Miranda and the Law: The Fifth Amendment

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Miranda and the Law:
The Fifth Amendment

A Legal Update by Robert C. Phillips, Deputy District Attorney (Ret).

July, 2022

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

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:  Appellate, Evidentiary, and Admissibility Issues

Chapter 13:  Suppression Issues and Procedures

Outline:  The following is divided into thirteen chapters:

 

 

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 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].)

 

“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.)

 

In a first degree murder case, the trial court erred in refusing to admit into evidence defendant's testimony about his experience with what happened to people who denied allegations made by police in Thai refugee camps, where he was born and stayed as a boy, because the testimony was relevant under Evid. Code, § 210 to his state of mind in interacting with detectives who interrogated him and to why he might have given a false confession. However, given the other evidence he introduced concerning his confession, the erroneous preclusion of the testimony did not deprive him of his constitutional right to present a defense and was harmless.  (People v. Xiong (2020) 54 Cal.App.5th 1046, 1069-1070.)

 

Evid. Code § 210 provides a definition of “Relevant Evidence:” “‘Relevant Evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

 

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.

 

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].)

 

“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.

 

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 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 voluntary within the meaning of the Fifth and Fourteenth Amendment “due process” clauses.  (Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2nd 222].)

 

“If a suspect’s statements had been obtained by ‘techniques and methods offensive to due process’ (Citation), or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will’ (Citation), the statements would not be admitted.”  (Oregon v. Elstad, supra, at p. 304 [84 L.Ed.2nd at p. 229]; citing Haynes v. Washington (1963) 373 U.S. 503, 514-515 [10 L.Ed.2nd 513, 521-522].)

 

See also People v. Orozco (2019) 32 Cal.App.5th 802, 819-820; describing law enforcement’s repeated ignoring of defendant’s attempts to invoke while trying to talk him into changing his mind as “deplorable” tactics.”

 

Applicability of the Fifth Amendment to the States:

 

Rule:  The constitutional protections under the Fifth Amendment, against compelling a person to be a witness against himself, were first made applicable to the individual states in Malloy v. Hogan (1964) 378 U.S. 1 [84 S.Ct. 1489; 12 L.Ed.2nd 653].  (See also Vega v. Tekoh (June. 23, 2022) __ U.S.__, __ [142 S.Ct. 2095; __ L.Ed.2nd __].) 

 

The California Constitution has its own equivalent to the Fifth Amendment in Art 1, § 15.

 

California has enacted statutory self-incrimination protections as well in Evidence Code §§ 930 and 940. 

 

Federal Principles vs. “Independent State Grounds:” Proposition 8:  Since passage in California of the initiative Proposition 8 in June, 1982, Fifth Amendment issues, including the rules of Miranda, have been guided by federal principles rather than the stricter California rules which previously had been based on California’s constitutional principles under the doctrine of “Independent State Grounds.”

 

Substantive Rules:  Statements taken in violation of Miranda can be used for impeachment purposes, abrogating California’s former rule to the contrary.  (People v. May (1988) 44 Cal.3rd 309.)

 

Procedural Rules:  California now follows the federal rule that a waiver of the Miranda protections needs to be proven by a preponderance of the evidence, abrogating the former California rule requiring proof beyond a reasonable doubt.  (People v. Markham (1989) 49 Cal.3rd 63.)

 

Welf. & Insti. Code § 625.6, requiring minors 17 years of age and younger, be given access to an attorney prior to being advised of his Miranda rights and authorizing a trial court to consider a failure to do so as a factor in determining the admissibility of the minor’s statements, due to enactment of California’s Proposition 8 (Cal. Const. art. I, § 28(d)), does not authorize a court to exercise its discretion to exclude statements if those statements are admissible under federal law.  (In re Anthony L. (2019) 43 Cal.App.5th 438, 448.)

 

                        Applicability to the Military: 

 

The President of the United States, exercising his authority to prescribe procedures for military criminal proceedings (Art. 36(a), UCMJ, 10 U.S.C. § 836(a)), has decreed that statements obtained in violation of the self-incrimination clause of the Fifth Amendment are generally inadmissible at trials by court-martial.  (Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370]; Mil. Rules of Evid., § 304(a), (c)(3).)

 

The Court of Military Appeals has held that the Supreme Court’s cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial.  (United States v. McLaren (1993) 38 M.J. 112, 115; United States v. Applewhite (1987) 23 M.J. 196, 198.)

 

The Post-Miranda Rule: 

 

“(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  (Miranda v. Arizona, supra, at p. 444; see also People v. Elizalde et al. (2015) 61 Cal.4th 523, 531.)

 

The defendant’s statements taken in violation of Miranda are not admissible in the People’s “case-in-chief” to establish the defendant’s guilt.  (People v. Boyer (1989) 48 Cal.3rd 247, 271.)

 

History:  In 1966, probably the most significant, most far-reaching, most unique decision to come out of the United States Supreme Court in the 20th century was decided by a bare majority of five justices to four.  Miranda v. Arizona, supra, was decided, imposing upon law enforcement an admonishment and waiver requirement, requiring law enforcement officers to warn an in-custody criminal suspect that he or she has a constitutional right to not assist his or her interrogators by supplying incriminating information.

 

The Miranda v. Arizona Case: The facts leading up to the Miranda decision are often forgotten; lost in the significant legalities and progressive, historical variations.

 

Defendant Ernesto Miranda was arrested on March 13, 1963, and charged with kidnapping and rape.  Upon being taken to the police station, he was identified by the complaining witness.  Without any undue pressure, intimidation, or offers of any benefit, defendant provided a written confession.  Defendant neither requested, nor was offered, the assistance of an attorney.  He was also never advised that he did not have to answer questions.  His confession was introduced in evidence at his later trial.  He was convicted and eventually sentenced to prison for 20 to 30 years for each count.  The Arizona Supreme Court upheld his conviction.  (See Miranda v. Arizona, supra, at pp. 491-492 [16 L.Ed.2nd at p. 733].)  The United States Supreme Court reversed.

 

Historical Note:  Ernesto Miranda was later murdered in a knife fight in a bar on January 31, 1976, in Phoenix, Arizona, at the age of 34.  It is reported that his assailant was read his Miranda rights but it is unknown if he invoked those rights.

 

Cases Joined with the Miranda Decision:  The Miranda case (No. 759) was joined with three other cases, all with similar issues.  All four cases were joined for decision by the United States Supreme Court under the single title of “Miranda v. Arizona.”  A summary of each case:

 

Vignera v. New York (No. 760):  Defendant Michael Vignera was “picked up” and questioned about a robbery that occurred three days earlier.  He gave police an oral confession.  He was not warned of his right to the assistance of an attorney nor to remain silent.  His confession was admitted against him at his trial.  Vignera was convicted and sentenced to 30 to 60 years in prison.  The United States Supreme Court reversed his conviction based upon law enforcement’s failure to apprise him of his Fifth Amendment self-incrimination privilege or of his right to have counsel present.  (Miranda v. Arizona, supra, at pp. 493-494 [16 L.Ed.2nd at pp. 734-735].)

 

Westover v. United States (No. 761):  Carl Calvin Westover was arrested by local police in Kansas City as a suspect in two robberies.  Without any prior advisal of his constitutional rights, he was questioned over the better part of 14 hours.  He was then turned over to FBI agents who advised him that he had the right to remain silent and to see an attorney.  No waiver of these rights was sought.  Defendant confessed to the FBI that he had committed two other robberies in California.  His conviction and 30-year sentence in federal court was reversed by the United States Supreme Court, holding that the FBI was the beneficiary of the prior protracted interrogation tactics by local law enforcement.  Although advised of his rights by the FBI, he never expressly waived those rights.   “In these circumstances an intelligent waiver of constitutional rights cannot be assumed.”  (Miranda v. Arizona, supra, at pp. 494-497 [16 L.Ed.2nd pp. 735-736].)

 

California v. Stewart (No. 584):  Roy Allen Stewart was arrested by Los Angeles Police as a suspect in a series of purse-snatch robberies.  One of his victims died from the injuries she suffered during the robbery.  Defendant was subjected to nine different interrogations over the next five days, finally resulting in an admission that he robbed the lady who died.  Defendant was convicted and sentenced to death.  The California Supreme Court reversed his conviction.  The United States Supreme Court affirmed California Supreme Court’s decision, holding that defendant was not advised of his rights and that “a knowing and intelligent waiver of these rights (cannot) be assumed on a silent record.”  (Miranda v. Arizona, supra, at pp. 497-499 [16 L.Ed.2nd at pp. 736-737].)

 

Shared Salient Features:  All four of the above cases involved an “incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.”  (Emphasis added; Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at pp. 707].)

 

Inherent Coerciveness of the Custodial Interrogation:  The Miranda decision was premised upon the presumption that any interrogation in a custodial situation (i.e., an “incommunicado interrogation of individuals in a police-dominated atmosphere.”) is “inherently coercive,” with potential “due process” implications.  (Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at p. 707].)

 

As summarized by the California Supreme Court in People v. Johnson (2022) 12 Cal.5th 544, at pp. 577-578:

                     

“‘The Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda [, supra,] 384 U.S. 436 . . . , the [United States Supreme] Court concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. Accordingly, the Court formulated the now-familiar “procedural safeguards effective to secure the privilege against self-incrimination.”’ Colorado v. Spring, 479 U.S. 564, 572 [93 L.Ed.2nd 954; 107 S.Ct. 851] (1987) (quoting Miranda, supra, 384 U.S. at 444). Among these is the rule that when an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards [, supra], 451 U.S. 477, 484–485 . . . .’ (Arizona v. Mauro (1987) 481 U.S. 520, 525–526 [95 L.Ed.2nd 458; 107 S.Ct. 1931], fn. omitted.) ‘“[I]nterrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.’ (Rhode Island v. Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 100 S.Ct. 1682], fns. omitted (Innis).) “‘[N]ot all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’” (People v. Hensley (2014) 59 Cal.4th 788, 810–811 . . . (Hensley).) The ban on further interrogation is intended to prevent police ‘from badgering a defendant into waiving his previously asserted Miranda rights.’ (People v. Thomas (2012) 54 Cal.4th 908, 926. . . .) ‘If further conversations are initiated by the police when there has not been a break in custody, the defendant's statements are presumed involuntary and inadmissible as substantive evidence at trial.’” (Ibid.)

 

Physical Brutality, or the use of the so-called “third degree,” was recognized in Miranda as an evil that involves:

 

Not only a violation of the law; but also

 

The danger of causing a false confession; and

 

Making “police and prosecutors less zealous in the search for objective evidence.”  (Miranda v. Arizona, supra, at p. 447 [16 L.Ed.2nd at p. 708].)

           

Psychological Effects: The Miranda decision, however, is premised more upon the recognition that the modern practice of the in-custody interrogation is psychologically, rather than physically, oriented.  (Miranda v. Arizona, supra, at pp. 448-455 [16 L.Ed.2nd at pp. 709-712]; discussing interrogative techniques contained in law enforcement training manuals and used to overcome the suspect’s will and take advantage of the weaknesses of the in-custody suspect.)

 

Overt physical brutality is not a necessary element of a “due process” violation.  “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.”   (Blackburn v. Alabama (1960) 361 U.S. 199, 206 [4 L.Ed.2nd 242, 247].)

 

“A confession is involuntary whether coerced by physical intimidation or psychological pressure.  [Citation.]  Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will.  Subtle psychological coercion suffices as well, and at time more effectively, to overbear ‘a rational intellect and a free will.’”  (United States v. Tingle (9th Cir. 1981) 658 F.2nd 1332, 1334-1335.)

 

“The (Miranda) court expressed concern that the use of psychologically coercive interrogation techniques, as well as the inherently coercive effect of an incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily.   [Citation]” (People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

 

This is the harm that Miranda was intended to address.  Absent this scenario, or at least a situation approaching this, a Miranda admonishment should not be necessary.  (See discussion below.)

 

Inherent Coerciveness:  “Miranda assumed that ‘incommunicado interrogation’ in a ‘police dominated atmosphere’ is inherently coercive, and that any statement made under such circumstances is not the product of ‘free choice’ unless certain procedural safeguards are followed.”  (Emphasis added; People v. Ray (1996) 13 Cal.4th 313, 336.)

 

“An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion . . . cannot be otherwise than under compulsion t speak.”  (Miranda v. Arizona, supra, at p. 461 [16 L.Ed.2nd at p. 716].)

 

“The ‘[f]ailure to administer Miranda warnings creates a presumption of compulsion.  Consequently unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.’  [Citation].)”  (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

 

Miranda as a Constitutional Principle: 

 

Miranda: “Constitutional” or “Prophylactic” Rule :  For many years, it was believed, based upon some very direct and unambiguous authority from both the United States and the California Supreme Courts, as well as many lower appellate courts, that Miranda was not a constitutionally mandated rule.  Rather, it was understood that Miranda had a “prophylactic” purpose, and that was to protect against abuses of one’s right against compulsory self-incrimination only and not to provide criminal suspects with an independent constitutional right.  (See New York v. Quarles (1984) 467 U.S. 649, 654 [104 S.Ct. 2626; 81 L.Ed.2nd 550, 556].) 

 

In deciding the Miranda case, the Supreme Court “adopted prophylactic protections that ‘required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment.’”  (People v. Mendez (2019) 7 Cal.5th 680, 698; quoting Oregon v. Elstad (1985) 470 U.S. 298, 304 [84 L.Ed.2nd 222; 105 S.Ct. 1285].)

 

Miranda admonishments, however, are not constitutionally mandated.  (Moran v. Burbine (1986) 475 U.S. 412, 424-425 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 423].)

 

“The prophylactic rule of Miranda sweeps more broadly than the Fifth Amendment itself, however, and requires the suppression of some confessions that, while perhaps not actually involuntary, were obtained in the presumptively coercive environment of police custody.  [Citations]”  (Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 243.)

 

The standards enunciated in Miranda were “designed to assure protection of the Federal Constitution’s Fifth Amendment privilege against self-incrimination under ‘inherently coercive’ circumstances.”  (People v. Sims (1993) 5 Cal.4th 405, 440.)

 

“The familiar warnings required by Miranda are at present construed as judicially declared rules intended to secure the constitutional right against self-incrimination, but the warnings are not themselves rights of constitutional stature.  [Citations]  ‘[T]he right to silence described in those warnings derives from the Fifth Amendment and adds nothing too it.’  [Citation]  The warnings are, in short, only a means toward the end of safeguarding the suspect’s Fifth Amendment right.  [Citations]” (People v. Montano (1991) 226 Cal.App.3rd 914, 932.)

 

The warning and waiver components of Miranda are no more than a court-created “series of recommended ‘procedural safeguards’ [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against self-incrimination was protected.  [Citation]” (Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370].)

 

“It remains clear . . . that this prohibition on further questioning—like other aspects of Miranda—is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference its prophylactic purpose.”  (Davis v. United States, supra, at p. 458 [129 L.Ed.2nd at p. 371]; citing Connecticut v. Barrett (1987) 479 U.S. 523, 528 [93 L.Ed.2nd 920, 928].)

 

A simple failure to administer a Miranda warning is not itself a violation of the Fifth Amendment.  (Oregon v. Elstad (1985) 470 U.S. 298, 305, fn. 1 [84 L.Ed.2nd 222; 105 S.Ct. 1285]; United States v. Gonzalez-Sandoval (9th Cir. 1990) 894 F.2nd 1043, 1048; People v. Whitfield (1996) 46 Cal.App.4th 947, 955.)

 

“There is nothing inherently unlawful about noncoercive questioning that merely contravenes the rules set out in Miranda.”  (People v. Felix (1977) 72 Cal.App.3rd 879, 885.)

 

Similarly, 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.)

 

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.)

