Constitutional Foundations of Miranda

The Miranda case dealt with the admissibility of statements made during custodial interrogation under the Fifth Amendment's privilege against compelled self-incrimination. Under Miranda, a person in custody must be told of the right to remain silent and warned that any statements can and will be used against the individual in court. Recognizing that even this warning will not by itself fully protect the average citizen from the pressures of custodial interrogation, the Supreme Court also requires that persons in custody be given the right to consult with a lawyer before and during interrogation and that this right to counsel be included in the warnings given by the police. Unless the person being interrogated receives the required warnings and waives their right to silence and counsel, no statements they make may be used in court.

When the Miranda rules are not followed, statements made by a suspect are not allowed as evidence for three reasons:

  1. to avoid the risk that statements were forced in violation of the defendant's Fifth Amendment rights;

  2. to encourage officers to comply with the Miranda rules, thereby lessening the future likelihood of compelled self-incrimination; and

  3. to discourage any police practices that tended to compel confessions from suspects.

The Constitution does not explicitly require such warnings or the exclusion of statements given in the absence of such warnings and waiver. However, a majority of the Court viewed custodial interrogations as an extremely intimidating and potentially unfair procedure. Fearing that the Fifth Amendment would become meaningless without warning suspects and informing them of the right to counsel, the Court determined that evidence which was the product of a confession without these warnings could not be used at trial. Textualists, those advocating a strictly text-based interpretation of the Constitution, criticize this methodology as judicial creation of rights.

The Four Miranda Warnings

If Miranda applies, a suspect must be given warnings before being questioned that indicate:

  1. You have the right to remain silent,

  2. Anything you say can and will be used against you in a court of law,

  3. You have the right to the presence of an attorney, and

  4. If you cannot afford an attorney one will be appointed for you prior to any questioning if you so desire.

Is Miranda Applicable?

Miranda does NOT apply unless a person is in custody and subjected to interrogation by a law enforcement officer.

A.  Custody


  • Custody requires a significant deprivation of liberty.

  • A person is in custody only if they are subjected to either formal arrest or its functional equivalent.

    • Formal arrest—occurs when a person is explicitly told they are being placed under arrest or is booked at the stationhouse.

    • Functional equivalent—occurs when a suspect is “deprived of his freedom of action in any significant way.”

Consider a reasonable person under the same conditions of the suspect:

  • Would a reasonable person under the same circumstances believe they were free to leave? (In other words: what would an average or typical member of the community think under the same circumstances?)

  • The Court is not trying to figure out what this particular suspect thought.

B.  Interrogation by a law enforcement officer

Even if the person is in custody, Miranda only applies if the suspect was interrogated by known law enforcement officers.


  • Interrogation—includes any direct questioning by officers about a crime under investigation and more subtle statements or conduct that are the functional equivalent of direct questioning

  • The functional equivalent of direct questioning is any speech or actions by an officer that they should have known were reasonably likely to elicit an incriminating response.

Determining the functional equivalent:

  • Reasonably likely:

    • Courts will deem it "interrogation" only if officers knew or should have known an incriminating response was reasonably likely.  (Note: What the officer should have known is judged from the perspective of a reasonable officer in the same situation.)

  • Officer's intent:

    • Courts will probably consider it to be interrogation if the officer actually intended that their words or conduct would elicit an incriminating response.

  • Officer's knowledge of the suspect:

    • Courts will usually treat it as interrogation if an officer was aware of —and exploited—a suspect's unusual weakness or fear.

Spontaneous, volunteered statements:

  • Spontaneous statements volunteered by the suspect without questioning are NOT considered the product of interrogation even if the suspect was in custody at the time.

C.  The Public Safety Exception to Miranda

The U.S. Supreme Court has ruled that Miranda warnings are unnecessary prior to questioning that is “reasonably prompted by a concern for the public safety.”

  • Consider whether a reasonable officer in the same position would conclude that there is a significant threat to the public safety

  • Example: interrogation that occurs as police try to locate a bomb they believe is set to go off

Flowchart for Examining Cases

A Miranda Checklist