Conclusions of Law Regarding Miranda Taken from Recent Judge Kimbler Decision

Note from Judge Kimbler: Below are conclusions of law taken from a recent journal entry denying a motion to suppress. I am posting this part of the decision because I thought that lawyers who do criminal law might have a use for it. Note that the decision that these conclusions of law are taken from is subject to a possible appeal.

Conclusions of Law

The Fifth Amendment’s right against self-incrimination is made applicable in state criminal prosecutions through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653. The Fifth Amendment’s right against self-incrimination doesn’t just apply to criminal prosecutions, but also to police investigations. This is because, as the Court noted in the Miranda decision, “[I]t is now axiomatic that he defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544 (1961); Wan v. United States, 266 U.S. 1 (1924).” Footnote 33, 384 U.S. at 464, 86 S. Ct. at 1623, 16 L.Ed.2d at 717.

In order to make sure that confessions or statements made to the police were voluntary, the United States Supreme Court in Miranda v. Arizona, supra, held that police have to advise suspects “[A]t the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.” Miranda, 384 U.S. at 468, 86 S.Ct. at 1625, 16 L. Ed. 2d. at 720. The Court went on to require that the suspect be told “that anything said can and will be used against the individual in court.” Miranda, 384 U.S. at 469, 86 S. Ct. at 1625, 16 L. Ed. 2d. at 720.

The Court then held that a suspect facing police interrogation has a right to not merely consult with an attorney, but to have one present while the questioning is taking place. The Court explained it this way: “Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” Miranda, 384 U.S. at 470, 86 S. Ct. at 1625-1626, 16 L. Ed. 2d.at 721.

Because the right to counsel doesn’t depend on the financial ability of the suspect to retain counsel, the Court wrote the following: “In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent -- the person most often subjected to interrogation -- the knowledge that he too has a right to have counsel present.” Miranda , 384 U.S. at 473, 86 S. Ct. at 1627, 16 L. Ed. 2d. at 723.

The Court also held that if a suspect starts answering questions, but at a later point, he or she wishes to invoke their Fifth Amendment right against self-incrimination, then the police must respect that wish and stop the interrogation. This was how the Court put it: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Miranda, 384 U.S. at 473-474, 86 S.Ct. at 1627-1628, 16 L. Ed. 2d. at 1627-1628, 16 L.Ed. 2d at 723.

The Court also held that the prosecution has the burden of showing that any statements taken from a suspect were taken after he or she had been advised of the above rights and had decided to waive those rights. Miranda, 384 U.S. at 475, 16 L.Ed. 2d. at 725, 16 L. Ed. 2d. at 724.

A suspect's waiver of his Fifth Amendment right to legal counsel and against self-incrimination must be shown before her statements are admissible at trial. Waivers must be voluntary and intelligent. Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. The court must "indulge in every reasonable presumption against waiver." Brewer v. Williams (1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424. The test to determine whether a knowing and intelligent waiver was made requires an inquiry into the totality of the circumstances. Miranda v. Arizona (1966), 384 U.S. 436, 475-77, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The totality of the circumstances includes the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards (1976), 49 Ohio St.2d 31, 40-41, 358 N.E.2d 1051.