In the United States, the Miranda warning is a type of notification customarily given by police to criminal suspects in police custody (or in a custodial interrogation) advising them of their right to silence and, in effect, protection from self-incrimination; that is, their right to refuse to answer questions or provide information to law enforcement or other officials. Named for the U.S. Supreme Court's 1966 decision Miranda v. Arizona, these rights are often referred to as Miranda rights'''. The purpose of such notification is to preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings. The idea came from law professor Yale Kamisar, who subsequently was dubbed "the father of Miranda".
The language used in Miranda warnings derives from the Supreme Court's opinion in its Miranda decision. However, the specific language used in the warnings varies between jurisdictions, and the warning is deemed adequate as long as the defendant's rights are properly disclosed such that any waiver of those rights by the defendant is knowing, voluntary, and intelligent. For example, the warning may be phrased as follows:
The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of their Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment and the Sixth Amendment right to counsel, through the incorporation of these rights into state law. Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not ordinarily use that person's statements as evidence against them in a criminal trial.
Origin and development of Miranda rights
The concept of "Miranda rights" was enshrined in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision, which found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for armed robbery, kidnapping, and rape of an 18-year-old woman.
Miranda was subsequently retried and convicted, based primarily on his estranged ex-partner, who had been tracked down by the original arresting officer via Miranda's own parents, suddenly claiming that Miranda had confessed to her when she had visited him in jail. Miranda's lawyer later confessed that he 'goofed' the case by focusing too much on the constitutional issues (and losing sight of the jury and guilt or innocence).
The circumstances triggering the Miranda safeguards, i.e. Miranda rights, are "custody" and "interrogation". Custody means formal arrest or the deprivation of freedom to an extent associated with formal arrest. Interrogation means explicit questioning or actions that are reasonably likely to elicit an incriminating response. The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, the Court did create a set of guidelines that must be followed. The ruling states:
From Miranda rights, American English developed the verb Mirandize, meaning "read the Miranda rights to".
In Berkemer v. McCarty (1984), the Supreme Court decided that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which they are suspected or for which they were arrested.Berkemer v. McCarty,
Notably, the Miranda rights need not be read in any particular order, and they need not precisely match the language of the Miranda case as long as they are adequately and fully conveyed (California v. Prysock, California v. Prysock, 453 U.S. 355 (1981).).
In Berghuis v. Thompkins (2010), the Supreme Court held that unless a suspect expressly states that they are invoking this right, subsequent voluntary statements made to an officer can be used against them in court, and police can continue to interact with (or question) the alleged criminal.
In Vega v. Tekoh (2022), the Supreme Court held that police may not be sued for failing to administer Miranda warnings, and that the remedy for such a failure is the exclusion of the acquired statements at trial.
The warnings
Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person arrested or placed in a custodial situation. The typical warning states: You have the right to remain silent and refuse to answer questions. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, the court will appoint one for you before any questioning if you wish. If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if they understand their rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but in Berghuis v. Thompkins (2010), the Supreme Court ruled 5–4 that police are allowed to interrogate suspects who have invoked or waived their rights ambiguously, and any statement given during questioning prior to invocation or waiving is admissible as evidence. Evidence has in some cases been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.
While the exact language above is not required by Miranda, the police must advise the suspect that: they have the right to remain silent; anything the suspect does say can and may be used against them in a court of law; they have the right to have an attorney present before and during the questioning; and they have the right, if they cannot afford the services of an attorney, to have one appointed, at public expense and without cost to them, to represent them before and during the questioning. There is no precise language that must be used in advising a suspect of their Miranda rights.Brown v. Crosby, 249 F. Supp. 2d 1285 (S.D. Fla. 2003). The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect.While a "talismanic incantation" of the exact language of the original Miranda warnings is not required, [Bloom and Brodin, Criminal Procedure, 5th ed. (Aspen 2006) 268] deviations and omission can result in suppression of the statement. The suspect may be advised of their rights orally or in writing.U.S. v. Labrada-Bustamante, 428 F.3d 1252 (9th Cir. 2005). Also, officers must make sure the suspect understands what the officer is saying, taking into account potential education levels. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.
The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights. For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise the right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights. For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely a right to have a lawyer present while the suspect is being questioned. The right to counsel includes: the right to talk to a lawyer before deciding whether to talk to police, if the defendant decides to talk to the police, the right to consult with a lawyer before being interrogated, the right to answer police only through an attorney.Gregory Declue, Oral Miranda warnings: A checklist and a model presentation, The Journal of Psychiatry & Law (2007) at 421.
Circumstances triggering the Miranda requisites The circumstances triggering the Miranda safeguards, i.e. Miranda warnings, are "custody" and "interrogation". Custody means formal arrest or the deprivation of freedom to an extent associated with formal arrest. Interrogation means explicit questioning or actions that are reasonably likely to elicit an incriminating response. Suspects in "custody" who are about to be interrogated must be properly advised of their Miranda rights—namely, the Fifth Amendment right against compelled self incrimination (and, in furtherance of this right, the right to counsel while in custody). The Sixth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent—the right to refuse to answer questions or to otherwise communicate information.
The duty to warn only arises when police officers conduct custodial interrogations. The Constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once an officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation. Custody and interrogation are the events that trigger the duty to warn.
Use in various U.S. state jurisdictions Some jurisdictions provide the right of a juvenile to remain silent if their parent or guardian is not present. Some departments in New Jersey, Nevada, Oklahoma, and Alaska modify the "providing an attorney" clause as follows:
Even though this sentence may be somewhat ambiguous to some laypersons, who can, and who have actually interpreted it as meaning that they will not get a lawyer until they confess and are arraigned in court, the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states.Duckworth v. Eagan, (upholding use of sentence by Hammond, Indiana police).
In Texas, New Mexico, Arizona, and California—the four states that border Mexico—suspects who are not United States citizens are given an additional warning:
After issuance of Miranda warnings, the police may ask waiver questions. Common waiver questions, which may be included on a written warning card or document, are,
An affirmative answer to both of the above questions waives the rights. If the suspect responds "no" to the first question, the officer is required to re-read the Miranda warning, while saying "no" to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived.