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Exceptions to Reading Miranda Rights

Cite this article as: Jason Mance Gordon, "Exceptions to Reading Miranda Rights," in The Business Professor, updated January 5, 2015, last accessed April 2, 2020, https://thebusinessprofessor.com/knowledge-base/exceptions-to-reading-miranda-rights/.
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Exceptions to Miranda Rights
This video explains when the police do not have to read miranda rights before taking a suspect's statement.

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Miranda Rights & Exceptions – What is the process for executing an arrest?

Once an individual is under arrest, the government agent (collectively referred to as “police officer” or “officer”) will generally make the individual aware of her constitutional rights against self-incrimination. The standard for the warning was laid out in the case of Miranda v Arizona. A “Miranda warning” is a written or verbal statement to the arrested individual substantially as follows, “You have 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 an attorney. If you cannot afford an attorney, one will be provided to you at no cost.” Once the police officer delivers the Miranda warning, anything that the defendant says in response to questions from the officer may be used in court. If the officer fails to advise the defendant of her rights, any statements made by the defendant pursuant to interrogation are not admissible at trial. There are, however, a number of exceptions to this rule:

  • Unsolicited Statements – If a defendant makes unsolicited statements to the officer, those are admissible at trial. This means that the defendant made statements voluntarily and without being interrogated.
  • Public Safety Exception – If there are exigent circumstances where public safety is at risk, this can justify government questioning prior to reading the Miranda warning. In such a situation, any statements made by the individual could be used against her in court.
  • Other Evidence Sufficient of Conviction Rule – If there is sufficient evidence to convict an individual without the use of the individual’s statements in violation of the Miranda rights, failing to appropriately deliver the Miranda warning and using subsequent statements in court will not disrupt the conviction.
  • Unequivocally and Assertively Request Counsel – If an individual does not request the presence of an attorney during interrogation, the Government does not have to immediately supply the individual with counsel. The request for counsel must be unequivocal.

The limited exceptions to the requirement to inform an accused of her Miranda rights are subject to some degree of controversy.

Discussion: What purpose do you think reading the Miranda rights serves? How effective is reading the Miranda rights in achieving this purpose? Do officers often fail to read an individual her Miranda rights following arrest? Can you think of a situation in which it may be a good tactic for the officer to not read the Miranda rights?

Discussion Input

  • Miranda warnings are meant to protect citizens by making sure that they are aware of their 5th (right to remain silent) and 6th amendment (right to an attorney) constitutional rights and can thus make informed decisions as to whether or not to waive or to invoke those rights. If an individual is unaware of their fundamental constitutional rights, they are likely to answer questions posed by law enforcement without an attorney present to their own detriment without realizing that they had any other options. Miranda warnings are also meant to be a safeguard against coercion of potential suspects by law enforcement officers and to ensure that all statements used against a defendant in court were made voluntarily and will not later be thrown out by a judge. However, being aware of one’s constitutional rights to remain silent and to an attorney is different from being able to fully exercise them. Many people are intimidated by law enforcement and, even if they know that they have the constitutional right to remain silent, they may still feel pressure to answer the officer’s questions out of deference to their authority or out of fear of angering them. Others may think that by answering the questions asked by law enforcement, they’ll be able to clear things up or get on the officer’s good side, especially if the officer frames answering a few questions as being in their best interest. Similarly, just because one has the right to an attorney doesn’t mean that they can afford to hire one. While public defenders are available in those situations, it would be hard to argue that even the best public defender juggling dozens of cases is able to provide the same high quality defense as privately obtained attorney who specializes in the particular area relevant to the defendant’s case.  With so many exceptions to the Miranda requirements, officers often are not required to read a suspect their Miranda warnings and, therefore, they often don’t. One situation in which law enforcement officers may strategically choose to not read a suspect their Miranda rights is when they have a suspect who is being talkative or nervously rambling without any questioning from or solicitation on the part of the officers. In this case, the statements made by the suspect are likely to be allowed to be used in court under the unsolicited statements exception. Thus, instead of reading the suspect their Miranda rights in order to question them and subsequently risking the suspect clamming up, law enforcement may opt to remain silent themselves and allow the suspect to continue incriminating themselves without their solicitation. 

