Search and Seizure Manual

Miranda and the Law
The Fifth Amendment

A Legal Update

Sixth Edition

July, 2020

Table of Contents

Robert C. Phillips
Deputy District Attorney (Ret.)
858-395-0302 (C)
[email protected]

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© 2020 Robert C. Phillips. All rights reserved

This Outline has been prepared and published for the purpose of aiding law enforcement officers,
police and private investigators, law enforcement administrators, prosecutors, the judiciary, other
attorneys including but not limited to those engaged in the practice of criminal law, students, and
legal educators and scholars of any sort, in accessing, using, and understanding the field of Fifth
Amendment self-incrimination and Miranda v. Arizona. As such, permission is expressly granted
by the author to the above listed persons, or anyone else, to use, reproduce, cite, and/or employ
in the field of law enforcement, education, or instruction, any or all of this Outline, provided the
source is properly and correctly identified, and, more importantly, except when done for
commercial purposes or for personal profit.

The information provided in this Outline is a summary of various aspects of the Fifth
Amendment’s Self-Incrimination privilege, particularly as they apply under the landmark United
States Supreme Court case decision of Miranda v. Arizona. In many respects, this Outline
represents no more than the author’s opinions, interpretation and conclusions concerning the
various topics discussed. Readers are advised not to rely upon the information provided in this
publication without first researching and verifying the legal rules and issues intended to be used.
This Outline is not intended to be a substitute for the reader’s own professional judgment and
legal research. The author expressly declines to accept any legal responsibility or liability for a
user’s failure to properly research and verify the continued validity, expressed conclusions, or
correctness, of any of the cases, rules, conclusions, or opinions contained in this Outline. In
other words, your use of this Outline is at your own personal risk.

Comments concerning errors, perceived misinterpretations, and/or other suggestions for
correcting, expanding, or improving the information provided in this Outline are respectfully
solicited, and should be directed to the author.

Robert C. Phillips
Deputy District Attorney (Retired)
[email protected]
858-395-0302

How To Use This Manual: To locate the law or rule on any particular subject of interest to

you, it is suggested that you proceed as follows:

 First note the general description of the subject you are looking for under “Chapter
Summary,” on page iii, below.

 This will guide you to the correct page of the Table of Contents under “Topics,”
beginning on page iv.

 Under “Topics,” which is divided by Chapter, you will find a more detailed description
of the various legal topics and issues.

 This in turn lists for you the specific page number in the expanded outline where you will
find the relevant cases and rules on that topic or issue.

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© 2020 Robert C. Phillips. All rights reserved

Chapter Summary Pg.
1
Outline 2
Chapter 1: The Fifth Amendment and Miranda
Chapter 2: Custody 49
Chapter 3: The Custodial Interrogation 104
Chapter 4: Law Enforcement 129
Chapter 5: Lawful Exceptions to the Miranda Rule 138
Chapter 6: The Admonition 190
Chapter 7: Invocation of Rights 233
Chapter 8: Waiver of Rights 323
Chapter 9: Voluntariness After Waiver 373
Chapter 10: Juveniles & Miranda 412
Chapter 11: Public Employees Subject to Administrative Investigations 435
Chapter 12: Evidentiary, Hearsay, and Confrontation Issues,
441
and a Defendant’s Statements 453
Chapter 13: Suppression Issues and Procedures

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Topics

Pg.

Outline 1

Chapter 1: The Fifth Amendment and Miranda: 2

The Fifth Amendment: 2

The Fifth Amendment 2

Self-Executing: 2

General Rule 2

Exceptions 2

Question: Why Do People Waive their Rights and Incriminate Themselves? 2

The Need for Interrogations 3

The Limitations: 4

Fifth Amendment Self-Incrimination 4

Fifth and Fourteenth Amendment Due Process 5

The “Miranda Rule:” 5

Pre-Miranda: History and Development of Pre-Miranda Landmark Cases: 5

Early Common Law 5

Pre-Miranda Landmark Cases 6

Voluntariness Becoming the Issue 7

Applicability of the Fifth Amendment to the States: 9

Rule 9

Federal Principles vs. “Independent State Grounds;” Proposition 8: 9

Substantive Rules 9

Procedural Rules 10

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© 2020 Robert C. Phillips. All rights reserved

Applicability to the Military 10
The Post-Miranda Rule 10
History: 11
11
The Miranda v. Arizona Case 11
Cases Joined with the Miranda Decision 12
Shared Salient Features 12
Inherent Coerciveness of the Custodial Interrogation: 12
Physical Brutality 13
Psychological Effects 13
Inherent Coerciveness 14
Miranda as a Constitutional Principle: 14
Miranda: “Constitutional” or “Prophylactic” Rule? 16
Dickerson v. United States: 16
Rule Prior to Dickerson 16
Facts 17
Result 17
The Ninth Circuit Court of Appeal 17
What does Dickerson mean? 17
Chavez v. Martinez 18
United States v. Patane 20
Fourteenth Amendment “Due Process” 20
Dickerson’s Effect upon the Legal Exceptions to Miranda

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Why Prosecutors and Police Officers Should be Concerned; 21
Applicable Professional and Ethical Standards: 21
21
General Principles: 21
21
Prosecutors 21
22
Law Enforcement Officers 23
23
Courts’ Condemnation of Intentional Miranda Violations: 24
26
The United States Supreme Court 26
26
The California Supreme Court 27
27
The Ninth Circuit’s Opinion 31
31
Other Decisions 32
33
Legal Effects of Dickerson 33
33
Miranda Violations as a Due Process Issue: 33

Due Process

How does Neal square with Chavez?

Totality of the Circumstances

Purposes of Miranda

Scope of the Miranda Rule:

Limited to Governmental Compulsion

Asserting the Privilege In Prior Proceedings

Documents:

Rule

Exceptions:

Bank Records

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© 2020 Robert C. Phillips. All rights reserved

Corporations 34
Tax Returns 35
Marijuana Entities 35
Passwords to Electronic Devices 36
Use of Biometric Features In Lieu of Passcodes 37
The “Foregone Conclusion” Doctrine 39
Real and Physical Evidence 42
Burden of Proof 42
Limitations on the Need for Miranda 42
Guarding Against a False Confession 44
Miranda Becoming Routine Practice 45
Incompetence of Counsel 46
Prerequisites to a Miranda Admonishment: 46
The Three Legal Prerequisites: 46
Custody 46
Interrogation 46
Law Enforcement 46
Analyzing the Prerequisites 46
Tactical Advice 47
Chapter 2: Custody: 49
The Non-Custodial Interrogation: 49
Rule 49

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The Custodial Interrogation: 50
Definition of “Custody:” 50
Rule 50
Test 50
Case Law 51
Objective vs. Subjective Test 52
Age of a Minor 53
The “Focus of Suspicion” Fiction 54
Factors in Determining Custody: 55
Evaluating the Circumstances 55
Totality of the Circumstances 56
The Ninth Circuit Court of Appeal’s Opinion 58
Witness or Suspect 59
The Gladys R. Questionnaire 60
Location as a Factor: 60
The Suspect’s Home or Place of Business 60
In Public 62
In a Police Car 64
In a Police Station 66
Fourth Amendment Custody vs. Fifth Amendment Custody 68
Burden of Proof 69

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Detentions: 69
On-The-Scene Investigations; Investigatory vs. Accusatory Questioning 69
Examples Where “Custody” is Lacking: 71
Traffic Stops 71
Traffic Stops to Investigate Criminal Activity 72
Pre-Arrest Phase of a D.U.I. Stop 72
Investigating a traffic collision 72
Investigations of Criminal Activity 73
Drug Investigations 76
Voluntary Responses 76
Curbstone Lineup Detentions 76
Customs Inspections 76
Deportation Interviews 77
Probation Violations 77
Defendant Registering as a Sex Registrant 77
While Transporting to a Police Station 77
Over the Telephone 79
When Already Lawfully Imprisoned 79
Examples Where “Custody” was Found 79
Detentions vs. Arrests: 80
Indicators of an Arrest: 80
At Gunpoint 80
In Handcuffs 80

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Putting the Suspect Into a Patrol Car 80
During an Overwhelming, Excessive Show of Force 80
A Non-Consensual Transportation 81
Reversing the Effects 81
Misdemeanor Citations 82
Consensual Encounters 82
Grand Jury Proceedings 83
The “Beheler Admonishment;” or Taking the “Custody” Out of An Interrogation: 83
The Beheler Interrogation Tactic 83
Effects on the Custody Issue 84
Factors 84
Appellate Authority 85
Exceptions 89
Practice Notes 91
Removing the Indicia of an Arrest 92
Miranda Invocations by the Out-of-Custody Suspect: 93
Issue 93
Rule 93
Miranda and the Jail Inmate: 94
General Rule 94
Recent Trend 94
Factors 96
Examples 97

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Prison/jail Witnesses 101
The “Beheler Admonishment” in the Jail Setting: 101
101
Interrogation Tactic 102
In the Jail Context 102
During Wiretaps: 102
Rule 102
During Telephone Interviews: 102
Rule 103
Cases 103
On Appeal 104
Chapter 3: The Custodial Interrogation: 104
Interrogations: 104
Rule 104
Definition 105
Limitations 106
Interrogation vs. Interview: 106
Use and Purpose 106
The Reid Interrogation Technique: 106
107
John E. Reid & Associates 108
Under the Reid Technique 109
Further Criticism 109
When Not to Interrogate:
Specialization Required

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Combative Subjects 109
Exception; Juveniles 109
Interrogation vs. Questioning 109
Non-Custodial Conversations 110
The “Functional Equivalent” of an Interrogation: 111
Definition 111
Factors 111
Examples 112
Examples of No Interrogation 112
Functional Equivalent-Related Issues: 114
DUI (or DWI) Cases 114
Consent to Search 115
Gang Affiliation Questions 116
Booking Questions 116
Brief Informational Questions 116
Reverse Lineups 118
Wiretaps 119
During Civil Proceedings 119
Questioning as a Witness 119
Volunteered Statements: 120
Rule 120
Examples 121
After Already Invoking 122

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Recording Interrogations: 123
General Rule 123
Other States 124
Murder Suspects, per P.C. § 859.5: 124
Pen. Code § 859.5 124
Case Law 128
129
Chapter 4: Law Enforcement: 129
Law Enforcement and Agents of Law Enforcement: 129
129
Rule 129
Who is Law Enforcement or Agents of Law Enforcement? 129
131
Peace officers 132
Agents of Law Enforcement 133
Probation Officers 133
Parole Officers 133
Private Citizens and other Non-Law Enforcement: 133
Rule 133
Examples of non-law enforcement: 133
A Privately Employed Fire Investigator 133
High School Principal 133
Family Physician 133
Hospital Security Guard
News Reporter
A Doctor

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An Emergency Room Physician 133
A Prosecution Psychiatrist 133
Foreign Officials 134
Victim of a Crime 134
Store Security Guards 134
The Defendant’s Employer 134
Group Supervisor at Juvenile Hall 134
Social Worker 134
Bounty Hunters 135
An Off-Duty Law Enforcement Officer 135
Parent of the Minor Suspect 135
Foreign Officials 136
Other Instances of Questioning by Non-Law Enforcement 136
While on Supervised Release 136
Indian Tribes 137
Exception: Involuntary Statements 137
Chapter 5: Lawful Exceptions to the Miranda Rule: 138
Exceptions to Miranda 138
Impeachment: 138
Rule 138
The Issue of the Intentional Miranda Violation 139
The Issue of Coercion: 141
Rule 141

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What is Coercion? 142
142
No Coercion 143
144
Interrogations with Physical, Mental, or Psychological Coercion 146
146
Intentional Violations with Misleading or Minimal Pressure 148
149
No Duty of the Court to Instruct 149
150
The “Widespread Police Departmental Policy and Training” Issue 151
151
Exceptions to the “Coercion” Rule 152
152
Fruit of the Poisonous Tree:
154
Rule 154
154
Examples 154
154
Exception; Unlawfully Induced Testimony 154
155
California Rule 155
155
Other Jurisdictions

Dickerson v. United States and the Fruit of the Poisonous Tree Doctrine

Statements in Violation of Miranda as Probable Cause
in a Search Warrant Affidavit

Statements in Violation of Miranda as Probable Cause to Arrest

Statements in Violation of Miranda used to Establish Consent to Search

Statements in Violation of Miranda used to Revoke Parole or Probation

Public Safety Exception:

Rule

Test

Examples:

Firearms and Other Weapons

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Officers’ Safety 156
157
Defendant’s Safety 158
158
Booking Questions 159
159
Other Instances 160
160
Before or After an Invocation 160
160
Exceptions 160
161
Irrelevancy of The Intent of the Officer 161
162
Continuing Validity 162
162
Rescue Doctrine: 163
163
Rule 165
165
Test 166
167
Time Parameters of the Rule 167

Before or After an Invocation

Subject Reinitiates Questioning:

Rule

Limitations

Continued Applicability after Dickerson

The Need for a New Admonishment and Waiver

Scope of the Rule

Examples where Reinitiation Upheld

Example where Reinitiation Not Upheld

Subject Released from Custody:

Rule

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Limitation: The 14-Day Rule 168
Subject Invoked his “Right to Remain Silent” Only: 169
169
Rule 169
As to a Different Case 169
As to the Same Case: 170
171
Relevant Cases 172
Factors 173
Limitations 173
An Anticipatory Invocation: 174
Rule 175
Case Law 175
Limitation 175
Counsel is Present: 176
Rule 176
Routine Booking Questions: 176
Rule 178
Case Law 179
Factors 181
Responses to Booking Questions Upheld
Limitation; Gang Affiliation 184
Collection of Physical, Verbal (Non-Testimonial) or Visual Evidence 184
Not Prevented by the Fifth Amendment:
Rule

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Examples: 184
184
Blood Samples 185
185
Urine Samples 185
185
Handwriting Exemplars 185
185
Live Lineups, Wearing Certain Clothing and Repeating Phrases 185
185
Repeat Words or Phrases 185
185
Read Aloud from a Wiretap Transcript 185
185
Trying on Clothing 185
186
Putting on a Stocking Mask 186
186
Wear a Fake Goatee
186
Shaving his Beard and/or Mustache 187
187
Completing a Voice Exemplar 188
188
Reenacting a Robbery

Standing and Giving His Name in Court

Giving Consent to Search

Tax and Corporate Records

Bank Records

Hit and Run Statutes

Being Required to Incriminate Oneself as a Probation or Parole Condition;
Split of Authority

Questioning by an Undercover Police Officer or Agent:

Rule

Limitations:

Under the Fifth Amendment

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Under the Sixth Amendment 188
190
Chapter 6: The Admonition: 190
190
Miranda’s Pre-Interrogation Admonition and Waiver Requirement: 190
190
Rule 191
191
The Necessity of Custody 191
191
The Necessity of an Interrogation 192
193
Exceptions to Necessity of an Admonition 194
196
Form of the Admonition: 198
199
Four Distinct Rights 201
203
No Specific Wording Required 203
203
Suggested Wording 203
205
Providing an Attorney 205

Advisements That Have Fallen Short

Advisements That Have Been Upheld

When Combined with Other Admonishments

Discouraging an Invocation

Foreign Language Advisements

Admonishing From “The Card”

Defendant’s Awareness of his Rights Prior to Advisal

Successive Admonishments:

Need to Readmonish in Successive Interrogations

Factors

Different Crimes

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Defective Admonishment Following Proper Admonishment 206
206
Subject Has His Rights in Mind 208
208
Where Readmonishment Held to be Necessary 208
209
Questioning by Different Sovereigns 209
210
Suggested Tactics 210
210
Relevance of Defendant’s Prior Knowledge: 211
212
Defendant’s Awareness of the Charges Prior to Advisal 212
213
Defendant’s Awareness of the Legal or Penal Consequences of the Charges 213
214
Effects of Miranda Violation on a later valid Admonition and Waiver: 216
216
Rule 216
217
The Rule of Elstad Debated 217
217
The “Two-Step Interrogation” Tactic; the Rule of Missouri v. Seibert: 217

Elstad Limited to its Facts

Factors

Case Law Where Seibert Held to be Applicable

Case Law Where Seibert Held Not to be Applicable

Case Law Where a Seibert Issue was Left Undecided

Curing a Seibert Violation

California’s Former “Presumptive Invalidity” Rule

Use of an Undercover Police Agent:

Issue

Rule

Examples

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Where the Defendant has Already Invoked 224

The Sixth Amendment 229

Pretext Telephone Calls in the Miranda Context: 230

Rule 230

Case Law 230

Chapter 7: Invocation of Rights: 233

Defendant’s Invocation of Rights Under the Fifth Amendment and Miranda: 233

Rights Available to Invoke: 233

Right Not to Incriminate Oneself 233

Right to the Assistance of an Attorney Before and During Questioning 233

Statutory Protections: 233

Evid. Code § 930 233

Evid. Code § 940 233

General Rule 233

The Fifth Amendment Self-Incrimination vs. Fifth Amendment Right to Counsel: 234

The “Fifth Amendment Right to Remain Silent” 234

The “Fifth Amendment Right to Counsel” 234

Legal Effects of Each: 234

Fifth Amendment Right to Remain Silent 234

Fifth Amendment Right to an Attorney 235

Did the Suspect Invoke? 237

Rule 237

Interpreting the Response 237

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No Invocation; Examples 238

Invocation; Examples 241

Problem: Requests to Turn Off the Tape Recorder 243

Talking a Suspect Out of Invoking His Rights 244

Query: Does it Make a Difference? 245

The Current Rule 245

Invocations Upon the Initial (or Prior to) Admonishment of Rights: 246

Rule: 246

Right to Remain Silent 246

Right to the Assistance of Counsel 247

Legally Effective Invocations to Right to Remain Silent 247

Legally Ineffective Equivocal Invocations to Right to Remain Silent 248

Legally Effective Invocations to Right to the Assistance of Counsel 248

Legally Ineffective Equivocal Invocations to Right to the Assistance of Counsel 249

Seeking Clarification of Ambiguous Invocation Made 252
at Initiation of the Interrogation:

Rule 252

Ambiguity as a Precedent 253

Invocations After an Initial Waiver and During an Interrogation: 255

Rule 255

Legally Effective Invocations to Right to Remain Silent 256

Legally Ineffective Equivocal Invocations to Right to Remain Silent 257

Legally Effective Invocations to Right to the Assistance of Counsel 258

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Legally Ineffective Equivocal Invocations to the Assistance of Counsel 259

No Duty to Seek Clarification of Ambiguous Invocations 262
Made Mid-Interrogation
263
Argument that Ambiguous Invocations are Legally Insufficient 263
Only After an Initial Waiver: 263
265
Apparent Rule 266
266
Examples 267
268
The United States Supreme Court 269
269
Miscellaneous Invocation Rules: 270

The “Reasonable Officer” Test 270
270
Anticipatory Invocations
270
Selective Invocations 270
272
Juveniles: 272
272
Rule
Reinitiation of Interrogation:

Reinitiation of an Interrogation by the Police
After an Invocation of the Right to Silence:

Rule

Reinitiation of an Interrogation by Police After a Miranda Invocation
of the Right to the Assistance of Counsel:

Rule

Why a different rule?

Different Offense

How Long is Forever?

