of pretrial interrogation prior to Miranda, that
barred use of a confession during a defendant’s criminal trial if he had not been given
certain warnings before confessing; the Miranda decision and related Supreme Court
cases; the McNabb/Mallory rule, that barred certain confessions made while the
defendant was being illegally held in custody; 18 U.S.C. § 3501, that addressed the
issues raised by Miranda and the McNabb/Mallory rule; proposals to replace
Miranda with a further amended version section 3501; and the Court’s decision in
Dickerson, which appears to have left the Miranda rule stronger than at any time in
its controversial history.
Historical Overview and Case Law of Pretrial
Interrogation Prior to Miranda
In spite of the Fifth Amendment’s limitation on the use of coerced confessions,1
the Supreme Court’s early decisions on the admissibility of confessions in federal
courts relied upon the common law rule.2 In the 1897 case of Bram v. United States,3

1 The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall
be compelled in any criminal case to be a witness against himself.”
2 Under the common law, confessions were admissible at trial without any restriction even
to the extent that an incriminating statement which had been obtained by torture was not
excluded. See 3 J. Wigmore, Evidence § 818(3) and § 822 n. 8 (Chadbourn rev. 1970).
3 168 U.S. 532 (1897) (Bram involved a triple murder on an American vessel on the high
seas. The first mate, Bram, was taken into custody and put in irons after being accused by
a crew member, Brown, who also came under suspicion. Bram was informed by the police
detective that Brown earlier had made a statement that he saw Bram commit the murders.

the Court attempted to define the Fifth Amendment concept of voluntariness and to
base exclusion upon violation of the privilege against self-incrimination, but the
Court in a subsequent decision appeared to withdraw from that viewpoint.4
Nonetheless, the Bram “voluntariness” approach was affirmed in Zhang Sung Wan
v. United States,5 and it influenced the Court to state the rule of exclusion more
broadly, so that it was not merely a matter of whether the confession was reliable or
whether a forbidden inducement had been used, but rather whether the confession
“was in fact, voluntarily made.”6 According to this doctrine, confessions were
admitted only if they had been given voluntarily; confessions were excluded if the
suspect’s will was subject to police duress.
Due Process Prior to Miranda
It was not until Brown v. Mississippi7 that the Supreme Court applied the due
process standard for use of a confession in State criminal proceedings. Prior to that
time, the Court had consistently held that the Fifth Amendment did not apply to the
states, and considered the admissibility of incriminating statements in state
proceedings as a issue of Fourteenth Amendment due process relative to those
standards regarding the conventional rule of evidence which prohibits involuntary
confessions.8 In Brown, three Black defendants were beaten by sheriff’s deputies
investigating the murder of a White male. The deputies hung one of the suspects
from a tree, let him up and down several times and then beat him twice (while tied9
to a tree and subsequently on the roadside) until he confessed. The deputies arrested
the other two suspects, stripped and placed them over chairs, and then beat both

Bram replied, “He could not have seen me. Where was he?” “He states he was at the
wheel,” the detective said. “Well,” Bram replied, “he could not have seen me from there.”
Id. at 562. In holding Bram’s incriminating statement inadmissible, the Court reasoned that
“when the statement was made to him that the other suspected person had charged him with
the crime, the result was to produce upon his mind the fear that [,] it would be considered
an admission of guilt.” Id. Therefore, the Court believed that Bram’s statement was not
“wholly voluntary” because “the answer which he gave and which was required by the
situation was ... influenced by the force of hope or fear.” Id. at 562-63).
4 United States v. Cardigan, 342 U.S. 36, 72 (1951).
5 266 U.S. 1 (1924). The case concerned the admissibility of statements obtained from a
seriously ill suspect who had been detained and interrogated relentlessly until he finally
confessed to three murders. Id. at 11. Replying to the prosecution’s argument that the
incriminating statements were voluntary because there was no police coercion, the Court
held that “the requisite of voluntariness is not satisfied by establishing merely that the
confession was not induced by a promise or threat.” Id. at 14. Although the police did not
perform any overtly coercive action, the fact that they persistently questioned the suspect
while he was ill cast great doubt on whether his confession was made voluntarily.
6 Id. at 45.
7 297 U.S. 278 (1936). The Fifth Amendment privilege against self-incrimination was not
made binding on the States until 1964. Malloy v. Hogan, 378 U.S. 1, 8 (1964).
8 See Brown v. Mississippi, supra note 7; Chambers v. Florida, 309 U.S. 227 (1940).
9 Id. at 281.

suspects with buckled leather straps until they confessed.10 Since the Fifth
Amendment privilege was then not deemed applicable to the states, the Court struck
down the confessions based on the theory that interrogation is part of the process by
which a state acquires a conviction and thus is subject to the requirements of the
Fourteenth Amendment due process clause.11 The Court unanimously reversed the
convictions of all three suspects, deciding that the police tactics violated the Due
Process Clause of Fourteenth Amendment.12
Having established in Brown that due process was violated when a conviction
rested exclusively upon a confession which was obtained in this manner, later cases
made it clear that the admission at trial of such a confession was unconstitutional.13
In Brown, the Court held that although a State might be able to do away with the
privilege against self incrimination completely, a State could not exact a confession
by torture.14 Subsequently, this was commonly referred to as the “Fourteenth
Amendment due process voluntariness test” requirement, and it was the standard
used by the Court in articulating the due process requisites for its admissibility.15
Under this standard, the admissibility of a confession was evaluated on a case by case
basis according to the “totality of the circumstances,”16 surrounding each confession.
Four years after Brown, the Court in Chambers v. Florida,17 reversed a State
conviction based on confessions obtained after five days of interrogation, during
which the suspects had no contact with their friends, advisers or counselors.18 The
Court went further than Brown and held that even where there was no physical
violence,19 continuous questioning and “other ingenious forms of entrapment of the
helpless” could constitute compulsion.20 Justice Black noted that it has been
suggested that the use of these coercive tactics “has lowered the esteem in which

10 Id. at 282.
11 Before the Miranda decision, the Court used the due process clause of the Fourteenth
Amendment (“No State shall deprive any person of life, liberty, or property, without due
process of law.”) to rule confessions involuntary. See Craig R. Johnson, Note, McNeill v.
Wisconsin: Blurring a Bright Line on Custodial Interrogation, 1992 Wis. L. Rev. 1643
(1992) (discussing the differences between the Fifth and Sixth Amendments).
12 Id. at 287.
13 Payne v. Arkansas, 356 U.S. 560 (1958).
14 Brown, 297 U.S. at 285-86.
15 E.g., Watts v. Indiana, 338 U.S. 49 (1949).
16 Haynes v. Washington, 373 U.S. 503 (1963).
17 309 U.S. 227 (1940).
18 Id. at 230-31.
19 Although there was a conflict regarding the issue of physical violence, the Court did not
resolve the issue and stated that its decision was not dependent upon it but was based upon
the fact that the confessions resulted from the application of compulsion. Id. at 238-39.
20 Id. at 237-39. The Court criticized the dragnet methods of taking the Black tenant farmers
into custody without warrants and noted that the Fourteenth Amendment provided protection
for those who belonged to helpless and unpopular groups. Id. at 238.

[the] administration of justice is held by the public and has engendered an attitude of
hostility to unwillingness to cooperate with the police....”21
Two years later, in Ward v. Texas, where the defendant, an Afro-American,
under interrogation had been threatened with mob violence, taken by night and day
to strange towns in several counties, incarcerated in several jails, and by persistent
questioning, coerced to confess, the Supreme Court again ruled for reversal.22 In
these and other similar cases,23 where the convictions were reversed, the Court
indicated its concern for the integrity of the process used for extracting the confession
and noted that there was almost no evidence against the defendants. The Court
therefore relied on the Fourteenth Amendment to reverse the convictions of what it
believed were innocent men. The Court was also protecting minorities from brutality
which was being tolerated by the States.24
Between the time of Brown v. Mississippi25 and Miranda v. Arizona,26 the due
process standard was applied in dozens of cases. During these years, the Court
designated certain police practices which weighed the “totality of the circumstances”
against a finding of voluntariness and admissibility—including physical force, threats
of harm or punishment, lengthy periods of unlawful detention, solitary confinement,
denial of food or sleep, and promises of leniency—and therefore were
constitutionally impermissible.27 Typical characteristics of the accused that were also
taken into consideration included youth, lack of education or intelligence, member
of a racial minority group, poverty, and mental or intellectual disabilities.28

21 Id. at 240-41, n.15.
22 316 U.S. 547 (1942).
23 Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 309 U.S. 631, reh’g denied, 310
U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Lomax v. Texas, 313 U. S. 544
24 See, e.g., Brown v. Mississippi, supra note 7; Chambers v. Florida, supra note 8; Ward
v. Texas, 316 U.S. 547 (1942).
25 Supra note 7.
26 384 U.S. 436 (1966).
27 See, e.g., Townsend v. Sain, 372 U.S. 293 (1963); Gallegos v. Colorado, 370 U.S. 49
(1962); Rogers v. Richmond, 365 U.S. 534 (1961); Blackburn v. Alabama, 361 U.S. 199
(1960); Fikes v. Alabama, 352 U.S. 191 (1957); Stein v. New York, 346 U.S. 156 (1953);
Stroble v. California, 343 U.S. 181 (1952); Gallegos v. Nebraska, 342 U.S. 55 (1951);
Harris v. South Carolina, 338 U.S. 68 (1949); Haley v. Ohio, 332 U.S. 596 (1948); Lyons
v. Oklahoma, 322 U.S. 596 (1944); Lisenba v. California, 314 U.S. 219 (1941); Ward v.
Texas, 316 U.S. 547 (1942); Chambers v. Florida, 309 U.S. 227 (1940); Brown v.
Mississippi, 297 U.S. 278 (1936).
28 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (2d ed. 1992).

