Officers know when to advise suspects of their Miranda rights, but are sometimes unsure what actions to take if a suspect invokes the right to silence or the right to an attorney. Let’s try to grasp it all in a nutshell.
First of all, just a quick refresher that Miranda rights come into play when there is custodial interrogation. “Custodial” in this context does not necessarily mean under arrest. The “Miranda custody” test is whether a reasonable person in the suspect’s place would not feel free to leave. If not, the suspect is “in custody” for Miranda purposes. And interrogation means asking questions or engaging in actions reasonably likely to elicit an incriminating response.
Right to Silence: When an in-custody suspect invokes the right to silence, all interrogation must immediately cease. No further interrogation is permitted until (1) the suspect has been left alone for at least several hours, Miranda warnings are repeated, and a waiver obtained, or (2) the suspect initiates new discussion, Miranda warnings are repeated, and a waiver obtained, or (3) the suspect leaves Miranda custody, whereupon there is no requirement for Mirand warnings and waiver.
Right to Counsel: Before approaching a suspect to initiate interrogation, determine whether the suspect has previously invoked the right to counsel while in custody. There must have been a 14-day break in custody since invoking the right to counsel. This is the Shatzer rule, established by the U.S. Supreme Court in 2010. This rule permits the police to resume questioning a suspect 14 days after his/her release from police custody, even though the suspect invoked the right to counsel during his/her previous contact with the police. As we know, if a suspect in custody requests a lawyer, you must stop questioning. However, if the suspect is out of custody for at least 14 days and then re-interrogated, the suspect can be questioned again without a lawyer present, if Miranda warnings are repeated, and a waiver is obtained.
If the in-custody suspect asserts the right to counsel, cease all interrogation efforts immediately. No further interrogation efforts on anything until (1) legal counsel is present at any subsequent interrogation, Miranda warnings are repeated, and a waiver is obtained, or (2) the suspect initiates new discussion, Miranda warnings are repeated, and a waiver is obtained, or (3) in a case where the suspect has earlier invoked the right to an attorney, at least 14 days have elapsed after release from custody, Miranda warnings are repeated, and a waiver is obtained.
Sixth Amendment Right to Counsel for Charged Suspect: When a suspect is already charged, the Sixth Amendment right to counsel attaches. This right has nothing to do with custody or non-custody. Attachment of this right blocks further interrogation efforts only on the charged offense. You may still approach the suspect to discuss uncharged crimes. In such a situation, no interrogation efforts are permissible regarding the charged crime until (1) legal counsel is present, Miranda warnings are given, and a waiver is obtained, or (2) the suspect initiates a discussion with police regarding the formally charged crime, Miranda warnings are given, and a waiver is obtained. (Sometimes, however, a suspect in custody may have previously asserted under Miranda, which precludes interrogation efforts during the period of custody plus 14 days after release from custody.)
Voluntariness and Coerced Statements: Independent of Miranda and the Sixth Amendment right to counsel, an incriminating statement must be voluntary beyond a reasonable doubt and not compelled by coercion. Determining what constitutes coercion and when a statement is voluntary typically involves the interplay of three factors: (1) the conduct of the government agent (interrogator); (2) the susceptibilities of the suspect (confessor); and (3) the environment in which the activity (interrogation) takes place. Some coercion is so extreme and obvious that virtually any resulting statement is involuntary. Physical abuse and/or deprivation, threats and/or promises in exchange for a confession, and other extreme forms of will-bending are all likely to fall into this category. The standard upon which the voluntariness of an admission or confession is judged in Maine is proof beyond a reasonable doubt, a standard adopted by the Maine Law Court in 1972. That same year, the U.S. Supreme Court adopted the lesser standard of a preponderance of the evidence. However, Maine law requires proof beyond a reasonable doubt that statements to law enforcement are the product of the exercise of a suspect’s “free will and rational intellect.” There need not be a finding of coercive, improper, or incorrect conduct on the part of the police for a suspect’s statements to be judged involuntary in Maine.
If you have questions or situations you want to present to Brian MacMaster, email brian.macmaster@dirigosafety.com.