Practice Question: Gwen is a police officer. She receives a call that there is a violent crime in process and that an individual is injured. The only other information she receives is the address of the alleged incident. Gwen arrives on the scene and notices Thomas sitting on the curb with his head hung down. Gwen jumps out of the car and yells to Thomas, “There has been a violent crime reported. Have you seen anything suspicious?” Thomas looks up and say, “I’m sorry. I didn’t mean to hurt her.” Gwen, realizing that Thomas is the alleged perpetrator replies, “Where is she?” Thomas replies, “I left her in the kitchen.” Gwen immediately handcuffs Thomas and radios in for assistance. She then rushes into the house and finds the victim on the floor. When the ambulance arrives, Gwen drives Thomas to the police station. She does not inform him of his Miranda rights. During the drive Thomas laments out loud about having hit the victim with a frying pan. Will Thomas’ statement made while sitting on the curb be used against him? What about the statements made while riding in the police car?

Proposed Answer

  • The statements that Thomas made while he was sitting on the curb are likely to be admissible in court under the public safety exception because Gwen was responding to a call regarding an ongoing violent crime at the time at which the statements were made. However, the statements that Thomas made while riding in the police car without being read his Miranda rights may not be admissible.  On one hand, there’s an argument to be made that Thomas’s statements in the police car are admissible under the unsolicited statements exception since Gwen was not questioning Thomas during the drive. However, others may argue that, since Gwen began questioning Thomas prior to putting him in the police car, she was required to read his Miranda rights once the threat to public safety subsided and, thus, his statements made during the ride are inadmissible as evidence against him. Another potential argument is that Thomas’s statements made in the police car are admissible under the other evidence sufficient for conviction exception. Since Thomas previously admitted guilt, it’s possible that he could be convicted without his later statements which would allow them to be used against him in court. 

Academic Research

Rossman, David, Resurrecting Miranda’s Right to Counsel (May 18, 2017). 97 B.U. Law Review 1127 (2017). Available at SSRN: https://ssrn.com/abstract=2970526 or http://dx.doi.org/10.2139/ssrn.2970526

Marcus, Paul, The Miranda Custody Requirement and Juveniles (May 15, 2018). Tennessee Law Review, Vol. 85, No. 253, 2018. Available at SSRN: https://ssrn.com/abstract=3175339

Magid, Laurie, The Miranda Debate: Questions Past, Present, and Future (Fall 1999). Published at 36 Houston Law Review 1251.. Available at SSRN: https://ssrn.com/abstract=208675 or http://dx.doi.org/10.2139/ssrn.208675

Howe, Scott, Moving Beyond Miranda: Concessions for Confessions (August 24, 2015). Northwestern University Law Review, Vol. 110, Forthcoming; Chapman University, Fowler Law Research Paper No. 15-11. Available at SSRN: https://ssrn.com/abstract=2650222

Corn, Geoffrey S., Miranda, Secret Questioning, and the Right to Counsel (April 16, 2013). Available at SSRN: https://ssrn.com/abstract=2251897 or http://dx.doi.org/10.2139/ssrn.2251897

North, Kristi, Recess is Over: Granting Miranda Rights to Students Interrogated Inside School Walls (April 4, 2012). Emory Law Journal, Vol. 61, No. 2, 2013, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2060550Dominguez, Maya, ‘Custody’ in Custody: Redefining Miranda Rights in Prison (March 21, 2011). American University Journal of Gender, Social Policy & the Law, Vol. 19, June 2011. Available at SSRN: https://ssrn.com/abstract=1798183

Leo, Richard A., Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles Posed by Miranda. Minnesota Law Review, Vol. 84, 1999. Available at SSRN: https://ssrn.com/abstract=1133226

Grossman, Steven P., Separate But Equal: Miranda’s Right to Silence and Counsel (Fall 2012). Marquette Law Review, Vol. 96, No. 1, Fall 2012, pp. 151-203.. Available at SSRN: https://ssrn.com/abstract=2496434 or http://dx.doi.org/10.2139/ssrn.2496434

Cohen, Beth, Miranda Revisited: Broadening the Right to Counsel During Custodial Interrogation — Commonwealth v. Sherman (1984). Suffolk University Law Review, Vol. 18, p. 99, 1984. Available at SSRN: https://ssrn.com/abstract=1971834

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