The Precursor to Miranda
Miranda wove together threads from the case law regarding confessions
beginning in the late 1940's that provided the basis for significant changes in criminal
law investigations and adjudication up to the present time. These changes were
designed to impose, among other things, uniform federal standards upon the States
which up to that time had many variations in their pretrial procedures.29
Decisions in the area of police interrogations which had a distinct relationship,
as precursors, to Miranda are as follows:
McNabb v. United States30 involved the murder of a federal revenue agent
during a raid on an illegal still. Several Tennessee mountaineers with limited
education were arrested by federal agents between one and two o’clock in the
morning and were subjected intermittently to prolonged questioning over the next
several days, which resulted in confessions by three of them. The confessions were
admitted as voluntary and the defendants were convicted. The Court decided that it
was not necessary “ reach the Constitutional issue pressed upon us”31 because the
case can be resolved by the “...exercise of its supervisory authority over the
administration of criminal justice in the federal courts....”32 Since the record left no
doubt that the questioning of the defendants did not take place before a judicial
officer in a timely fashion as required by procedures which Congress commanded,
the Court concluded that the convictions:
cannot be allowed to stand without making the courts themselves accomplices
in wilful disobedience of law. Congress has not explicitly forbidden the use of
evidence so procured. But to permit such evidence to be made the basis of a
conviction in the federal courts would stultify the policy which Congress has33
enacted into law.
Mallory v. United States34 involved a decision by a unanimous Court which held
that the confession was inadmissible because it was procured in violation of a

29 Although there is a constitutional right to counsel in federal cases since the adoption in
1791 of the Bill of Rights, this right was first incorporated into State proceedings through
the Fourteenth Amendment in capital offenses in 1932 (Powell v. Alabama, 287 U.S. 45
(1932)) and subsequently broadened in 1963 to include all felony cases (Gideon v.
Wainwright, 372 U.S. 335 (1963)).
30 318 U.S. 332 (1943).
31 Id. at 340.
32 Id. at 341.
33 Id. at 345.
34 354 U.S. 449 (1957).

provision in the federal rules35 to the effect that an arrested person must be taken
before a committing magistrate “without unnecessary delay.”36 Mallory is significant
because it defined in detail what is considered “unnecessary delay”:
The police may not arrest upon mere suspicion but only on “probable cause.”
The next step in the proceeding is to arraign the arrested person before a judicial
officer as quickly as possible so that he may be advised of his rights and so that
the issue of probable cause may be promptly determined. The arrested person
may, of course, be “booked” by the police. But he is not to be taken to police
headquarters in order to carry out a process of inquiry that lends itself, even if
not so designed, to eliciting damaging statements to support the arrest and
ultimately his guilt. The duty enjoined upon arresting officers to arraign
“without unnecessary delay” indicates that the command does not call for
mechanical or automatic obedience. Circumstances may justify a brief delay
between arrest and arraignment, as for instance, where the story volunteered by
the accused is susceptible of quick verification through third parties. But the
delay must not be of a nature to give opportunity for the extraction of a37
In every case where the police resort to interrogation of an arrested person and
secure a confession, they may well claim, and quite sincerely, that they were38
merely trying to check on the information given by him.
Application to States
The Fifth Amendment to the Constitution guarantees the criminal suspect the
right against self-incrimination.39 In Malloy v. Hogan,40 the Court incorporated the
Fifth Amendment privilege against self-incrimination into the Fourteenth
Amendment, thereby requiring the State governments to recognize the constitutional41
privilege against self-incrimination. The Court pointed out that the Fifth
Amendment privilege against self-incrimination demands that the accused be free “of
any improper influence” when he is considering whether to remain silent or make a
statement.42 The Court stated that under the Fifth Amendment test, “the
constitutional inquiry is not whether the conduct of state officers in obtaining the
confession was shocking, but whether the confession was ‘free and voluntary: that

35 Fed. R. Crim. P. 5(a) (Promulgated 1946; did not exist when McNabb v. United States was
36 Mallory, 354 U.S. at 452.
37 Id. at 454-55.
38 Id. at 455-56.
39 The Fifth Amendment provides that no person “... shall be compelled in any criminal case
to be a witness against himself ....”
40 378 U.S. 1 (1964).
41 Id. at 7.
42 Id. at 7-8.

is, it must not be extracted by any sort of threats or violence, nor obtained by any
direct or implied promises, however slight, nor by the exertion of any improper
influence.’”43 The State and Federal governments were constitutionally compelled
to establish guilt by obtaining evidence from independent investigative work and not
by coerced confessions.44
Before the 1960s, there do not appear to be any Federal or State rulings
advocating a requirement of warnings in police interrogations.45 Following the
decisions by the Court in two early cases (Wilson v. United States46 and Powers v.
United States)47, it was generally established that warnings were not required during
pretrial interrogations as a requirement for the admission of a defendant’s
statements.48 In the Wilson case, the Court held that the defendant’s statements
depended on their voluntariness, and since they were voluntarily made, the absence
of warnings and counsel would not warrant their exclusion.49 In the Powers case, the
Court reviewed again the warnings issue but in constitutional terms. At the
preliminary hearing, “... the defendant, without counsel and not having been
instructed by the commissioner, voluntarily, in his own behalf, testified ....”
Following this account by the defendant, the deputy marshal who was present during
the hearing asked if he had worked at a still at another time and place. At first, the
defendant refused to answer the question, but responded affirmatively after being
informed that unless he did so he would be committed to jail. The deputy marshal
recounted this admission at trial. The Court held that requiring the defendant to
respond to questions under the threat of contempt at the preliminary hearing did not
exceed the proper limits, since he had waived his Fifth Amendment right by
voluntarily testifying on his own behalf.50
The Right to Counsel
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right ... to have [a]ssistance of
[c]ounsel for his defense.”51 Prior to 1960, it had been established that the
constitutional guarantee requires that in federal prosecutions the right of the

43 Id. at 7.
44 Id. at 8.
45 See McNabb v. United States, 318 U.S. 332, 345-46 (1943).
46 162 U.S. 613 (1896).
47 223 U.S. 303 (1912).
48 Miranda v. Arizona, 384 U.S. 436, 509 (“... by necessary implication in case after case,
the right to warnings [have] been explicitly rebuffed in this Court many years ago”, Harlan
J., dissenting citing Wilson and Powers).
49 162 U.S. at 623-24.
50 223 U.S. at 313-14.
51 U.S. Constitution Amendment VI.

defendant to have counsel assigned by the court relates only to proceedings in court
and does not include preliminary proceedings before a committing magistrate.
However, in Hamilton v. Alabama,52 a 1961 capital case, the Court ruled that an
indigent defendant was entitled to appointed counsel at an arraignment where the
Alabama law viewed certain defenses, such as insanity, which if not raised at that
point as abandoned. Likewise, in White v. Maryland,53 a 1963 decision reversing a
murder conviction, the Sixth Amendment right was held to apply where the
defendant was asked to enter only a non-binding plea at the preliminary hearing, but
his non-binding plea of guilty, though later withdrawn, was still used against him at
trial. Subsequent to the Hamilton v. Alabama and White v. Maryland decisions,
which recognized the right to counsel in well defined situations in pretrial judicial
proceedings at the State level, the Court took a considerable step by extending the
Sixth Amendment right to counsel to solely non-judicial pretrial situations.54
In Massiah v. United States,55 Massiah was indicted for federal narcotics
violations, for which he retained counsel, pled not guilty and was released on bail.
The codefendant, who unknown to Massiah, was cooperating with the authorities
when he, with a radio transmitter in his car, invited Massiah to discuss the pending
case, and during their conversation in the car, Massiah’s admissions were overheard
by a federal agent, who testified with respect to the statements at Massiah’s trial. The
Court reversed Massiah’s conviction on the ground that obtaining information from
him in this manner violated his Sixth Amendment right to counsel. The central point
behind the decision was that statements obtained by federal agents from an indicted
defendant who has counsel are, as a matter of course, inadmissible against him if
obtained without counsel present.56 The decision is significant inasmuch as it is the
initial expansion of the right to counsel to police interrogations and investigations.
In Escobedo v. Illinois,57 five weeks after Massiah, Escobedo was taken into
custody and questioned concerning the fatal shooting of his brother-in-law, but his
attorney obtained his release. DiGerlando, who was already in police custody and
who was later indicted for the murder along with Escobedo, told police that Escobedo
had fired the fatal shots, so Escobedo was again arrested. In the course of
questioning, Escobedo’s repeatedly requested to consult with his attorney, who had
come to the police station but was barred from seeing him. After the police arranged
a confrontation between DiGerlando and Escobedo, Escobedo incriminated himself
in the killing which was admitted at his trial. Deciding that the statements were
inadmissible on the ground that Escobedo had been denied the Sixth Amendment
right to counsel, the Court reversed the conviction. The Court’s decision was limited
to the facts of the case:

52 368 U. S. 52 (1961).
53 373 U.S. 59 (1963).
54 Massiah v. United States, 377 U.S. 201 (1964); Escobedo v. Illinois, 378 U.S. 478 (1964).
55 377 U.S. 201 (1964).
56 Id. at 206.
57 378 U.S. 478 (1964).

We hold ... that where, as here, (1) the investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on a particular suspect, (2)
the suspect has been taken into police custody, (3) the police carry out a process
of interrogations that lends itself to eliciting incriminating statements, (4) the
suspect has requested and been denied an opportunity to consult with his lawyer,
and (5) the police have not effectively warned him of his absolute constitutional
right to remain silent, the accused has been denied ‘the Assistance of Counsel’
in violation of the Sixth Amendment to the Constitution as ‘made obligatory
upon the States by the Fourteenth Amendment,’ ... and that no statement elicited
by the police during the interrogation may be used against him at a criminal58
Adverse Implication from Silence
At the time of the writing of the Constitution, the accused was subject to
questioning by a justice of the peace, and if he failed to respond to his questions, it59
could be admitted into evidence. Subsequently, the courts developed a general
standard or rule of evidence which provided that an accused’s silence following
accusations against him, which one would normally respond to, could be admitted
at trial and made the basis for an adverse inference.60 The prohibition of adverse
comment regarding a defendant’s decision to remain silent was rejected by most
informed professional opinion; this was reflected in the formulation of the model61
rules of evidence. During the 1960s, six States allowed adverse comments to be
made which stemmed from the silence by the accused.62 There were no decisions by
the Court on this issue regarding the application of the Fifth Amendment for the
reason that the Amendment was not applicable to the States63 until the Court
incorporated the Fifth Amendment and made it applicable to the states in Malloy v.
Hogan64 During the following year, the Court addressed the Fifth Amendment in65
reviewing a State case when it struck down the provisions of California’s
constitution permitting comment by court and counsel on a defendant’s “...failure to66

explain or deny by his testimony any evidence or facts in the case against him....”
58 Id. at 490-91.
59 Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 14, 16-18 (1949).
60 Adoptive Admissions, Arrest and the Privilege Against Self-Incrimination: A Suggested
Constitutional Imperative, 31 U. Chi. L. Rev. 556, 556-59 (1964).
61 Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 939
n.58 (1965).
62 See 8 J. Wigmore, Evidence § 2272 n.2 (McNaughton rev. 1961).
63 See Adamson v. California, 332 U.S. 46 (1947).
64 378 U.S. 1 (1964).
65 See Griffin v. California, 380 U.S. 609 (1965).
66 Id. at 610 n. 2.