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Reinitiation of an Interrogation by the Defendant: 274
Rule 274
Limitation: 275
Rule 275
Law Enforcement Encouragement to Reinitiate 276
Decision Clearly and Unequivocally Indicated 279
After Defendant is Arraigned; Sixth Amendment 280
Burden of Proof 280
281
Defendant’s Invocation as Evidence of Guilt: 281
Rule 282
Case Law 283
Miranda For “Use as a Shield; Not a Sword” 285
On Appeal 285
285
The Inadmissibility of Words of Invocation: 286
Rule 287
Case Law 287
287
Defendant’s Invocation as Evidence of Sanity: 287
Rule 288
Exception for Mental Competence Hearing 288
On Appeal 288

Invocation as a Violation of Probation or Parole:
Rule
Case Law

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Invocation during Civil Proceedings: 290

Rule 290

Determining Applicability of the Privilege 290

Invocation by a Witness in a Criminal Case: 290

Rule: 290

Evid. Code § 940 290

Evid. Code § 404 291

Case Law 291

Immunity 292

Defense Attorney’s Intervention: 293

Rule 293

Sixth Amendment Right to Counsel 293

Fifth Amendment Implied Right to Counsel 294

Notification to Defense Counsel 294

Defendant’s Refusal To Testify under the Fifth Amendment: 295

Rule 295

Defendant's Refusal to Testify as Evidence of Guilt 295

Testifying Defendant’s Refusal to Submit to Cross-Examination 296

Jury Instructions 297

Comment to the Jury; “Griffin Error:” 298

Rule 298

Case Law 298

References to Evidence That Only Defendant Could Refute or Contradict 300

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Harmless Error 301

Exception: Comments on the Evidence 304

Comments by a Witness 307

When Defendant Does Testify 307

Defendant’s Concurrent Right to Testify: 308

Rule 308

Admonishment by the Court to Self-Represented Defendants: 310

Old Rule 310

New Rule 310

No Privilege to Lie 310

Defendant’s Pre-Trial Silence as Substantive Evidence of Guilt or 311
for Purposes of Impeachment:

Rule 311

Issue: Failure to Offer Excuse, Alibi or Defense when Accused of Crime 311

Doyle Error: 311

As Impeachment Evidence: 312

Pre-Arrest Silence, Before a Miranda Admonishment 312

Post-Arrest Silence, but Before a Miranda Admonishment is Given 313

Post-Arrest Silence, After a Miranda Admonishment 313

Post-Arrest Silence, After a Miranda Admonishment, 315
In the Face of an Accusation Made
by Non-Law Enforcement

Post-Arrest, After Admonishment and Waiver, 316
a Selective Refusal to Answer Questions

Impeachment by Cross-Examination or Rebuttal Evidence 317

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As Substantive Evidence of Guilt: 317
317
Pre-Arrest and Pre-Miranda Admonishment 319
320
Post-arrest, Pre-Admonishment 321

Post-Arrest, After Invocation 321
321
Post-Arrest, After Waiver 323
323
At Sentencing, When Used in a Subsequent Case 323
as Proof of Defendant’s Prior Conviction 323
323
Doyle Error on Appeal 325
327
Chapter 8: Waiver of Rights: 327
327
Waiver and Expiration of Fifth Amendment Rights: 327
327
Express (or Implied) Waiver 327
328
In-Court Waiver: 328
328
Through Testimony 329

By “Tendering an Issue”

Upon a Plea or Verdict of Guilty

Expiration:

Upon Exhaustion of Appeal

Upon Running of the Statute of Limitations

Immunity:

Rule

Penal Code § 1324:

Transactional immunity

Use Immunity

Compelled Use Immunity

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Standing 329
330
Case Law 330
331
Other Statutory Immunity Provisions 331
331
Induced Waivers: 333
334
Rule 334
334
Examples 335
336
Waiver as a Condition of Probation 336
337
Express (or Implied) Waivers: 337
338
Rule 338
338
Burden of Proof 340
340
Waiver vs. Invocation of Rights 342
342
Two Components: 342

Voluntariness

Knowing and Intelligent Waiver

General Rules

Factors

Understanding The Rights:

Rule

Impediments to Understanding the Miranda Rights:

Drugs and Alcohol

Mental Impediments:

General Rules

Requirement of Coercive Police Conduct

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Youth and/or Inexperience 343
344
Low Intelligence 346
346
Brain Damage 347
348
Mental Illness 348
348
Drug Influence 348
348
Sleep Deprivation 348
349
Education 350
350
Physical Injuries: 354
354
Gunshot wounds: 355
355
Statements Admissible 355
355
Statements Inadmissible 356
357
Issue Not Decided 361

Other Injuries

Language Difficulties

Understanding the Subject Matter of the Interrogation

Understanding the Charges

Expert Testimony

Necessity of a Court Hearing

Voluntariness Issues:

Rule

Voluntariness; Before vs. After Waiver

Necessity of a Free, Voluntary, and Intelligent Waiver

Legal Effect of Pre-Admonishment Discussions

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Grumbling Waivers: 362
362
Waiver 362
363
No Waiver 363
364
Conditional and Selective Waivers 364
365
Use of a “False Friend” to Extract a Confession 366
366
Express v. Implied Waivers: 369
370
Issue 371
373
General Rule 373
373
The Problem 374
379
Recent Trends 379
380
Caution Advised 380
380
On Appeal 380

Conclusion

Chapter 9: Voluntariness After Waiver:

Coercive Interrogations:

Rule

Case Law

Coercive Psychological Ploys

Reasons for Excluding Coerced Confessions

Other Products of Coerced Confessions

Test

Burden of Proof

Factors

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Causation 382
Due Process 383
On Appeal 384
Specific Issues Affecting Voluntariness: 385
General Rule 385
Issues: 385
385
Administration of Drugs or Use of a “Truth Serum” 385
Alcohol 385
Mental State of the Defendant 386
Threats 388
Threats to Others 389
Offers of Leniency: 389
391
Rule 392
Impermissible Offers of Leniency 396
Held Not to be an Offer of Leniency 398
Offers of Leniency for the Benefit of a Third Persons 401
Causation Requirement 401
Misrepresentations (Ruse or Subterfuge) Made to the Suspect: 401
General Rule 404
Case Law 405
Rule Criticized
Practice Note: The Public Trust

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Reverse Lineups 405
Religion: 406
406
Rule 406
Where Use of Religion was Held to be Improper 406
Where Use of Religion was Excused 407
Length of the Interrogation: 407
Rule 407
Where Held Not to be Unduly Coercive 408
Where Held to be Unduly Coercive 408
Violation of the Law Enforcement Agency’s Written Policies 408
Combination of Improper Interrogative Techniques 409
Acceptable Interrogative Techniques: 409
Explanations of the Defendant’s Legal Status 410
Admonishments to Tell the Truth 410
Other Inducements 412
Chapter 10: Juveniles & Miranda: 412
Miranda Protections as They Relate to Juveniles: 412
General Rule 412
Juveniles and False Confessions: 412
The Problem 415
Coercive Interrogative Tactics 417
Coercive Interrogative Tactics Not Found 418
California’s Solution

