A meander through Miranda

Overview
The Miranda warning is a procedural safeguard to ensure that criminal suspects are appraised of their 5th Amendment right against self-incrimination in criminal matters, and that they are reminded of their 6th Amendment right to counsel in criminal matters.

The reading of your Miranda rights is not required by the U.S Constitution.  However, in Miranda v Arizona, the U.S. Supreme Court created a presumption that custodial interrogation by police is inherently coercive, enough to intefere with your 5th Amendment right against self-compelled incrimination in criminal matters.

As a result, the Court created the Miranda warning, and the requirement that police recite it, in order to provide a necessary procedural safeguard against this presumption.

Definition
Police must recite the Miranda warning to suspects of an alleged criminal act, when those suspects are subject to a 1) custodial 2) interrogation by the police.

Whether on the Multistate or in an essay, you *must* analyze these two prongs, for *each* criminal charge.

Custody
Typically, you are in custody if you believe you are not free to leave, or your freedom of movement is reasonably restricted. Clear examples are when you are handcuffed or told you are under arrest.

The interesting examples, upon which you will most likely be tested, though, are the ones where you are not restrained or placed under arrest. Instead, you are simply asked to wait in your car while the police officer questions another driver, or calls in a drug-sniffing dog, to name a few examples.

Interrogation
Usually associated with "express questioning" or functional equivalent, where a police officer asks you questions "reasonably likely to elicit an incriminating response."

The opportunity to argue if the questioning constituted an "interrogation" is frequently essay territory.

When your "right to remain silent" is implied under Miranda
You do not need to expressly invoke your 5th Amendment right against compelled
self-incrimination where some form of official compulsion denies you a "free choice to admit, to deny, or to refuse to answer." Garner v. U.S, 424 U.S at 656-657.


When you must expressly invoke you "right to remain silent"
Once you have waived your Miranda rights, you are no longer covered
by its protections until you expressly invoke them.

Invoking your Miranda rights
You must state this 1)clearly and 2) unequivocally (more important buzz words). A nod of the head or a "thumbs up" sign by a suspect is usually not enough.

Once you invoke your Miranda rights, police interrogation must immediately cease.

Waiving your Miranda rights
Your statement expressing your desire to waive your Miranda rights must be 1) voluntary 2) knowing and 3) intelligent. These are important keywords to mention and briefly discuss with any fact pattern involving a waiver of Miranda rights.

Terminating interrogation, and resuming/ re-engagement of interrogation
When a suspect invokes their 5th Amendment rights, they are also free  to waive them thereafter, and re-invoke them, (lather/rinse/repeat, etc.)

Be on the lookout for fact patterns where the suspect starts volunteering information a few minutes after invoking their Miranda rights, and then states "I've said enough already, I need a lawyer!" At this point, the police must again cease interrogating the suspect.

Exceptions
The public safety exception relaxes the requirement that police recite the Miranda warning prior to custodial interrogation.  Based on public policy, police have fairly wide latitude when exigent circumstances (emergencies) exist.

This is frequently a matter of intense debate. The questioning of one of the suspects in the aftermath of the recent Boston Marathon bombings brought this exception front and center in the media over the last 3-4 months.

Miranda and the Fruit of the Poisonous Tree doctrine
An ill-applied or non-existent Miranda warning will often result in a suspect's criminal testimony being "thrown out," or inadmissible during the prosecutor's case-in-chief against the suspect.

However, your otherwise inadmissible statements can still be used against you for impeachment purposes, such as during cross-examination. (Sidebar: this is one of many good reasons as a defense attorney to discourage your defendant from testifying under oath, or "taking the stand.")