A Right Not To Be Questioned
The accused could not cut off pretrial interrogation inasmuch as the right was
not recognized by the Court prior to its decision in Miranda. For example, in
Crooker v. California,67 the accused claimed his voluntary confession should be
withheld because it was obtained after the police denied his request to contact his
lawyer. The majority rejected this contention, asserting that such a rule “...would
effectively preclude police questioning—fair as well as unfair—until the accused was
afforded opportunity to call his attorney.”68 The Court found support in the Betts v.
Brady69 rule that due process did not impose a flat requirement of appointed counsel
in all serious State trials.
The Miranda Decision and Other Developments
Together with four cases, the title case in Miranda v. Arizona,70 arose from
Ernesto Miranda’s kidnapping and rape of an eighteen-year-old woman. Miranda
confessed to the crime shortly after being taken into custody. He made no request to
consult with an attorney while being interrogated but neither was he advised by the
police that he had a right to have an attorney present. At his trial, the written
confession was admitted in evidence.71 The Court reversed Miranda’s conviction
based upon the failure of the police to comply with the new rules that were
announced in the Miranda decision.
Before the Court explained its holding, it discussed “... the nature and setting of
... in-custody72 interrogation[s] ....”73 The Court was cognizant of the police violence

67 357 U.S. 433 (1958).
68 Id. at 441.
69 316 U.S. 455, 462 (1942).
70 384 U.S. 436 (1966). The Court decided Westover v. United States, 384 U.S. 436 (1966),
rev’g 342 F.2d 684 (9th Cir. 1965); California v. Stewart, 384 U.S. 436 (1966), aff’g 400
P.2d 97 (Cal.1965); and Vignera v. New York, 384 U.S. 436 (1966), rev’g 207 N.E.2d 527
(N.Y. 1965), together with Miranda. These cases involved the issue of whether the
statements taken from a defendant, without any warning regarding the defendant’s rights,
could be admitted as evidence against the defendant at trial.
71 Id. at 491-93.
72 Under Miranda, custody involves being “... deprived of [one’s] freedom of action in any
significant way.” 384 U.S. at 444. The defendant has the burden of proving custody. Seeth
United States v. Charles, 738 F.2d 686, 692 (5 Cir. 1984).
73 Id. at 445. Miranda safeguards only extend to those persons who are subjected to “...
questioning initiated by law enforcement officers after ... [they have] been taken into
custody ...” Id. at 444.
There are various types of questions which do not require Miranda warnings: In
Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990), the Court held that “routine booking”
questions are not considered part of the interrogation because they are not intended to “...
elicit ... incriminating response[s] from the suspect.” However, in Estelle v. Smith, 451 U.S.

which could occur at that time during custodial interrogations because of the
“incommunicado” nature of the proceedings.74 The Court noted that, while police
brutality of the early 1900s75 was no longer the standard practice, the community still
needed protection against the “psychological rather than physically oriented”
interrogation.76 The Court believed that it was necessary to give this protection to
suspects because all police interrogation manuals emphasized the need for privacy
during the interrogation so that in effect, “[t]he subject ... [was] deprived of every
psychological advantage.”77 The Court referred to techniques and psychological
tactics interrogators are instructed to use during an interrogation to obtain evidence
from the suspect.78 The Court reasoned that the suspects needed the safeguards
because “[t]he circumstance surrounding in-custody interrogation can operate very
quickly to overbear the will of [the suspect] ...”79 and without them no statement can
be considered the product of his/her free will.
The rules are designed to safeguard the privilege against self-incrimination, and
must be followed in the absence of “other procedures which are at least as effective
in apprising accused persons of their right of silence and in assuring a continuous
opportunity to exercise it ....”80 These rules apply “[a]t the outset”, when the person
is first subjected to interrogation while in custody at the station or otherwise
restricted in the freedom of his/her actions in any meaningful way.81
The specific rules (safeguards) enunciated by the Court were as follows:
(1)Regardless of his prior awareness of his rights, if the accused in custody
is to be subjected to questioning, “he must first be informed in clear and unequivocal
terms that he has the right to remain silent”, so that those unaware may learn of this
right and so that they will be able to overcome the inherent pressures of the
interrogation atmosphere.82

454, 468-69 (1981), the Court decided that a “court-ordered psychiatric examination” of the
accused did constitute an interrogation requiring Miranda warnings.
74 Id.
75 See Brown v. Mississippi, supra note 7.
76 384 U.S. at 448.
77 Id. at 449.
78 Id. at 453.
79 Id. at 469.
80 Id. at 467.
81 Id. at 467-68, 479.
82 Id. at 467-68. In some situations, statements are admissible even though obtained as a
result of a Miranda violation. In New York v. Quarles, 467 U.S. 649, 655-60 (1984), the
Court held that the statements obtained from the suspect while in custody were admissible,
even though there was a failure to give Miranda warnings, when “... a situation posing a
threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.” Also, statements obtained in violation
of Miranda may be admissible to impeach a defendant’s contradictory testimony at trial.

(2)The warning regarding the right to remain silent “... must be accompanied
by the explanation that anything said can and will be used against the individual in
court” so as to make sure that the suspect will be aware of the consequences of
forgoing it.83
(3)Because this warning is an absolute prerequisite to interrogation, the
suspect “must be clearly informed that he has the right to consult with a lawyer and
to have the lawyer with him during interrogation” regardless of the circumstances
which may indicate “that the person may have [already] been aware of this right ....”84
(4)The individual must be warned “that if he is indigent a lawyer will be
appointed to represent him,” otherwise, “the admonition of the right to consult with
counsel would often be understood as meaning only that he can consult with a lawyer
if he has ... the funds to obtain one.”85
(5)If the “individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease”; and if he
“states that he wants an attorney, the interrogation must cease until an attorney is
present . ”86
(6)If during an interrogation, a statement is taken without the presence of an
attorney, a heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self-incrimination and his
right to retained or appointed counsel”; and “... a valid waiver will not be presumed
simply from the silence of the accused after warnings are given or simply from the
fact that a confession was in fact eventually obtained.”87
(7)Any statement obtained in violation of these guidelines may not be
admitted into evidence inasmuch as the rules do not distinguish degrees of
incrimination and it is without regard as to whether it is only an admission of part of
an offense or whether the statements are “inculpatory” or “exculpatory.”88
(8)It is impermissible for one to be penalized for exercising his Fifth
Amendment privilege, and therefore the prosecution may not “use at trial the fact that
[the accused] stood mute or claimed his privilege in the face of accusation.”89

Oregon v. Hass, 420 U.S. 714, 723-24 (1975).
83 Id. at 469.
84 Id. at 471-72.
85 Id. at 473.
86 Id. at 473-74.
87 Id. at 475.
88 Id. at 476-77.
89 Id. at 468 n.37.

Subsequently, the Court made two things very clear in Miranda which made it
unique: (1) Based upon the Court’s interpretation, there is a requirement under the
Fifth Amendment that suspects must knowingly and voluntarily waive their rights
which in effect places an affirmative duty on police officers to inform the accused of
his/her rights.90 (2) No decision prior to Miranda in construing the Fifth Amendment
had stated that any of the rules imposed by Miranda were required for compliance
with the amendment.91
Case Law Developments after Miranda

1.The Right To Counsel.

In 1975, the Court seemed to take a more limited view of the Miranda
safeguards in Michigan v. Mosely.92 The Court in rejecting the strict application of
the Miranda safeguards to bar new interrogations, reviewed the circumstances
leading to the incriminating statements to determine when a suspect waives his93
rights. The Court “... concluded that the admissibility of statements obtained after
the person in custody has decided to remain silent depends under Miranda on94
whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” As for the
application of the “scrupulously honored” test, the majority concluded it was met on
the facts of the case because “... the police here immediately ceased the interrogation,
resumed questioning only after the passage of a significant period of time and the
provision of a fresh set of warnings, and restricted the second interrogation to a crime
that had not been a subject of the earlier interrogation.”95 Hence, the Court appeared
to move towards a less rigid approach, permitting limited renewed interrogations
rather than an all inclusive Miranda coverage.
In 1977, the Court appeared to extend the Miranda rights in Brewer v.96
Williams. In deciding that the police violated the suspect’s rights to counsel under

90 Miranda, 384 U.S. at 478-79.
91 Id. at 467-473.
92 423 U.S. 96 (1975) (Mosely invoked his right to remain silent after police read him his
Miranda rights. Id. at 97. The officers stopped their interrogation, but later, a different
detective at a different location asked Mosely about an unrelated crime. Id. at 97-98. The
new officer then read Mosely his rights again, but during this period, Mosely did not invoke
his right to remain silent and began to give incriminating statements to the detective
voluntarily. Id. at 98. Mosely argued that the Court should prohibit these statements from
being introduced into evidence). Id. at 98-99.
93 Id. at 104.
94 Id.
95 Id. at 106.
96 430 U.S. 387 (1977). After police officers arrested the defendant for abducting a 10-year-
old girl, they advised him of his Miranda rights. Id. at 390. The police agreed not to
interrogate the defendant while transporting him. Id. at 391-92. During the trip to Des
Moines, Williams did not express a willingness to be interrogated in the absence of an

Miranda, the Court stated that “... courts [should] indulge in every reasonable
presumption against waiver....”97 The Court noted that “... the right to counsel
granted by the Sixth and Fourteenth Amendments means at least that a person is
entitled to the help of a lawyer at or after the time that judicial proceedings have been
initiated against him-’whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.’”98 Being aware that a warrant had been
issued for his arrest, he had been arraigned on that warrant before a judge, and he had
been committed by the court to confinement in jail, the Court concluded “[t]here can
be no doubt in the present case that judicial proceedings had been initiated ....”99 The
State has the burden of proving that a suspect actually relinquished his rights, and not
merely that he comprehended them.100 Hence, the Court appeared to be giving
expanded Miranda protection by making waiver of the right to counsel more
In 1979, the Court appeared to change its position again in North Carolina v.
Butler.101 Rather than making waiver more difficult, the Court appeared to make it
easier by allowing implicit waivers.102 Disregarding the rule that only explicit
waivers, either written or oral, are effective, the Court placed emphasis on whether
the accused waived his rights “knowingly and voluntarily” rather than the form of the
accused’s waiver.103 Therefore, according to Butler, words and action may be
sufficient to waive a suspect’s rights but the presumption by the courts must still be
against waiver.104 However, the Court ultimately decided that all the circumstances
will be reviewed in order to determine if the waiver was voluntary.105

attorney; instead, he stated several times that “[w]hen I get to Des Moines and see [my
lawyer] I am going to tell you the whole story.” Id. at 392. The detective and the defendant
then embarked on a wide-ranging conversation which made the defendant feel guilty based
on his religious beliefs. Id. at 392-93. As a result of this, the defendant confessed, and his
lawyer sought to suppress all evidence resulting from these statements. Id. at 393.
97 Id. at 404.
98 Id. at 398.
99 Id. at 399.
100 Id. at 404.
101 441 U.S. 369 (1979).
102 Id. at 373.
103 Id. The defendant was given his Miranda rights orally at the time of arrest and later at
the F.B.I. he read an “Advice of Rights” form which he said he understood, after which he
said he would talk to the agents but would not sign the waiver at the bottom of the form. The
state supreme court excluded the defendant’s incriminating statement on the ground that a
waiver of Miranda rights “... will not be recognized unless such waiver is ‘specifically
made’ after the Miranda warnings have been given”, but the Court disagreed. Id. at 372.
104 Id. at 373.
105 Id. The Court said: “An express written or oral statement of waiver of the right to remain
silent or of the right to counsel is usually strong proof of the validity of that waiver, but is
not inevitably either necessary or sufficient to establish waiver. The question is not one of
form, but rather whether the defendant in fact knowingly and voluntarily waived the rights
delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not