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Waiver vs. Invocation of Rights: 418

General Rule 418

Factors to Consider 418

Case Law 419

Miscellaneous Issues Unique to Juveniles: 420

Requesting an Adult’s Assistance: 420

Rule 420

The Legal Consequences of a Parent’s Presence: 421

Effect of a Parent’s Presence at an Interrogation 421

Parent as a De Facto Agent of Law Enforcement 422

Conflict of Interest 422

A Parent’s Attempt to Invoke for a Minor 423

Interviewing a Child Victim on a School Campus 424
Without the Parents’ Consent

Need for a Clear and Unequivocal Invocation After a Prior Waiver 425

W&I § 707 Fitness Hearings As a Prerequisite to being Tried as an Adult 425

Statutory Protections: 425

W&I Code § 625; Reading A Juvenile His Miranda Rights 425

Minors Age 15 Years and Younger, and Mandatory Attorney Consultations: 427

Welf. & Inst. § 625.6
427

The Legislature’s Reasoning 429

Case Law 430

Pen. Code § 859.5(a) and Welf. & Inst. Code § 626.8; Recording Requirements 430

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Pen. Code § 26; Capacity to Commit a Crime for a Minor 430
Under the Age of 14

Custody of a Juvenile: 431

Problem 431

The Juvenile’s Age 431

The Gladys R. Inquiry 431

Use of a Beheler Admonishment 431

Statutory Recording Requirements for Juveniles: 432

P.C. § 859.5(a); Recording Requirements of a Minor’s Interrogation 432

Welf. & Inst. Code § 626.8; Recording Interrogations of Minors 434

Chapter 11: Public Employees Subject to Administrative Investigations: 435

Coerced Statements from Public Employees: 435

Rule 435

Case Law 435

Applicable Statutes: 437

Gov’t. Code § 3253(e)(1): Immunity for a Firefighter 437

Gov’t. Code § 3303(f): Inadmissibility in a Civil Action 437
for a Police Officer

Gov’t. Code, § 3304: Forbidding Punitive Action for Police Officers 437

Gov’t. Code § 18676: Immunity for a Witness in a Civil Service Hearing 437

Gov’t. Code § 18677: Immunity from Prosecution 438

Gov’t. Code § 83119: Transactional Immunity for 438
Fair Political Practices Commission Witnesses

Corp. Code § 25531(e): Transactional Immunity for Witnesses 438
Before the Corporations Commissioner in a
Securities Fraud Investigation

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P.C. § 1324: Prosecutors’ Request for Judicial Immunity 438
in Felony Cases

Examples 438

Exceptions: 439

No Threatened Termination 439

Promises of Immunity 440

Chapter 12: Evidentiary, Hearsay, and Confrontation Issues, 441
and a Defendant’s Statements:

On Appeal 441

The “Corpus Delicti” Rule: 441

Prerequisite of a “Prima Facie” Case 441

California Rule 443

Admissibility of Statements After Corpus Delicti Established 445

Not Part of the Corpus Delicti: 445

The Identity of the Offender 445

An H&S § 11379 Enhancement 445

Identity of the Perpetrator, Degree of the Crime, or Penalty Enhancements 446

Admissibility of Uncharged Conduct 446

Extrajudicial Statements that Constitute the Crime Itself 446

A Felony-Based Special Circumstance 446

Examples 446

Court’s Duty to Instruct Jury 447

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Evidentiary Uses of Defendant’s Statements: 447
To Prove the Identity of the Defendant as the Perpetrator 447
To Prove the Degree of the Charged Offense 447
To Prove the Degree of a Homicide or Felony Murder 447
To Prove Guilt by Inference 447
To Prove the Elements of a Prior Strike Conviction 448
The Court’s Duty to Instruct 448
448
Admissibility in Evidence of a Defendant’s Statements: 448
Relevant Definitions: 448
Evid. Code § 140: Evidence 448
Evid. Code § 225: Statement 449
Evid. Code § 250: Writing 449
Statutory Presumptions:
Evid. Code § 1552: A Printed Representation of Computer Information 449
or a Computer Program
Evid. Code § 1553: A Printed Representation of Images Stored 449
on a Video or Digital Medium 449
Hearsay Issues: 449
The Hearsay Rule: 449
Evid. Code § 1200(a): Hearsay Evidence 449
Evid. Code § 1200(b): Inadmissibility of Hearsay Evidence 449
Relevant Exceptions: 449
Evid. Code § 1220: Party Admission Exception 450
Evid. Code § 1221: Adoptive Admissions

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Evid. Code § 1222: Authorized Admissions 450
Evid. Code § 1223: Admissions of a Coconspirator 450
Evid. Code § 1291: Former Testimony 451
Evid. Code § 771: Past Recollection Refreshed 451
Evid. Code § 1230: Declaration Against Penal Interest 451
Evid. Code § 1237: Past Recollection Recorded 451
Admissibility of Defendant’s Oral Declarations 451
Federal Extradition Proceedings: 452
Admissibility of Third Party Hearsay Statements Obtained by Torture 452
Chapter 13: Suppression Issues and Procedures: 453
Miranda Violations: 453
Summary 453
Results 453
Procedural Issues: 454
Federal Standards to be Used 454
California Rules: In Limine Motions Heard by the Trial Court 454
Statutory “Motion to Suppress Evidence” for Fourth Amendment Issues Only 455
Federal Court Rules: 455
18 U.S.C. § 3501: Hearing Out of the Jury’s Presence 455
Retroactivity 455
Procedure on Appeal 456

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Standing: 456
Rules: 456
Another Person’s Miranda Violation 456
Products of Another’s Miranda Violation 457
A Third Person’s Involuntary, Coerced Statements 457
Products of Another’s Coerced Statements 457
Corporations 458
458
Suppression Issues: 458
Suppressed Statements: 458
Statements Subject to Suppression: 458
Complete Confessions 458
Admissions 458
Inculpatory Statements 458
Exculpatory Statements 458
Knowing and Intelligent Waiver as a Prerequisite to Admissibility 459
Miranda Violations: Statements Inadmissible in the People’s Case-in-Chief: 459
Rule 459
Exception: Statements Offered for Purposes of Impeachment
Exception #1 to Impeachment Exception: Involuntary 459
or Coerced Statements
Exception #2 to Impeachment Exception: Defendant’s Illegally 459
Obtained Statements Offered to Impeach a Defense Witness
Exception #3 to Impeachment Exception: Defendant’s Illegally 460
Induced Testimony

