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    Why Post Miranda Rights Statements Must Be Voluntary


    Introduction – A key component of the Miranda decision is that – after the Miranda Rights have been waived – a determination of the both the waiver and the subsequent statement must be voluntary. This brief page addresses what makes a confession obtained by the police – a voluntary statement.

    Voluntariness Defined For “Mirandized” Statements

    If you give the Miranda warning, the suspect waives his rights, and the suspect makes an admission or confession, the confession is the most powerful piece of evidence as evidence of guilt in a criminal case.

    However, the statement will still be excluded if the judge determines it is involuntary. 

    Miranda Rights and Law Enforcement – Some Law On Voluntariness Of Confessions

    Two Basic Propositions

    1. Involuntary statements are suppressed for all purposes, including impeachment of the suspect should he take the stand, because they are inherently unreliable, and because their use in court is fundamentally unfair. 

    2. Statements are involuntary only if they are the product of coercive conduct by the police; the suspect’s state of mind is relevant only to show his vulnerability to police coercion, if any.

    Discredited Police Interrogation Tactics

    Two formerly used tactics, one is called the “two step” and “going outside Miranda” have met with unequivocal disapproval from the court.

    The Two Step Tactic:

    One is the “two step”, in which the officer interrogates a suspect without a Miranda warning. Then, after a statement is obtained, the officer gives the Miranda warning, obtains a waiver, and asks the suspect to repeat the statement.

    Going “Outside” Of Miranda:

    The other is “going outside Miranda”, in which the officer continues to question the suspect after a clear invocation of his rights, on the theory that at least the statement can be used for impeachment if the suspect takes the stand later.

    Statements obtained by either of these tactics are excluded and if admitted at trial, will likely be reversed on appeal.

    Types of Coercion

    While physical coercion is rarely an issue these days, psychological coercion is still very much an issue in today’s criminal jurisprudence. The determination of coercion in this context depends on balancing the circumstances of police pressure against the power of resistance of the suspect. See the case of Dickerson v. U.S. [2000] 530 U.S. 428)

    Police conduct or statements which exploit the vulnerability of a suspect is almost always found to be coercive.

    Circumstances Relevant To A Suspect’s Vulnerability To Coercive Tactics Are:

    • Age, especially if the suspect is very young (Yarborough v. Alvarado [2004] 541 U.S. 652)

    • Mental deficits (Reck v. Pate [1961] 367 U.S. 433)

    • Religious beliefs (People v. Kelly [1990] 51 Cal.3d 931)

    • Previous experience with criminal law (Fare v. Michael C. [442 U.S. 707)

     Circumstances relevant to the interrogation itself include

    • Whether or not there is a Miranda waiver (Berkemer v. McCarty [1984] 468 U.S. 420)

    • The number of officers doing the questioning (fewer is better) (Spano v. New York [1959] 360 U.S. 315)

    • The length of the interview (frequent breaks are recommended to avoid a defense of mental fatigue) (People v. Hill [1992] 3 Cal.4th 959)

    • The tone of the interview (keep the interrogation low key and responsive rather than aggressive and hostile) (People v. Jones [1998] 17 Cal.4th 279) 

    Threats and Promises By Police Interrogators

    Statements made by an officer that can be construed as a threat or a promise, whether express or implied, can form the basis of most motions to suppress. It doesn’t matter what the police officer meant – it matters what was actually said.

    BUT encouraging a suspect to tell the truth, or pointing out to the suspect a benefit which “flows naturally” from a truthful and honest course of conduct is not considered coercive. The problem arises when an officer’s statement appears to go beyond that, particularly when it relates to charging, sentencing, punishment, or custody.

     The following statements have been found not coercive:

    • We’ll tell the D.A. you were honest with us.

    • Help yourself by telling us what really happened

    • There’s no sense in going down as the triggerman in a robbery-murder if it was actually your co-defendant.

    • Stop lying and tell the truth.

    • Right now we’re going with the theory that it wasn’t an accident, that you killed him so he couldn’t identify you.

    • A show of remorse makes things easier.

    Compare these with the following statements, which went further towards threatening or promising a specific result, and were found to be coercive:

    • Tell your side of it, because if you just lie and cover up you won’t have a chance at probation.

    • We’re not leaving until you remember what happened (repeated during a lengthy interrogation)

    • If you tell a lie you’ll go to jail, but if you tell the truth you’ll get a citation.

    • A denial makes things go hard.

    The intelligent investigator stays away from the subject of charging and sentencing entirely. If the suspect raises the issue, the proper response is “that it’s the DA’s decision and you can’t make any promises.”

    The “Motivating Cause” For The Confession

    Ordinarily if coercive tactics are used, they will be regarded as the motivating cause for the statement. However, other factors can work against a “causal connection.”  If there is a significant time lapse between the police conduct and the defendant’s statement, or if the suspect expresses disbelief in the threat or promise, or if the suspect is just eager to talk , the statement could be deemed voluntary.

    Police That Use Lies and Deception – Not Necessarily Illegally Coercive

    As hard as it may be to believe the use of deception is not considered inherently coercive. As long as the lie is not the type of statement “reasonable likely to procure an untrue statement”, it’s not coercive

    Telling the suspect, falsely, that the police have physical evidence against him in the form of tire tracks, fingerprints, or positive eyewitness identification have all been found to be not coercive

    An example of a lie which was found to be coercive can be found in the following case. In People v Hogan (1982) 31 Cal.3d 815, an extremely distraught defendant expressed fear that he might be “crazy” and the police exploited that weakness by telling him repeatedly that he was both guilty and crazy and promised psychiatric treatment.

    Juries hate it when an officer lies, about anything. When a jury finds out an officer lied the officer instantly loses credibility with many jurors.

    Differences of Opinion On What Miranda Means

    Miranda v. Arizona may have been intended as a “simple” rule, but it has proven itself to be a full employment act for lawyers. For every interpretation of “custody”, “interrogation” or “voluntariness” there are dozens of cases to choose from over the last four plus decades, and the end result is that there is no clear rule that everyone agrees on.


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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
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