In 1981, the Court once more in Edwards v. Arizona,106 redefined the
requirements for an effective waiver. The Arizona Supreme Court, in deciding the
issue of voluntariness, applied the totality of the circumstances test in finding that
Edwards waived his rights when he voluntarily spoke with police after he had
invoked his right to counsel during an interrogation the day before.107 The Court
reversed, holding “... that an accused, ... having expressed his desire to deal with
police only through counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates
further communication, exchanges or conversations with the police.”108 The Court
further stated that police cannot “... reinterrogate an accused in custody if he has
clearly asserted his right to counsel.”109 It would appear as if the “clearly asserted”
language was an indication that there will be a requirement for a clear and precise
statement in order to invoke the right to counsel, which has the effect of overruling
the “in any manner” guidelines in Miranda. It also reveals the significance that the
Court attaches to protecting the right to counsel by requiring more than an
incognizant waiver of that right; “... the accused himself [must] initiate[] further
communication.”110 Opting for the stricter knowing and intelligent waiver over the
broader totality of circumstances test, the Court appeared to be seeking a way to
affirmatively protect the accused’s right to have counsel during the interrogation.111
In 1983, the Court had another opportunity to review the Edwards test in
Oregon v. Bradshaw.112 The Court agreed in Bradshaw that the admissibility of a
confession given by a defendant who earlier invoked his Miranda right to counsel is
to be determined by a two-part test. It first must be determined whether the
defendant “initiated” further conversation as required by Edwards.113 This means

enough. That does not mean that the defendant’s silence, coupled with an understanding of
his rights and a course of conduct indicating waiver, may never support a conclusion that
a defendant has waived his rights. The courts must presume that a defendant did not waive
his rights: the prosecution’s burden is great; but in at least some cases waiver can be clearly
inferred from the actions and words of the person interrogated.” Id.
106 451 U.S. 477 (1981).
107 Id. at 480, 483; see also United States v. Cleveland, 106 F.3d 1056, 1063 (1st Cir. 1997);
United States v. Maisonneuve, 950 F. Supp. 1280, 1286 (D. Vermont 1996).
108 451 U.S. at 484-85.
109 Id. at 485.
110 Id. at 484-85.
111 See Id. at 485.
112 462 U.S. 1039 (1983); see also United States v. Sriyuth, 98 F.3d 739, 749 (3rd Cir. 1996).
113 462 U.S. at 1045-46. Police arrested Bradshaw and advised him of his Miranda rights.
Id. at 1041. After briefly talking with the police, Bradshaw invoked his right by saying: “I
do want an attorney before it goes very much further.” Id. at 1041-42. The police
immediately ended the questioning. Id. at 1042. Subsequently, Bradshaw asked a police
officer, “Well, what is going to happen to me now?” Id. In response, the police officer
replied that Bradshaw did not have to say anything since he had already requested a lawyer.
Id. After Bradshaw said he understood, the police officer discussed with Bradshaw as to
where he was being taken. Id. Later, Bradshaw admitted his guilt. Id.

that the impetus must come from the accused, and not the officers.114 Under this test,
any previous police-initiated interrogation must have ended prior to the suspect’s
alleged initial remarks, since he/she cannot “initiate” an ongoing interrogation.115
Second, if it is found that the defendant “initiated” further conversation, it must then
be determined if the accused waived his right to counsel and silence, “... that is,
whether the purported waiver was knowing and intelligent and found to be so under
the totality of the circumstances, including the necessary fact that the accused, not the
police, reopened the dialogue with the authorities.”116
In 1984, in Smith v. Illinois,117 the Supreme Court was presented with its first
opportunity to address an equivocal request for counsel. The Court noted that the
issue was whether the accused had invoked his right to counsel so as to come within
the Edwards test.118 The Court recognized the three approaches for determining the
consequences of such ambiguities but declined to adopt one.119 The Court stated that
“Where nothing about the request for counsel or the circumstances leading up to the
request would render it ambiguous, all questioning must cease.”120 Hence, there
appears to be the implication that only unambiguous requests will be sufficient for
the recognition of the right to counsel.121 However, the Court did not answer the

114 Id. at 1043.
115 See Id.
116 Id. at 1045.
117 469 U.S. 91 (1984).
118 This occurs when the suspect’s statements preceding or contemporaneous with the
purported request for counsel make that request equivocal. The police arrested Smith and
the interrogating officers advised him of his Miranda rights. Id. at 92-93. After the officers
advised him of his right to counsel and asked him if he understood, Smith said: “Uh, yeah.
I’d like to do that.” Id. at 93. Instead of halting the interrogation, the detectives continued
asking more questions about the right to counsel. Id. Smith replied ambiguously until he
finally said that he would like to talk to the detectives. Id. Upon further questioning, Smith
confessed and then invoked his right to counsel. Id. at 93-94. The detectives stopped the
interrogation immediately. Id. at 94. Smith sought to suppress the confession, but both the
trial court and the Illinois Appellate Court did not grant the request, deciding that Smith
never made an effective request for counsel. Id. The Illinois Supreme Court affirmed,
holding that Smith’s statements were ambiguous and not an effective request for counsel.
119 Id. at 96 n. 3. “Some courts have held that all questioning must cease upon any request
for or reference to counsel, however equivocal or ambiguous. Others have attempted to
define a threshold standard of clarity for such requests, and have held that requests falling
below this threshold do not trigger the right to counsel. Still others have adopted a third
approach, holding that when an accused makes an equivocal statement that ‘arguably’ can
be construed as a request for counsel, all interrogation must immediately cease except for
narrow questions designed to ‘clarify’ the earlier statement and the accused desires
respecting counsel.”
120 Id. at 98.
121 Id.

In 1986, the Court in Michigan v. Jackson,122 held that when the Sixth
Amendment right to counsel has attached, “... if police initiate interrogation after a
defendant’s assertion, at an arraignment or similar proceeding of his right to counsel,
any waiver of the defendant’s right to counsel for that police-initiated interrogation
is invalid.”123 The Court appeared to move toward a lower limit for invoking the
right to counsel.124 The Court stressed the need for protecting a suspect’s rights,
stating that “... we presume that the defendant requests the lawyer’s services at every
critical stage of the prosecution.”125 The Court’s opinion that “... questions of waiver
requires us to give a broad, rather than a narrow, interpretation to a defendant’s
request for counsel...”126 appears to have been an additional indication of the Court’s
willingness to accept ambiguous requests for counsel.
In 1987, the Court in Connecticut v. Barrett,127 acknowledged for the first time
the issue of the ambiguous request for counsel.128 Though the Connecticut Supreme
Court ruled that the ambiguous request for counsel amounted to an invocation to
counsel for all purposes, the Supreme Court concluded otherwise stating: “Barrett’s
limited requests for counsel ... were accompanied by affirmative announcements of
his willingness to speak with the authorities. The fact that officials took the
opportunity provided by Barrett to obtain an oral confession is quite consistent with
the Fifth Amendment. Miranda gives the defendant a right to choose between speech
and silence, and Barrett chose to speak.”129 Inasmuch as Barrett refused to provide
a written statement but would talk to the police, the Court said he only invoked a
limited right to counsel.130 The Court further stated that “... Barrett made clear his

122 475 U.S. 625 (1986).
123 Id. at 636. After the suspects invoked their right to counsel at an arraignment, the police
continued the interrogation and elicited their confessions. Id. at 627-28. The Court held
that the right to counsel attaches during arraignment interrogations, and as with any
custodial interrogations, any waiver after an assertion of the right is invalid. Id. at 636. Seeth
also Bannister v. Delo, 100 F.3d 610, 620 (8 Cir. 1996).
124 475 U.S. at 636.
125 Id.
126 Id at 633.
127 479 U.S. 523 (1987).
128 After the police advised Barrett of his Miranda rights, he said he would talk to the police,
but would not “... give a written statement unless his attorney was present ....” Id. at 525.
Thirty minutes later, the police gave Barrett his Miranda rights again, and once more,
Barrett said he would talk, but would not provide any written statement. Id. He then
confessed to the police. Id. When the police discovered that they had failed to record the
confession, they advised Barrett of his right for the third time. Id. at 525-26. After Barrett
reiterated his refusal to give any written statement and his willingness to talk, he confessed
again. Id. at 526. The trial court rejected Barrett’s request to suppress the confession,
however the Connecticut Supreme Court reversed, deciding that Barrett “... had invoked his
right to counsel by refusing to make written statements without the presence of his
attorney.” Id. at 526.
129 Id. at 529.
130 Id. at 529-30 n.3.

intentions,” he invoked his right to have counsel present during a written statement,
but waived his right to have counsel present while speaking with the authorities.131
In 1988, the Court in Arizona v. Roberson,132 provided what appears to be its
current approach to the issue of ambiguous request for counsel. The holding in this
case suggests that the approach taken in Edwards v. Arizona133 rather than Michigan
v. Mosely134 governs even when a subsequent interrogation deals with a different and
unrelated crime.135 In holding that once a suspect invokes the right to counsel, the
police cannot initiate questioning, although the officers were not aware of the
previous invocation136 or if the questioning relates to another crime,137 the Court’s
objective was to protect the suspect’s right to counsel.138
In 1990, in Minnick v. Mississippi,139 the Court clarified the “available to him”
language in Edwards which means “... that when counsel is requested, interrogation

131 Id. at 529.
132 486 U.S. 675 (1988).
133 See supra note 112. A request for counsel under the Edwards rule mandates that all
interrogation must cease unless: (1) “the accused ... initiates further communication,
exchanges or conversations with the police” or (2) counsel is physically present. Mere
arrangements for an attorney or prior consultation with counsel are not sufficient. A
violation of the rule results in suppression of the statements, even though the accused is
readministered his rights to counsel and waives them. According to Arizona v. Roberson,
the rule applies to reinterrogation about any crime under investigation, and the officer’s
good faith lack of knowledge that the accused previously has invoked the right to counsel
is no excuse. However, the question of whether an in-custody suspect can be reinterviewed,
in violation of Edwards, after a considerable passage of time remains unsettled. See United
States v. Green, 592 A.2d 985, 988-91 (D.C.App. 1991)(confession suppressed despite
passage of more than five months after suspect asked for counsel on an unrelated charge),
(cert. dismissed after accused died) 113 S.Ct. 1835 (1993).
134 See supra note 92.
135 The police arrested Roberson for burglary and advised him of his Miranda rights. In
reply, he stated that “... he ‘wanted a lawyer before answering any questions’.” Id. At 678.
Three days later, while Roberson was still in custody, a different officer questioned him
about a different burglary, unaware that Roberson had invoked his right to counsel earlier.
Id. After giving Roberson his rights again, “... the officer obtained an incriminating
statement.” Id. The trial court and the Arizona Supreme Court agreed to suppress the
statement. Id. at 678-79.
136 Id. at 687-88. The Court noted: “Whether a contemplated reinterrogation concerns the
same or a different offense, or whether the same or different law enforcement authorities are
involved in the second investigation, the same need to determine whether the suspect has
requested counsel exists.” Id.
137 Id. at 682-83.
138 Id. at 687-88. See also Bassett v. Singletary, 105 F.3d 1385, 1388 (11th Cir. 1997).
139 498 U.S. 146 (1990).

must cease, and officials may not reinitiate interrogation without counsel present,
whether or not the accused has consulted with his attorney.”140
In 1994, the Court held in Davis v. United States,141 that the privilege against
further questioning does not extend to a suspect whose request for counsel is
ambiguous. 142
Before Davis, the Court had not decided what police officers should do when
the initial request for an attorney is ambiguous.143 The lower courts developed and
followed one of three approaches.144 Regarding the threshold-of-clarity standard, “...
an attempted invocation of the right to counsel [would have to] satisfy a certain