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Fruit of the Poisonous Tree Doctrine: 461
461
Rule
461
Statements in Violation of Miranda as Probable Cause in a 461
Search Warrant Affidavit 462
462
Statements in Violation of Miranda as Probable Cause to Arrest 462
462
Statements in Violation of Miranda used to Establish Consent to Search 463
463
Statements in Violation of Miranda Used to Violate Parole or Probation 463
464
Statements Obtained as the Product of an Illegal Detention or Arrest: 464
465
Rule 465

Effect of Intervening Factors: 465
465
Attenuation of the Taint 466
466
Causal Chain of Events 467
468
The Public Safety Exception 468

Effect of an Intervening Miranda Admonishment

Statements Obtained as the Product of an Illegal Search:

Rule

Exceptions to the Non-Admissibility of Statements or Evidence Seized
as a Product of a Fourth Amendment (Detention, Arrest, or Search)
Violation:

As Impeachment Evidence

Where the Taint is Purged

Where Law Enforcement’s Illegal Act is Not Exploited

A Knock and Notice Violation

Products of a Breach of a Statutory Privilege:

General Rule

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Exception 468
Other Suppression Issues: 468

Statements Made to Third Persons and/or at Prior Hearings, 468
Used for Impeachment: 469
Statements Made to Psychotherapists 470
Statements Made to a Probation Officer 470
Other Hearings 472
During Plea Negotiations 473
473
Statements Admissible at Other Hearings: 474
Civil Proceedings 475
Where Sanity is at Issue 476
Deportation Hearings 476
Parole Revocation Hearings 477
Probation Revocation Hearings 477
Mental Competence Jury Trial, per P.C. § 1368 477
Mentally Retarded Determinations, per W&I § 6500.1 477
State Bar Proceedings 478
Mentally Disordered Offender Hearings 478
The Lanterman-Petris-Short Act, per W&I §§ 5000-5550 478
Writ of Habeas Corpus Hearings 478
Foreign Criminal Proceedings

Interrogations by Foreign Officials

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Right Against Self-Incrimination at Sanity Commitment Extension 479
Hearings, per P.C. § 1026.5(a) and W&I §§ 1800 to 1803: 479
Sanity Commitment Extension Hearings 480
Sexually Violent Predator Hearings 481
Mentally Disordered Offender Hearings 481
482
Military Investigations and Hearings 482
Statements Taken During a Delay in Arraignment: 483
483
California Rule (P.C. §§ 821, 825) 484
Federal Rule (18 U.S.C. § 3501(c)): 484
486
The McNabb-Mallory Rule
18 U.S.C. § 3501(c); Safe Harbor Act 487
Exceptions 487
Other Case Law Applying the Rule 487
Statements Obtained from a Foreign National; The Vienna Convention 489
& P.C. § 834c(a)(1): 489
Vienna Convention on Consular Relations 489
Advisal of Rights Made to Arrestee/Detainee 493
Standing 493
Automatic Notice to Foreign Country 494
Sanctions for Violations 494
Polygraph Tests and Results:
Rule
Sixth Amendment Right to Counsel:
The Sixth Amendment

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Fifth Amendment vs. Sixth Amendment Right to Counsel 494

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Miranda and the Law
The Fifth Amendment

A Legal Update
Sixth Edition

July, 2020
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602; 16 L.Ed.2nd 694]

Robert C. Phillips
Deputy District Attorney (Ret.)

(C) (858) 395-0302
[email protected]

Outline: The following is divided into thirteen chapters:

Chapter 1: The Fifth Amendment and Miranda

Chapter 2: Custody

Chapter 3: The Custodial Interrogation

Chapter 4: Law Enforcement

Chapter 5: Lawful Exceptions to the Miranda Rule

Chapter 6: The Admonition

Chapter 7: Invocation of Rights

Chapter 8: Waiver of Rights

Chapter 9: Voluntariness After Waiver

Chapter 10: Juveniles & Miranda:

Chapter 11: Public Employees Subject to Administrative Investigations

Chapter 12: Evidentiary, Hearsay, and Confrontation Issues, and a Defendant’s
Statements

Chapter 13: Suppression Issues and Procedures

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© 2020 Robert C. Phillips. All rights reserved

Chapter 1: The Fifth Amendment and Miranda

The Fifth Amendment:

The Fifth Amendment: “No person . . . shall be compelled in any Criminal Case
to be a witness against himself.”

See also: California Constitution, Art I, Section 15; “Persons may not . . .
be compelled in a criminal cause to be a witness against themselves . . . .”

“The right against compulsory self-incrimination is ‘the mainstay of our
adversary system of criminal justice, and . . . one of the great landmarks in
man’s struggle to make himself civilized.’” (United States v. Preston (9th
Cir. 2014) 751 F.3rd 1008, 1015; quoting Michigan v. Tucker (1974) 417
U.S.433, 439 [94 S.Ct. 2357; 41 L.Ed.2nd 182].)

Self-Executing:

General Rule: the Fifth Amendment self-incrimination privilege is not
“self-executing.” As a result, at least in most situations (e.g., when not in
custody), it is the obligation of the individual seeking the protections of
the Fifth Amendment to invoke it. The state is not obligated to inform an
out-of-custody person of this option. (Minnesota v. Murphy (1984) 465
U.S. 420, 429, 439 [79 L.Ed.2nd 409]; United States v. Saechao (9th Cir.
2005) 418 F.3rd 1073, 1077.)

“The privilege against self-incrimination ‘is an exception to the
general principle that the Government has the right to everyone’s
testimony.’ [Citation.] To prevent the privilege from shielding
information not properly within its scope, we have long held that a
witness who ‘desires the protection of the privilege . . . must claim
it’ at the time he relies on it.” (People v. Tom (2014) 59 Cal.4th
1210, 1215; quoting (Salinas v. Texas (2014) 570 U.S. 178, 183
[133 S.Ct. 2174; 186 L.Ed.2nd 376].) (plur. Opn. of Alito, J.)

Exceptions: However, there are a number of recognized exceptions to this
rule (i.e., where it is self-executing). An in-custody interrogation situation
is one of them; thus, the requirement that the interrogating officer remind
such a suspect of his Fifth Amendment self-incrimination privilege.
(Minnesota v. Murphy, supra, at p. 439; United States v. Saechao, supra,
at p. 1077, fn. 2.)

Question: Why Do People Waive their Rights and Incriminate Themselves?