140 Id. at 153. In Minnick, the Court addressed the issue of whether the protection against
further interrogation in Edwards ended upon a suspect’s consultation with an attorney. Id.
at 147. The case involved a defendant who was arrested on suspicion of murder. Id. at 148.
The suspect was read his Miranda rights by Federal Bureau of Investigation (F.B.I.) Agents
and refused to sign a “rights waiver form” and said that “... he would not answer ‘very
many’ questions.” Id. at 148. The suspect gave the agents some information but told them
to “... ‘[c]ome back Monday when I have a lawyer,’ and stated that he would make a more
complete statement ....” Id. at 148-49. After the F.B.I. interviewed the suspect, he spoke
with a lawyer on two or three occasions. Id. at 149. A deputy sheriff came to question the
suspect at the jail where he was being held. Id. Before he advised the suspect of his rights,
the suspect told him that his “... jailers told him that he would ‘have to talk’ to [the deputy
sheriff] and that he ‘could not refuse’.” Id. When the sheriff read the suspect his rights, the
suspect refused to sign a rights waiver form and then confessed to the sheriff about the
events regarding the crime. Id. The trial court allowed into evidence the statements made
to the deputy sheriff, and the defendant was sentenced to death. Id. The Supreme Court of
Mississippi held that the defendant’s “... Fifth Amendment right to counsel was satisfied”
as a result of his meeting with counsel and that the attorney did not have to be present during
the later interrogation to protect the defendant’s rights. Id. at 150. (quoting Minnick v.
State, 551 So.2d 77, 83 (Miss. 1988), cert. granted, 495 U.S. 903, and rev’d., 498 U.S. 146
141 512 U.S. 452 (1994).
142 Id. At 459. The defendant, Navy sailor Davis, was questioned by the Naval Investigative
Service (N.I.S.) About the death of a fellow sailor. At the beginning of the interview, the
N.I.S. agents informed the defendant that he had a right to remain silent, and that he was
entitled to speak with an attorney and to have an attorney present during questioning. Id.
at 454-55. The defendant, however, waived his rights, both orally and in writing. Id. at 455.
About an hour and a half into the interview, the defendant said, “Maybe I should talk to a
lawyer.” Id. at 455. The interviewing agents momentarily stopped questioning the defendant
and made it clear to him that they did want to violate his rights, and that they would stop the
interrogation if he wanted a lawyer. Id. The defendant then responded, “No, I am not
asking for a lawyer,” and “No, I don’t want a lawyer.” Id. The agents, after again
reminding the defendant of his rights, continued the questioning. Id. After another hour of
questioning, the defendant said, “I think I want a lawyer before I say anything else.” Id. At
this point, the agents stopped the interview. Id.
143 See Connecticut v. Barrett, 479 U.S. 523, 530 n. 3 (1987); Smith v. Illinois, 469 U.S. 91,

99-100 (1984).

144 See Charles R. Shreffler, Jr., Judicial Approaches to the Ambiguous Request for Counsel
Since Miranda v. Arizona, 62 Notre Dame L. Rev. 460 (1987).

threshold of clarity before it [could] be considered effective.”145 The other standard,
was the “per se invocation standard.”146 Under this standard, each post-warning
reference to an attorney by the suspect was considered a per se invocation of the right
to counsel, and any questioning initiated by the police had to cease.147 The third
approach was the clarification standard.148 Here, the courts permitted the police to
pursue the interrogation for the purpose of clarifying the accused’s intent following
an ambiguous invocation of the right to counsel.149

2.The Miranda Rules (Non-Constitutional Status).

Although the Miranda rules appear to be inflexible and unyielding, neither the
Court nor the lower courts appear to have applied a strict approach in their
application. While compliance with Miranda is constitutionally required under all
circumstances, the Court stated in Michigan v. Tucker150 that:
“The [Miranda decision] recognized that these procedural safeguards were not
themselves rights protected by the Constitution but were instead measures to
insure that the right against compulsory self-incrimination was protected. ... The
suggested safeguards were not intended to ‘create a constitutional straightjacket,’
... but rather to provide practical reinforcement for the right against compulsory151
self-i ncrimi nation.”
The deviation from Miranda in the Tucker case appears to be the Court’s
pronouncement that the Fifth Amendment had not been violated in spite of the fact
that the police did not completely comply with Miranda nor did they implement any152
substitute procedural safeguards. Thus, the Tucker case appears to represent a
weakening of the Miranda procedural safeguards inasmuch as it ignores a significant
amount of the language in the Miranda case.
In New York v. Quarles,153 police officers were approached by a woman who
informed them that she had been raped by an armed man, who had gone into a

145 See Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in
Police Interrogation, 103 Yale L. J. 259, 301 (1993).
146 Id.
147 Id.
148 Id. at 302.
149 Id.
150 Michigan v. Tucker, 417 U.S. 433 (1974) (Case arose from a rape and battery committed
by Tucker. Tucker was questioned without full Miranda warnings and gave exculpatory
responses. Nonetheless, his statements led the police to a witness, Henderson, who gave
testimony at trial that was damaging to Tucker. The issue was whether Henderson’s
testimony should have been excluded, since it was obtained indirectly through an
interrogation that was not in compliance with Miranda).
151 Id. at 444.
152 Id. at 443-45.
153 467 U.S. 649 (1984).

nearby supermarket. The police located the suspect in the supermarket where they
arrested him; a frisk uncovered an empty shoulder holster, and the arresting officer
asked him, “Where is the gun?” The suspect gestured toward a stack of soap cartons
and said, “The gun is over there,” and the police found the revolver behind the
cartons. The state courts excluded Quarles’ response identifying the location of the
gun he had discarded because he had not been given the Miranda warnings.154 The
Court reversed and concluded that “... on these facts there is a ‘public safety’
exception to the requirement that Miranda warnings be given ....”155 Similar to
Michigan v. Tucker, the Court rejected the notion that the lack of Miranda warnings
implied that a violation of the Fifth Amendment had occurred.156 The Court
described Miranda as a majority which was willing to impose procedural safeguards
“... when the primary social cost of those added protections is the possibility of fewer
convictions,” which should be distinguished from the Quarles case whereby the harm
would be the incapability “... to insure that further danger to the public did not result
from the concealment of the gun in a public area.”157 Thus the Court concluded “...
that the need for answers to questions in a situation posing a threat to the public
safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s
privilege against self-incrimination.”158 To hold otherwise, the Court in Quarles said
police officers would be “... in the untenable position of having to consider, often in
a matter of seconds, whether it best serves society for them to ask the necessary
questions without the Miranda warnings and render whatever probative evidence
they uncover inadmissible, or for them to give the warnings in order to preserve the
admissibility of evidence they might uncover but possibly damage or destroy their
ability to obtain that and neutralize the volatile situation confronting them.”159
In Oregon v. Elstad,160 the Court rejected the narrow interpretation of the Tucker
case and held that Tucker’s “... reasoning applies with equal force when the alleged
‘fruit’ of a noncoercive Miranda violation is neither a witness nor an article of
evidence but the accused’s own voluntary testimony.”161 In arriving at this

154 Id. at 653.
155 Id. at 655.
156 Id. at 657.
157 Id. at 657.
158 Id.
159 Id. at 657-58.
160 470 U.S. 298 (1985).
161 Id. at 308 (In Elstad, two officers questioned the defendant at his home without first
giving him the Miranda warnings. When they expressed their belief that he had been
involved in a burglary, he stated, “Yes, I was there.” To the extent that this statement was
excluded under Miranda was not an issue. However, the defendant was questioned again
at the Sheriff’s headquarters; there, after being given the Miranda warnings, and after
waiving his rights, he made a full statement explaining his involvement in the burglary. The
defendant argued that his statement should be excluded as the fruit of the poisonous tree,
however, the Court held that the poisonous fruit doctrine did not apply).

conclusion, the Court once more rejected the concept that a violation of Miranda
necessarily involves a violation of the Fifth Amendment.162
As in Michigan v. Tucker, the Court in New York v. Quarles rejected the
contention that the absence of warnings implied that compulsion in violation of the
Fifth Amendment had taken place. Hence, these cases suggest that circumstances
may exist such as “public safety” which may justify an exception or repudiation of
the doctrinal basis of the Miranda decision.

3.Pretrial Silence.

In Harris v. New York,163 the defendant upon direct examination denied having
made the charged sale of heroin to the undercover agent. He countered the officer’s
testimony as to the sale with testimony that he had sold the officer what appeared to
be heroin, but the bags contained only baking powder. The prosecutor was allowed
to impeach the defendant’s credibility by referring to a statement made by him to the
police which concededly made that statement inadmissible under Miranda. The
Court held that the pretrial statements obtained in violation of Miranda can be used
at trial for impeachment regardless of the contrary dictum in the Miranda case.164
This raised the issue of whether a defendant’s silence during custodial interrogation
can be used for impeachment purposes, in view of the dictum in Miranda165
advancing the concept that the prosecution cannot use this silence at trial.
In Doyle v. Ohio,166 the Court held that impeachment by the defendant’s post-
arrest silence after he had received the Miranda warnings was impermissible. The
Court said not only is “... every post-arrest silence ... insolubly ambiguous because
[it] ... may be nothing more than the arrestee’s exercise of [his/her] Miranda
rights,”167 but also, use of the silence to impeach “... would be fundamentally unfair
and a deprivation of due process....” considering the fact that the warnings carry the
implicit “... assurance that silence will carry no penalty ....”168
The Court distinguished Doyle v. Ohio in three subsequent cases. In Anderson
v. Charles,169 the Court allowed impeachment by prior inconsistent statements which
were given after the Miranda warnings. The Court said, Doyle bars the use against
a criminal defendant of his silence after receipt of governmental assurances that he

162 Id. at 305.
163 401 U.S. 222 (1971). See also United States v. Moore, 104 F.3d 377, 388 (D.C. Cir.


164 Id. at 224-25. See also Oregon v. Hass, 420 U.S. 714 (1975) (The same result was
reached, although here the suspect was advised of his right for which he then asked for
counsel but was questioned without his request being honored).
165 384 U.S. at 468 n. 37; 401 U.S. at 230-31 (Brennan, J. dissenting).
166 426 U.S. 610 (1976).
167 Id. at 617.
168 Id.
169 447 U.S. 404 (1980).

will suffer no adverse consequences of any sort for remaining silent.170 However, “...
Doyle does not apply to cross-examination that merely inquires into prior inconsistent
statements.”171 This “questioning [process] makes no unfair use of silence, because
a defendant who voluntarily speaks after receiving Miranda warnings has not been
induced to remain silent.”172
In Jenkins v. Anderson,173 where at his murder trial, the defendant claimed self
defense, the Court decided that it was permissible to impeach that story by the
defendant’s prearrest silence in not reporting the murder to the police for at least two
weeks. Likewise, in Fletcher v. Weir,174 the Court followed the rationale of Jenkins
and made a distinction between Doyle in allowing impeachment by the use of post-
arrest silence which was not proceeded by Miranda warnings, reasoning that this was
not “... a case where the government had induced silence by implicitly assuring the
defendant that his silence would not be used against him.”175 In effect, the Court held
that the silence of a suspect in custody prior to his receipt of Miranda warnings can
be admitted for impeachment based upon the following reasoning:
“The significant difference between the present case and Doyle is that the
record does not indicate that respondent Weir received any Miranda warnings176
during the period in which he remained silent immediately after his arrest....
In Jenkins, as in other post-Doyle cases, we have consistently explained
Doyle as a case where the government had induced silence by implicitly assuring177
the defendant that his silence would not be used against him....
In the absence of the sort of affirmative assurances embodied in the
Miranda warnings, we do not believe that it violates due process of law for a
state to permit cross-examination as to postarrest silence when a defendant178

chooses to take the stand.”
170 Id. at 408.
171 Id.
172 Id.
173 447 U.S. 231 (1980).
174 455 U.S. 603 (1982).
175 Id. at 606.
176 Id. at 605
177 Id. at 606.
178 Id. at 607.