Aside from perhaps the need to make oneself look innocent by appearing
to cooperate with a law enforcement investigation, and the propensity of

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some to feel they he or she is smarter than the police, it is also recognized
that: “The compulsion to confess wrong has deep psychological roots, and
while confession may bring legal disabilities it also brings great
psychological relief.” (People v. Anderson (1980) 101 Cal.App.3rd 563,
583-584; People v. Carrington (2009) 47 Cal.4th 145, 176.)

The Need for Interrogations:

“Confessions remain a proper element in law enforcement.” (Miranda v.
Arizona (1966) 384 U.S. 436, 478 [16 L.Ed.2nd 694, 726].)

“(T)he ready ability to obtain uncoerced confessions is not an evil but an
unmitigated good . . . .” (McNeil v. Wisconsin (1991) 501 U.S. 171, 181
[115 L.Ed.2nd 158, 170].)

“Indeed, far from being prohibited by the Constitution, admissions of guilt
by wrongdoers, if not coerced, are inherently desirable. . . . Absent some
officially coerced self-accusation, the Fifth Amendment privilege is not
violated by even the most damning admissions.” (United States v.
Washington (1977) 431 U.S. 181, 187 [52 L.Ed.2nd 238, 245].)

“(A)dmissions of guilt are more than merely ‘desirable’ [Citation]; they
are essential to society’s compelling interest in finding, convicting and
punishing those who violate the law.” (Moran v. Burbine (1986) 475
U.S. 412, 426 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 424].)

“A confession is like no other evidence. Indeed, ‘the defendant’s own
confession is probably the most probative and damaging evidence that can
be admitted against him . . . . The admissions of a defendant come from
the actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct.’” (Arizona v. Fulminante (1991) 499
US 279, 296 [113 L.Ed.2nd 302, 322]; quoting Bruton v. United States
(1968) 391 U.S. 123, 139-140 [20 L.Ed.2nd 476, 487].)

“So long as the methods used comply with due process standards, it is in
the public interest for the police to encourage confessions and admissions
during interrogation.” (People v. Garner (1961) 57 Cal.2nd 135, 164.)

“Voluntary confessions are not merely ‘a proper element in law
enforcement,’ Miranda (v. Arizona (1966) 384 U.S. 436, 478 [16 L.Ed.2nd
694]) . . . , they are an ‘unmitigated good,’ McNeil, 501 U.S. at 181,
‘“essential to society’s compelling interest in finding, convicting, and
punishing those who violate the law,”’ Ibid.” (Maryland v. Shatzer
(2010) 559 U.S. 98, 108 [175 L.Ed.2nd 1045]; quoting Moran v. Burbine
(1986) 475 U.S. 412, 426 [106 S.Ct. 1135; 89 L.Ed.2nd 410].)

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“Questioning remains an important part of any criminal investigation.
Police officers may legitimately endeavor to secure a suspect’s
participation in the interrogation process so long as constitutional
safeguards are honored.” (People v. Enraca (2012) 53 Cal.4th 735, 752.)

“‘A confession is like no other evidence. Indeed, “the defendant’s own
confession is probably the most probative and damaging evidence that can
be admitted against him. . . . [T]he admissions of a defendant come from
the actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct. Certainly, confessions have profound
impact on the jury, so much so that we may justifiably doubt its ability to
put them out of mind even if told to do so.” [Citations.] While some
statements by a defendant may concern isolated aspects of the crime or
may be incriminating only when linked to other evidence, a full confession
in which the defendant discloses the motive for and means of the crime
may tempt the jury to rely upon that evidence alone in reaching its
decision.’” People v. Bridgeford (2015) 241 Cal.App.4th 887, 904-905;
quoting Arizona v. Fulminante (1991) 499 U.S. 279, 296 [113 L.Ed.2nd
302]; see also People v. Saldana (2018) 19 Cal.App.5th 432, 436.)

“Except for being captured red-handed, a confession is often the
most incriminating and persuasive evidence of guilt—an
‘evidentiary bombshell’ that frequently ‘shatters the defense.’”
(People v. Saldana, supra, citing People v. Cahill (1993) 5 Cal.4th
478, 497.)

However, noting that false confessions may easily be obtained by skilled
interrogators, the United States Supreme Court has observed, “that a
system of criminal law enforcement which comes to depend on the
‘confession’ will, in the long run, be less reliable and more subject to
abuses than a system which depends on extrinsic evidence independently
secured through skillful investigation.” (In re Elias V. (2015) 237
Cal.App.4th 568, 599-600; quoting Escobedo v. Illinois (1964) 378 U.S.
478, 488–489 [12 L. Ed.2nd 977], fns. omitted.)

The Limitations: However, it is also recognized that the end does not always
justify the means. The necessity of protecting the constitutional rights of all
individuals requires the imposition of certain procedural limitations upon the
efforts of law enforcement in collecting evidence in the form of a suspect’s own
statements. As described below, this necessarily involves a consideration of the
following:

The Fifth Amendment to the United States Constitution: Right against
compulsory self-incrimination.

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See also California Constitution, art 1, § 15; California’s right
against self-incrimination privilege.

The Fifth (as applied to the federal government) and Fourteenth
Amendments to the United States Constitution: Deprivation of one’s
“right to life, liberty or property without “due process” of law.”

Note: “Due Process” requires that all persons be treated with
“fundamental fairness.”

The “Miranda Rule:” In 1966, the United States Supreme Court, in a 5-to-4 decision,
established procedural safeguards, including the familiar admonitions (i.e., the right to
silence and the right to the assistance of counsel; see below), as a “prophylactic” measure
to protect a suspect’s right against self-incrimination, when it decided Miranda v.
Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602; 16 L.Ed.2nd 694].

Pre-Miranda: History and Development of Pre-Miranda Landmark Cases:

Early Common Law:

“At early common law, confessions were admissible at trial
without restriction.” (Development of the Law—Confessions; 79
Harv. L.Rev. 935, 954 (1966))

Note: This, and the following history up until 1951 is
summarized primarily from the account provided in United
States v. Dickerson (1999) 166 F.3rd 667, 684-685;
reversed on other grounds in Dickerson v. United States
(2000) 530 U.S. 428 [120 S.Ct. 2326; 147 L.Ed.2nd 405].)

In the later part of the eighteenth century, courts began to
recognize that certain confessions were not always trustworthy.
(E.g.; The King v. Rudd (K.B. 1783) 168 Eng. Rep. 160 [1 Leach
115]; “(N)o credit ought to be given (to) a confession forced from
the mind by the flattery of hope or by the torture of fear . . .”

“A free and voluntary confession is deserving of the
highest credit, because it is presumed to flow from the
strongest sense of guilt . . . but a confession forced from the
mind by the flattery of hope, or by the torture of fear,
comes in so questionable a shape . . . that no credit ought to
be given to it; and therefore it is rejected.” (King v.
Warickshall (K.B. 1783) 168 Eng. Rep. 234, 235 [1 Leach
262, 263-264].)