Overcoming the McNabb/Mallory Rule

18 U.S.C. § 3501179 was meant to overrule the exclusion of voluntary180

confessions due to the Court’s ruling in McNabb v. United States, and Mallory v.
United States.181 The Senate Judiciary Committee conducted extensive hearings on
the effect of the Court’s rulings in McNabb and Mallory on crime and concluded
that they constituted the basis for “[t]he rigid, mechanical exclusion of an otherwise
voluntary and competent confession [and it] is a very high price to pay for a
‘constable’s blunder’.”182
The rationale of 18 U.S.C. § 3501 was stated as follows in the Senate
Committee Report:
[C]rime will not be effectively abated so long as criminals who have voluntarily
confessed their crimes are released on mere technicalities. The traditional right
of the people to have their prosecuting attorneys place in evidence before juries
the voluntary confessions and incriminating statements made by defendants183
simply must be restored.
The case of Escobedo v. Illinois ... set the stage for another most disastrous blow
to the cause of law enforcement.... This case... formed the basis for... Miranda
v. Arizona... In Miranda, the Supreme Court held that an otherwise voluntary

179 Section 3501 governs the admissibility of confessions brought in criminal proceedings
under federal jurisdiction. United States v. Alvarez-Sanchez, 511 U.S. 350, 354 (1994).
In subsection (a), federal judges are instructed to admit a confession if it “... was voluntarily
made ....” To determine the voluntariness of a confession, subsection (b) directs the trial
judge to:
“... take into consideration all the circumstances surrounding the giving of the
confession, including (1) the time elapsing between arrest and arraignment of the
defendant making the confession, if it was made after arrest and before
arraignment, (2) whether such defendant knew the nature of the offense with
which he was charged or of which he was suspected at the time of making the
confession, (3) whether or not such defendant was advised or knew that he was
not required to make any statement and that any such statement could be used
against him, (4) whether or not such defendant had been advised prior to
questioning of his right to the assistance of counsel; and (5) whether or not such
defendant was without the assistance of counsel when questioned and when
giving such confession. The presence or absence of any of the above-mentioned
factors to be taken into consideration by the judge need not be conclusive on the
issue of voluntariness of the confession.” § 3501(b).
180 See McNabb, supra note 30.
181 See Mallory, supra note 34; S.Rept. No. 1097, 90th Cong., 2d Sess. 40 (1968); Norfolk
v. Houston, 941 F. Supp. 894, 902 (D. Neb. 1995) United States v. Headdress, 953 F. Supp.

1272, 1292 (D. Utah 1996).

182 See S.Rept. No. 1097, supra note 181, at 38.
183 Id. at 37.

confession ... could not be used in evidence unless a fourfold warning had been184
The Committee is convinced ... that the rigid and inflexible requirements of the
majority opinion in the Miranda case are unreasonable, unrealistic, and
extremely harmful to law enforcement. ... The unsoundness of the majority
opinion was forcefully shown by the four dissenting justices, who also predicted
the dire consequences of overruling what theretofore had been the law of the185
[The Miranda] decision was an abrupt departure from precedent extending back
at least to the earliest days of the Republic. Up to the time of the rendition of
this 5-to-4 opinion, the “totality of circumstances” had been the test in our State
and Federal courts in determining the admissibility of incriminating statements....
Mr. Justice White’s dissent... demonstrates beyond question that ... warnings as
to constitutional rights were not required by the Constitution, and that the sole
test of admissibility should be “totality of circumstances” as bearing on186
The committee is of the view that the [proposed] legislation ... would be an
effective way of protecting the rights of the individual and would promote
efficient enforcement of our criminal laws. By the express provisions the
proposed legislation the trial judge must take into consideration all the
surrounding circumstances in determining the issue of voluntariness, including
specifically enumerated factors which historically enter into such a
determination. Whether or not the arrested person was informed of or knew his187
rights before questioning is but one of the factors.
The committee is aware that a few have expressed the view that legislation by
Congress restoring the voluntariness test to the admissibility of confessions and
incriminating statements would be declared unconstitutional, on the ground that
the provisions do not measure up to the rigid standards set forth in Miranda. The
committee is also aware that the opinions of the four dissenting Justices clearly188
indicate that neither of them would consider these provisions unconstitutional.
The committee feels that it is obvious from the opinion of Justice Harlan and
other dissenting Justices... that the overwhelming weight of judicial opinion in
this country is that the voluntariness test does not offend the Constitution or
deprive a defendant of any constitutional right. No one can predict with any
assurance what the Supreme Court might at some future date decide if these
provisions are enacted. The committee has concluded that this approach to the
balancing of the rights of society and the rights of the individual served us well
over the years, that it is constitutional and that Congress should adopt it, After
all, the Miranda decision itself was by a bare majority of one, and with
increasing frequency the Supreme Court has reversed itself. The committee feels

184 Id. at 41.
185 Id. at 46.
186 Id. at 48-49.
187 Id. at 51.
188 Id.

that by the time the issue of constitutionality would reach the Supreme Court, the189
probability rather is that this legislation would be upheld.
By replacing the McNabb/Mallory rule, Congress did not completely eliminate
the exclusion of confessions obtained during a delay in presentment. Instead,
Congress provided for a six-hour period in which the confession must be made or
given following the arrest or other detention.190 Confessions which have been
obtained up to six hours after arrest and before presentment are not to be considered
inadmissible by a delay in presentment.191 It should also be noted that when
Congress enacted the statute, it did not intend for every confession made after the six-
hour period to be inadmissible.192 Therefore, it would appear that 18 U.S.C. §
3501(c) has in effect rejected the McNabb/Mallory rule for confessions obtained
within six hours of arrest or detention. However, this will not be definitively
determined until a case comes before the Court which involves a confession made
more than six hours after arrest during a delay in presentment.
The Suspension in Implementation of Section 3501
In addition to the McNabb and Mallory line of decisions which subsection (c)193
overrules, section 3501 also stemmed from congressional reaction to Miranda. It
was stated that “[t]he legislation was designed to overrule Miranda v. Arizona and194
certain other decisions that were perceived to be detrimental to law enforcement.”
The Senate Report provided that “... crime will not be effectively abated so long as
criminals who have voluntarily confessed their crimes are released on mere
technicalities.”195 It also viewed the requirements of Miranda as “... rigid and
inflexible requirements [and they were] unreasonable, unrealistic, and extremely
harmful to law enforcement.”196
Not only was there tension between Congress and the Court over the Miranda
decision, there was also the lack of a warm reception for section 3501, following its
enactment, by the incumbent Administration. Upon signing the Omnibus Crime
Control and Safe Streets Act of 1968, President Johnson indicated in his statement

189 Id.
190 18 U.S.C. § 3501 (c) (1994).
191 Id.
192 Id.
193 One year after the Court decided the Miranda decision, Congress passed 18 U.S.C. §
3501, for the purpose of weakening the Miranda warnings. See The Jury And The Search
For Truth: The Case Against Excluding Relevant Evidence At Trial: Hearings Before Thethst
Committee On The Judiciary, 104 Cong., 1 Sess. 116 (1995).
194 Office of Legal Policy, United States Department of Justice, Report to the Attorney
General on the Law of Pretrial Interrogation (1986), reprinted in 22 U. Mich. J. L. Ref. 437,

512 (1989) (hereafter Office of Legal Policy).

195 S.Rept. 1097, supra note 181, at 37.
196 Id. at 46.

that he did not believe section 3501 was constitutional as it was intended and stated
that it was ambiguous.197 Excerpts from his signing statement are as follows:
“Title II of the legislation deals with certain rules of evidence only in Federal criminal
trials—which account for only 7 percent of the criminal felony prosecutions in this country.
The provisions of Title II, vague and ambiguous as they are, can, I am advised by the
Attorney General, be interpreted in harmony with the Constitution and Federal practices in
this field will continue to conform to the Constitution.
Under long-standing policies, for example, the Federal Bureau of
Investigation and other Federal law enforcement agencies have consistently
given suspects full and fair warning of their constitutional rights. I have asked
the Attorney General and the Director of the Federal Bureau of Investigation to198
assure that these policies will continue.”
Pursuant to this directive, the Attorney General informed the U.S. Attorneys to
submit for evidence only those confessions which complied with Miranda.199 As a
result of the effect which section 3501 had on the Administration, this probably
provided the basis for it not being used immediately following its enactment.200
In United States v. Leong,201 the Department of Justice, in response to an order202
from the U.S. Court of Appeals for the 4th Circuit, directing it to state its views
regarding the effect of 18 U.S.C. §3501 on the admissibility of Leong’s confession,203
its constitutionality, and its possible effects on Miranda, said that Miranda is the
law and it would not be appropriate for a lower court to apply the statute in lieu of204
Miranda’s requirements without the Supreme Court first reconsidering Miranda.
The Department also said that “[t]he Supreme Court ... is the final authority on the
scope and interpretation of constitutional provisions, and when ... the Court has
announced a constitutional rule based on its authority to explicate the Constitution,

197 4 Weekly Comp. Pres. Doc. 981, 983 (June 24, 1968).
198 Id. at 983.
199 See Gandara, Admissibility of Confessions in Federal Prosecutions: Implementation of
Section 3501 by Law Enforcement Officials and the Courts, 63 Geo. L. J. 305, 311-12
200 See Davis v. United States, 512 U.S. 452, 462-64 (1994)(Scalia, J., concurring). At a
minimum, Justice Scalia’s concurrence confirms that the Department of Justice continues
not to use § 3501).
201 116 F.3d 1474 (4th Cir. 1997)(Supplemental Brief No. 96-4876)(Unpublished
Disposition) The Court of Appeals affirmed the suppression by the U.S. District Court for
the District of Maryland of a confession by Tony Leong, who was arrested for the
possession of an illegal firearm without first being read his rights. The government did not
raise 18 U.S.C. §3501 and, following the decision dropped the case against Leong by not
petitioning for a rehearing en banc.
202 See Supplemental Brief, page 2.
203 See Supplemental Brief 2, page 5.
204 Id. at 6-7.