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“The privilege against compulsory self-incrimination was
developed by painful opposition to a course of ecclesiastical
inquisitions and Star Chamber proceedings occurring several
centuries ago. (Citations.) (Michigan v. Tucker (1974) 417 U.S.
433, 440 [41 L.Ed.2nd 182, 190].)

Pre-Miranda Landmark Cases:

Brown v. Mississippi (1936) 297 U.S. 278 [80 L.Ed. 682]: The
Supreme Court adopted a Fourteenth Amendment “due process”
“totality of the circumstances” test and a voluntariness standard for
evaluating the admissibility of confessions.

Spano v. New York (1959) 360 U.S. 315 [79 S.Ct. 1202; 3
L.Ed.2nd 1265]; Finding the use of a friend (i.e., a “false friend”)
of the defendant’s to pry a confession out of him, after the
defendant had repeatedly declined to talk without the presence of
his retained lawyer, with the friend playing on the defendant’s
sympathies, to be a Fourteenth Amendment “due process”
violation. “The abhorrence of society to the use of involuntary
confessions does not turn alone on their inherent
untrustworthiness. It also turns on the deep-rooted feeling that the
police must obey the law while enforcing the law; that in the end
life and liberty can be as much endangered from illegal methods
used to convict those thought to be criminals as from the actual
criminals themselves.

Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2nd 977]:
Ignoring defendant’s request to talk to his attorney was held to be a
violation of his Sixth Amendment right to an attorney (later
determined to be more appropriately a violation of his Fifth
Amendment self-incrimination rights; see Moran v. Burbine
(1986) 475 U.S. 412, 429 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 426].)
and his Fourteenth Amendment “due process” rights.

Historical Note: Daniel Escobedo received a sentence of
40 years in prison for the 1983 ice pick murder of a Korean
shopkeeper in Illinois, after his arrest in Mexico and
conviction in 2004, in this three and a half-decades-old
homicide.

People v. Dorado (1965) 62 Cal.2nd 338: Defendant need not
actually request counsel. His statements were held to be
inadmissible absent evidence showing he was aware of his right to
counsel during an interrogation.

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People v. Stewart (1965) 62 Cal.2nd 571: The Escobedo rule was
held to apply to an investigation when it had “focused” on the
defendant and he was thereafter subjected to a process of
interrogation which lends itself to incriminating statements (at p.
578, fn. 5.), a theory that has since been discredited.

Voluntariness Becoming the Issue:

Slowly, “voluntariness” began to be recognized as the hallmark of
a valid confession. (E.g.; Regina v. Garner (Ct.Crim.App. 1848)
169 Eng. Rep. 267; Regina v. Baldry (Ct.Crim.App. 1852) 169
Eng. Rep. 568.)

The United States Supreme Court soon adopted the rule that for a
confession to be considered reliable, it must have been obtained
voluntarily. (Hoyt v. Utah (1884) 110 U.S. 574 [28 L.Ed. 262];
Pierce v. United States (1896) 160 U.S. 355 [40 L.Ed. 454].)

However, the fact that the suspect was in “custody,” by itself, did
not mean that a confession obtained from him or her was
involuntary. (Sparf v. United States (1895) 156 U.S. 51 [39 L.Ed.
343]; Wilson v. United States (1896) 162 U.S. 613 [40 L.Ed.
1090].)

The United States Supreme Court specifically ruled that the
failure to warn a suspect of his right to remain silent and of
his right to counsel did not render a confession involuntary.
(Id., at pp. 623-624 [40 L.Ed. at p. 1096].)

Even modernly, it is recognized that purposely ignoring a
suspect’s purported invocation, continuing to ask questions
despite an invocation of one’s right to silence, is not, by
itself, an issue of voluntariness. (Pollard v. Galaza (9th Cir.
2002) 290 F.3rd 1030.)

The fact of a Miranda violation, or ignoring a
suspect’s attempt to invoke his right to counsel (see
Edwards v. Arizona (1981) 451 U.S. 477, 483 [101
S.Ct. 1880; 68 L.Ed.2nd 378, 386].) does not
“inherently constitute coercion” without evidence
of actual coercion or other circumstances bearing on
the suspect’s free will. (People v. Davis (2009) 46
Cal.4th 539, 599, citing People v. Bradford (1997)
14 Cal.4th 1005, 1039-1040; see also People v.
Villasenor (2015) 242 Cal.App.4th 42, 71-72; and

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Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599,
615-616.)

A court’s determination of voluntariness rests on an
“independent” consideration of the entire record,
including “the characteristics of the accused and the
details of the [encounter].” (People v. Mendez
(2019) 7 Cal.5th 680, 698-699, quoting People v
Neal (2003) 31 Cal.4th 63, at p. 80.)

But see “The Issue of the Intentional Miranda
Violation,” under “Impeachment,” under “Lawful
Exceptions to the Miranda Rule” (Chapter 5),
below.

In Bram v. United States (1897) 168 U.S. 532 [42 L.Ed. 568], the
Supreme Court asserted for the first time that an involuntary
confession was a violation of the Fifth Amendment’s right
against self-incrimination, and that only voluntary confessions
were admissible as evidence in trial.

Eventually, however, it began to be recognized that the Fifth
Amendment’s “Due Process Clause” was a more proper basis for
requiring that a confession be obtained voluntarily to be admissible
in criminal trials. (Brown v. Mississippi (1936) 297 U.S. 278 [80
L.Ed. 682]; Chambers v. Florida (1940) 309 U.S. 227 [84 L.Ed.
716]; Ashcraft v. Tennessee (1944) 322 U.S. 143 [88 L.Ed. 1192];
United States v. Carignan (1951) 342 U.S. 36 [96 L.Ed. 48];
Haynes v. Washington (1963) 373 U.S. 508 [10 L.Ed.2nd 513].)

Note: Due Process under the Fifth (as applied to federal
government) and Fourteenth (as applied to the individual
states) Amendments to the United States Constitution
refers to the concept that the government (federal or state)
cannot deprive a person of his or her “right to life, liberty
or property, without due process of law,” requiring, in
effect, that all persons be treated with “fundamental
fairness.”

“Voluntariness” was specifically held to be the federal test
for determining the admissibility of confessions. (Lisenba
v. California (1941) 314 U.S. 219, 238 [62 S.Ct. 280; 86
L.Ed. 166].)

Prior to Miranda, admissibility of an accused in-custody
statements was judged solely by whether they were

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© 2020 Robert C. Phillips. All rights reserved