the Executive cannot properly urge lower courts to disregard that rule in favor of a
contrary rule established by Congress.205
Two years after Leong, the same court in United States v. Dickerson206 decided
that a confession is voluntary under the criteria set forth in 18 U.S.C. §3501 and it
is admissible in evidence in federal criminal trials even if the requirements of
Miranda are not satisfied. In the 2-1 ruling, the panel decided that the statute
superseded the landmark ruling in Miranda. The Fourth Circuit identified the
principal issue as whether the Miranda warnings are required by the Fifth
Amendment. If they are not according to the panel, they would be more like Federal
Rules of Evidence or “prophylactic” warnings which are not protected by the
Constitution for which Congress can modify or eliminate as it sees fit.207 If on the
other hand, the Fifth Amendment mandates the warnings, Congress can’t modify it
through the enactment of 18 U.S.C. § 3501. The panel held that Miranda is a rule
of law, and not an explicit constitutional requirement that defendants be told of their
right to counsel and to remain silent.208 It also decided that section 3501 was enacted
under Congress’ “... legislative authority ... to prescribe the rules of procedure and
evidence in the federal courts.”209 The Fourth Circuit, sitting en banc, could vacate
the panel’s decision or it may be appealed to the Supreme Court. Until such time,
federal law enforcement officials in the Fourth Circuit who fail to advise defendants
of their Miranda rights may still be able to use their voluntary statements. State
officials, however, remain bound by Miranda, because the statute only applies to
federal prosecutions.
On December 6, 1999, the Supreme Court granted certiorari in Dickerson v.
United States.210 Although the Justice Department prosecuted Dickerson, it took his
side in the case despite opposition from federal prosecutors around the nation. In
urging the Court to hear the case, Attorney General Janet Reno and Solicitor General
Seth Waxman recommended that the Court reaffirm Miranda for the sake of
precedent and public confidence in the fairness of the legal system.211 On June 26,
2000, the Supreme Court, in a 7-2 ruling, said in Dickerson v United States212 that the
police are still required to give the Miranda warnings. The Court said that the
Miranda warnings are more than prophylactic; the decision in itself represents rights
which are protected from unwarranted interrogation under the Fifth Amendment in

205 Id. at 24.
206 166 F.3d 667 (4th Cir. 1999). Upon hearing the news that his home was being searched
following a robbery, Dickerson confessed to driving the getaway car. Later, he moved to
suppress the evidence against him because he had been in custody, and the police had
interrogated him without first reading him his rights.
207 Id. at 689.
208 Id.
209 Id. at 691. 120 S. Ct. 578.
210 Cert. granted, 528 U.S. 1045 (1999).
211 See Dickerson v. United States, On Petition for Writ of Certiorari, Brief for the United
States, In the Supreme Court of the United States, No. 99-5525.
212 530 U.S. 428 (2000).

state and federal courts.213 Writing for the Court, Chief Justice Rehnquist stated that
“Miranda announced a constitutional rule that Congress may not supersede
legislatively”214 by enacting a long ignored 1968 law know as Section 3501. In
conformity with the rule of stare decisis, the Court said “we decline to overrule
Justices Antonin Scalia and Clarence Thomas dissented. Writing for the two,
Justice Scalia stated that the decision “... converts Miranda from a milestone of
judicial overreaching into ... [one] of judicial arrogance.”216
After Dickerson
In Missouri v. Seibert,217 Seibert was convicted of plotting to set a fire that killed
a teenager who had been staying at the family home. The police said she arranged
to have her home burned to cover up the death of her 12-year-old son, who had
cerebral palsy. Seibert had been worried that she would be charged with neglect in
her son’s death.
Seibert was questioned for about 40 minutes at 3:00 a.m. a few days after the
fire without first being given her Miranda warning. At the end of the interrogation,
she admitted the fire was set to cover up the death of her son. After a 20-minute
break, police read the Miranda warning, then turned on a tape recorder and
confronted her about the statements she had just made.
Seibert was convicted of second-degree murder, but she successfully appealed
to the Missouri Supreme Court to have the statements suppressed in court. The U.S.
Supreme Court upheld the ruling.
Testimony revealed that this two-stage questioning often works because
suspects may be more willing to talk before they are told they have a right to remain
silent.218 However, the Court noted a growing and worrisome trend in this technique
found in many national police training manuals and classes.219 As a result, the
practice raised the issue of whether the rule established in Oregon v. Elstad,220 that
a suspect who has once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the

213 Id. at 434-435.
214 Id at 437. Chief Justice Rehnquist delivered the opinion of the Court, in which Justices
Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer joined.
215 Id. at 443.
216 Id. at 465.
217 124 S.Ct. 2601 (2004).
218 124 S.Ct. at 2608.
219 124 S.Ct. at 2608-609.
220 470 U.S. 298 (1985).

requisite Miranda warnings, is abrogated when the initial failure to give the Miranda
warnings was intentional?
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, in a plurality
opinion, concluded that, the postwarning statements were not admissible. The test
used by the plurality was whether the intervening Miranda warnings, when
considered in conjunction with the police officer’s prewarning questions and the
admissions already made by the defendant, were effective in advising the suspect
regarding her postwarning rights.
In applying this test, the plurality focused on the defendant’s position and
emphasized several of the most excessive events during the “two-step interrogation”:
the interrogation took place in the station house; the questioning was “systematic,
exhaustive, and managed with psychological skill”; the prewarning interrogation
caused the suspect in a substantial manner to incriminate herself; and the
interrogating police officer did nothing to remedy the defendant’s likely
misimpression that her prewarning statements would be used against her. These
facts, said the plurality, served to distinguish this case from Oregon v. Elstad.221
The plurality held that their approach was not an application of the “fruit of the
poisonous tree” doctrine.222 However, Justice Breyer in concurrence wrote that “...the
plurality’s approach in practice will function as a ‘fruits’ test.”223 Justice Breyer
would also apply “... the following simple the two-stage interrogation
technique: Courts should exclude the ‘fruits’ of the initial unwarned questioning
unless the failure to warn was in good faith.”224
Concurring in the judgment, Justice Kennedy would apply a “narrower” test “...
in which the two-step interrogation technique was used in a calculated way to
undermine the Miranda warning.”225 “The admissibility of postwarning statements
should continue to be governed by the principles of Elstad unless the deliberate two-
step strategy was employed. If the deliberate two-step strategy has been used,
postwarning statements that are related to the substance of prewarning statements
must be excluded unless curative measures are taken before the postwarning
statement is made. Curative measures should be designed to ensure that a reasonable
person in the suspect’s situation would understand the import and effect of the
Miranda warning and of the Miranda waiver.”226 In other words, the Court left the
door open for police to use some confessions obtained after double interviews by
proving the interrogation was not done “... in a calculated way to undermine the
Miranda warning.”227

221 124 S.Ct. at 2611-612.
222 124 S.Ct. at 2610.
223 Id. at 42613.
224 Id .
225 2616.
226 Id..
227 Id.

Justice O’Connor, with whom Chief Justice Rehnquist, and Justices Scalia, and
Thomas joined dissenting, agreed with the plurality in two areas: the “fruit of the
poisonous tree” doctrine does not apply; and the subjective intent of the interrogating
officer cannot be easily determined and may be more complicated in other situations
which are likely to occur and therefore should be irrelevant.228 This would make it
difficult for lower courts to determine if officers had gone too far. Future courts
deciding on admissibility of such statements, she wrote, “... will be forced to conduct
the kind of difficult, state-of-mind inquiry that we normally take pains to avoid.”229
As opposed to the test adopted by the plurality, the dissent would adopt a different
test. If the prewarning admissions were involuntary, the postwarning admissions
should only be excluded under two circumstances: (a) following Elstad, if the first
statement is shown to have been involuntary “the court must examine whether the
taint dissipated through the passing of time or a change in circumstances” and (b) if
the postwarning statements were involuntary despite the Miranda warnings.230
The Court, in affirming the Missouri Supreme Court’s ruling in Seibert in which
the interrogating officer testified that he deliberately violated Miranda, upheld its
ruling in Dickerson v. United States,231 which affirmed that Miranda rights are
constitutionally based. The Court said: “Strategists dedicated to draining the
substance out of Miranda cannot accomplish by training instructions what Dickerson
held Congress could not do by statute.”232
In United States v. Patane233 the police officers failed to give the defendant
Miranda warnings after arresting him for violating a restraining-order and before
questioning him about a weapon which was recovered based on the defendant’s
voluntary statement that he possessed it. The defendant interrupted the police before
they could finish giving him his Miranda rights, asserting that he knew his rights.
The Court considered the issue of whether the failure to properly Mirandize the
defendant requires the suppression of the physical evidence which was obtained as
a result of the inadmissible, though uncoerced, questioning. The 10th Circuit ruled
in Patane’s favor, concluding that the confiscated gun could not be used as evidence
in court. The 10th Circuit based its decision on the landmark 2000 Supreme Court
ruling in Dickerson v. United States, which held that Miranda rights are
constitutional in nature, not merely prophylactic in application. Before Dickerson,
Miranda rights were seen as a mere safeguard to ensure that law enforcement
officials didn’t abuse their power to get suspects to confess.

228 Id..
229 Id. at 2619.
230 Id.
231 530 U.S. 428 (2000)(reaffirmed Miranda, holding that Miranda’s constitutional character
prevailed against a federal statute that sought to restore the old method of giving no
warnings and litigating most statements which were considered to have been given
232 124 S.Ct. at 2612.
233 72 U.S.L.W. 4643 (June 28, 2004).

An earlier Supreme Court case such as the Court’s opinion in Oregon v. Elstad
refers to the evidence resulting from an illegal search under the 4th Amendment as
“fruits of the poisonous tree,” which are not admissible in court. The 10th Circuit
ruled that the poisonous fruit doctrine also applied to confessions obtained in
violation of a defendant’s 5th Amendment protection against self-incrimination.
The government appealed, arguing that the poisonous fruit doctrine does not
apply to physical evidence obtained through an un-Mirandized confession. The
Supreme Court was asked to settle a disagreement that had arisen between the 10th
Circuit and other circuit courts over the past few years.
Justice Thomas, writing for a plurality, which included Justice, Scalia and Chief
Justice Rehnquist concluded that suppression was not necessary. The opinion is
based on the Court’s last term decision in Chavez v. Martinez,234 which held that the
Self-Incrimination Clause in the Fifth Amendment is not violated until a defendant’s
self-incriminating statements are sought to be admitted at trial.235 Because the failure
to provide Miranda warnings is not itself a constitutional violation, there is no
justification for fashioning a “fruit of the poisonous tree” doctrine in this context in
order to deter a non-Mirandized questioning.236
Justice Kennedy, with whom Justice O’Connor concurred in the judgment,
opined that the practical justifications for admitting the physical evidence in this case
were stronger than the justifications for admission in prior cases in which the Court
had permitted the admission of evidence obtained during an unwarned interrogation.
However, unlike the plurality, Justice Kennedy found it “unnecessary to decide
whether the detective’s failure to give [the defendant] the full Miranda warnings
should be characterized as a violation of the Miranda rule itself, or whether there is
‘[any]thing to deter’ so long as the unwarned statements are not later introduced at
Dissenting, Justice Souter writing for Justices Stevens and Ginsburg described
as “beside the point” the majority’s denial that the Fifth Amendment Self-
Incrimination Clause addresses the admissibility of nontestimonial evidence.238 The
real issue, Justice Souter wrote, is whether a “fruit of the poisonous tree” doctrine
should be applied lest we create an incentive for the police to omit Miranda
warnings.239 “In closing their eyes to the consequences of giving an evidentiary
advantage to those who ignore Miranda, the majority adds an important inducement
for interrogators to ignore the rule in that case.”240 Justice Breyer dissented

234 538 U.S. 760, 764-768 (2003).
235 124 S.Ct. at 2626.
236 Id.
237 Id.
238 Id.
239 Id.
240 Id.

separately, writing that he would extend the “fruit of the poisonous tree approach”
to the instant case.241
In Yarborough v. Alvarado,242 Detective Cheryl Comstock informed Maria
Alvarado that her son, Michael, may have seen something or known something about
an incident that had happened and could help with the investigation. Detective
Comstock picked up Mrs. Alvarado and her husband along with 17-year-old Michael
and went to the sheriff’s station for the interview at approximately 12:30p.m.
When Michael’s parents asked Detective Comstock if they could be present
during the interview, she denied their request.
What followed was a two-hour interview conducted solely by Comstock in a
room that was behind a locked door. During this time, Comstock questioned Michael
about the night of September 22, 1995, which left Francisco Castaneda dead from a
bullet wound. Comstock never told Michael that he was under arrest and did not give
him Miranda warnings explaining his 5th Amendment privileges against self-
incrimination. Nor was Michael given a statement to sign indicating that he was
voluntarily participating in the interview.
When Michael first explained his version of the events of the night in question,
he did not mention the shooting or his role in hiding the gun. When Comstock
“expressed disbelief” at Michael’s story and told him she had witnesses who had said
“quite the opposite,” Michael started relaying details of the shooting and the hiding
of the gun. It was only after Michael began divulging this information that Detective
Comstock informed him he would be free to go home after the interview.
Michael eventually explained the events that took place after midnight on
September 22. He, Paul Soto and some others went to a shopping mall in Santa Fe
Springs, California. There, they saw Castaneda’s truck and attempted to steal it.
Soto went to the driver’s side of the truck while Michael approached the passenger’s
side and Soto fired a shot killing Castaneda.
Two months later, Detective Comstock again called Maria Alvarado at work,
this time to inform her that Michael had been charged with second-degree murder
and attempted robbery.
Before trial, Alvarado moved to have the court exclude from trial the statements
he made to Detective Comstock because his parents were not allowed to be present
during the interview. The prosecution stated that Miranda warnings were not
required because Alvarado was not “in custody” during the interview. The 9th Circuit
Court of Appeals, held that because Alvarado was a juvenile who had never been
arrested and had no prior experience with law enforcement officials, and because his
parents brought him to the sheriff’s station and were not allowed to be present during
the interrogation, Alvarado was objectively “in custody” when he was questioned.
The court did not believe that “a reasonable 17-year-old in Alvarado’s position would

241 Id.
242 124 S.Ct. 2140.

have felt free to terminate the interview and leave, and ruled that the improper
admission of Michael’s incriminating statements by the state court had a substantial
and injurious affect on the subsequent jury verdict.243
The Court upheld the police interrogation by a vote of 5-4, in deciding that the
California courts had considered the proper factors in reaching its conclusion that
Michael Alvarado was not in custody for Miranda purposes during his police
Since the case was in the context of a federal habeas corpus petition, the issue
was not directly whether Michael Alvarado was in custody or not but whether the
state court’s decision that he was not was “unreasonable.” The majority, in
considering all of the facts, believed that it was not unreasonable for the courts to
conclude that he was not in custody: The police did not transport him to the station,
require him to appear at a particular time, threaten him or suggest he would be placed
under arrest; Alvarado’s parents remained in the lobby during the interview,
suggesting that the interview would be brief; police appealed to Alvarado’s interest
in telling the truth and being helpful to a police officer; police twice asked Alvarado
if he wanted to take a break; and, at the end of the interview, he went home.244
Although the Court concluded that the state failed to consider Alvarado’s age
and inexperience in deciding that the interview was not custodial, that in itself, it
said, would not make the state’s decision unreasonable.245
The dissent, written by Justice Breyer, concluded that Alvarado was clearly “in
custody” when the police questioned him and therefore entitled to Miranda warnings.
Justice Breyer posed the following question and facts: “what reasonable person in the
circumstances-brought to a police station by his parent at police request, put in a
small interrogation room, questioned for a solid two hours, and confronted with
claims that there is strong evidence that he participated in a serious crime, could have
thought to himself, ‘well, anytime I want to leave I can just get up and walk out?’”246
In Fellers v. United States,247 the Supreme Court was contending with standards
governing the admissibility of statements that emerge from two different
constitutional protections: (1) a “custodial interrogation” standard applicable to Fifth
Amendment self-incrimination cases (the typical Miranda situation and (2) the Sixth
Amendment right to counsel standard which is used to determine the admissibility
of statements made in the absence of counsel or a waiver of counsel. The Court held
that officers who went to the home of an indicted defendant to execute an arrest
warrant violated his right to counsel by discussing the charge against him in the
absence of his counsel. The petitioner, Fellers, was arrested at his home on an arrest

243 Id. at 2147.
244 Id. 2149-150.
245 Id. at 2152.
246 Id. at 2153.
247 124 S.Ct. 1019(2004).

warrant following a federal indictment. He made incriminating statements before
being advised of his rights, in response to comments by the police officers that he had
been indicted and they were there to discuss both the amphetamine indictment in
which he was charged and his association with other suspects. He was later
Mirandized at the police station and reiterated his admissions. The Eighth Circuit,
while acknowledging that the defendant’s incriminating statements made in response
to questioning at the time of the arrest must be suppressed, held that subsequent
confirming statements, made after the defendant received Miranda warnings at the
police station, did not have to be suppressed.
The Eighth Circuit concluded that even though the defendant, “responded by
stating that he had associated with the named persons and that he used
amphetamine,” the police conduct did not amount to “a post-indictment interview”
with the defendant (in violation of his Sixth Amendment right to counsel) and that
the second Mirandized statement, reiterating these inculpatory admissions, was
The issues presented to the Supreme Court were: (a) did the Eighth Circuit err
when it concluded that Feller’s Sixth Amendment right to counsel under Massiah v.
United States248 was not violated because he was not interrogated by government
agents when the proper standard under Supreme Court precedent is whether the
government agents deliberately elicited information from him, or must a formal
“interrogation” take place in order to establish the right to counsel; and (b) should the
second statements, preceded by Miranda warnings, have been suppressed as fruits
of an illegal post-indictment interview without the presence of counsel.
Writing for a unanimous Court, Justice Sandra O’Connor said the Eighth Circuit
Court of Appeals erred in holding that the absence of an “interrogation” foreclosed
petitioner’s claim that his jailhouse statements should have been suppressed as fruits
of the statements taken from him at his home.249 Under the Sixth Amendment,
“deliberate elicitation” is the proper standard, not whether there was
“interrogation.”250 Here, the officers deliberately elicited a response by Fellers after
he had been indicted, outside of his counsel’s presence, and without any waiver of
his Sixth Amendment rights.251 This violates Massiah v. United States.252 As a
result, the correct exclusionary rule analysis is under Massiah, and not Miranda.253
The difference between Massiah and Oregon v. Elstad254 appears to be that while
Elstad would permit statements that are knowing and voluntary, even if they are
poisonous fruits of any earlier Miranda violation, the Court has yet to allow Elstad
to be applied under the same circumstances to a Massiah infraction or breach. The

248 377 U.S. 201 (1964).
249 124 S.Ct. at 1020.
250 Id.
251 Id.
252 377 U.S. 201, 206 (1964).
253 124 S.Ct. at 1023.
254 470 U.S. 298 (1985).

Eighth Circuit was directed to consider the issue of whether the Sixth Amendment’s
exclusionary rule allows an exception similar to the Fifth Amendment’s exclusionary
rule recognized in Oregon v. Elstad.255 The Court’s decision also upholds the rule
that law enforcement officers’ contact with a defendant who has been formally
charged outside of his counsel’s presence does not have to rise to the level of a
formal “interrogation” for the contact to violate the Sixth Amendment right to
Regarding the second issue of whether the second statement, preceded by
Miranda warnings should have been suppressed as fruits of an illegal post-indictment
interview without the presence of counsel, the Court said the Court of Appeals
should address this issue on remand, considering the ruling that the first questioning
was unconstitutional.256 The Court appears to recognize that indicted individuals
have special rights but chose not to decide how far those rights extend.
Since the Fifth Amendment right against self-incrimination did not apply to the257
states until 1964, its relevance to the admissibility of pretrial statements was
limited to federal proceedings. In the earliest cases, beginning in the late nineteenth
century, issues of admissibility were decided on the basis of the rule excluding
involuntary confessions. During the early 1940s to the late 1950s, these issues were
viewed in terms of an exclusionary rule that the Court created to enforce the
requirements of federal statutory law that the accused be brought promptly before a
The inapplicability of the Fifth Amendment to the states prior to 1964 did not
mean that the interrogation process was free of federal judicial scrutiny. Those
coercive practices that were considered extreme were held to be inadmissible
pursuant to the Fourteenth Amendment due process clause. The germinal case,
Brown v. Mississippi, in which the Court overturned a murder conviction based upon
a confession that had been obtained through torture (hanging and whipping) was
considered a violation of the Fourteenth Amendment due process clause.
In the area of police procedures, two decisions had a very close and significant
relationship to the Miranda decision (Massiah v. United States and Escobedo v.
Illinois). The Massiah decision was notable for the extension of the right to counsel
to police interrogation. The Escobedo case, while grounded upon the Sixth
Amendment right to counsel, spoke without reservation of “the right of the accused
to be advised by his lawyer of his privilege against self-incrimination.”

255 Id.
256 124 S.Ct. at 1023 (The Court said the Eighth Circuit improperly conducted its “fruits”
analysis under the Fifth Amendment (custodial interrogation standard) rather than the
standards of the Sixth Amendment (right to counsel)).
257 See Malloy v. Hogan, supra note 26.

Two of the most famous elements of Miranda are the Court’s creation of a per
se right to consult with counsel during interrogation, and its creation of a per se right
to be informed that the privilege applies at the police station. The third most famous
element of Miranda is the Court’s determination that “prophylactic” rules are
necessary to reduce the inherent coercion which is prevalent in a majority of the
custodial interrogations.
Since the Miranda decision set forth the right to counsel in 1966, the Court had
not defined with sufficient clarity what was required in order to invoke the right to
counsel. The lower courts have adopted one of three approaches: the threshold-of-
clarity standard, the “per se invocation standard,” and the clarification standard.258
When the Court addressed the issue in Davis v. United States, many observers were
surprised when it chose the clarification standard which allowed the police to ignore
an ambiguous request for counsel and continue their interrogation.
Section 3501 of 18 U.S.C. was enacted as a result of the congressional reaction
to Miranda. The legislation was designed to overrule Miranda and certain other
decisions that were perceived to be detrimental to law enforcement.
The Court’s decision in Michigan v. Tucker appeared to declare that the
Miranda safeguards are no longer viewed as rights protected by the Constitution;
they were considered as Court imposed procedural rules. In view of the Court’s
decisions in Dickerson v. United States, which held that Miranda announced a
constitutional rule that Congress may not supersede legislatively nor may
“strategists” drain the substance out of the warnings by training instructors,259 the
Miranda warnings appeared to be stronger than at any time in their controversial
history. However, considering the decisions in the four cases (Seibert, Patane,
Fellers, and Alvarado) which were decided during the 2003-2004 term of the Court
(with two favoring law enforcement and the other two placing additional restrictions
on the police), it is difficult to determine what the current limits are with regards to
the guarantees under the Miranda decision.

258 See supra text accompanying notes 144-49.
259 See Missouri v.Seibert, 124 S.Ct. 2601(2004).