 

Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2326; 147 L.Ed.2nd 405]:  The United States Supreme Court determined that the Miranda decision announced a “constitutional decision of this Court” and as such, cannot be overruled by a legislative enactment. 

 

Rule Before Dickerson: 

 

Prior to Dickerson, case law consistently held that a Miranda admonishment was “not constitutionally mandated.”  (E.g.; see Moran v. Burbine (1986) 475 U.S. 412, 424-425 [106 S.Ct. 1135; 89 L.Ed.2nd 410, 423]; see also Davis v. United States (1994) 512 U.S. 452, 457 [129 L.Ed.2nd 362, 370]; Oregon v. Elstad (1985) 470 U.S. 298, 305, fn. 1 [84 L.Ed.2nd 222; 105 S.Ct. 1285]; United States v. Gonzalez-Sandoval (9th Cir. 1990) 894 F.2nd 1043, 1048.)

 

Facts: 

 

Congress enacted 18 U.S.C. § 3501 two years (i.e., 1968) after Miranda was decided for the specific purpose of getting around the rule of Miranda by statutorily returning the admissibility of an in-custody defendant’s statements to an issue of voluntariness, with a Miranda-style admonishment being but one factor to consider (see 18 U.S.C. § 3501(b)(3) & (4)) in determining whether defendant’s statements were voluntary. 

 

Under the terms of the statute, “voluntariness” would be the issue to be decided by the trial court.  (18 U.S.C. § 3501(a):  “. . . a confession . . . shall be admissible in evidence if it is voluntarily given.”) 

 

Although not used for almost a third of a century, the Fourth Circuit Court of Appeal applied the statute to make admissible the un-Mirandized statements of a bank robber.  (See United States v. Dickerson (4th Cir. 1999) 166 F.3rd 667.) The Supreme Court reversed, finding that despite its earlier language indicating that Miranda was but a “prophylactic rule” of procedure (see above), Miranda in fact imposed a constitutional requirement.

 

However, a statute cannot overrule a Supreme Court decision which is based upon the Constitution.  (E.g., see City of Boerne v. Flores (1997) 521 U.S. 507, 517-521 [138 L.Ed.2nd 624, 636-638].)  In determining the validity of section 3501, the Supreme Court was forced to decide whether Miranda “announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.” (Dickerson v. United States, supra, at p. 437 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 415].)

 

Result:  The Supreme Court, in a 7-to-2 decision, concluded in Dickerson that “Miranda announced a constitutional rule that Congress may not supersede legislatively,” thus rendering section 3501 a nullity. (Emphasis added; Id. at p. 444 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 420].)

 

Some courts are still confused by this theory.  In Tekoh v. County of Los Angeles (9th Cir. 2021) 985 F.3rd 713, the Ninth Circuit Court of Appeal reversed a trial court decision where the district court judge had instructed a civil jury according to the pre-Dickerson rule; i.e., that the jury was to consider the “objective totality of all the surrounding circumstances. Whether a confession is improperly coerced or compelled . . . .”  (pg. 717.)  In reversing, the Tekoh Court held that when an un-Mirandized statement is used against a defendant in a criminal case in the prosecution’s case in chief, the defendant’s constitutional Fifth Amendment right against self-incrimination is in fact violated.  As such, this violation of the defendant’s constitutional self-incrimination rights may serve as a basis for a federal 42 U.S.C. § 1983 civil suit.

 

What Does Dickerson Mean:  When a police officer violates the rules of Miranda, but before a resulting confession is used in evidence in a trial, has he or she violated the Constitution   The answer is “No.”

                                    

Chavez v. Martinez (2003) 538 U.S. 760 [155 L.Ed.2nd 984], followed Dickerson, and found that neither a Miranda violation, nor even a “coercive” interrogation, violates the Fifth Amendment constitutional protection against self-incrimination.  It is not until the result of a Miranda violation is used in court against the defendant that the defendant’s Fifth Amendment self-incrimination privilege has been violated.

                      

In Chavez, it was alleged that a police sergeant ignored a seriously wounded suspect’s refusals to answer questions while interfering with the medical personnel’s attempts to treat him, when the suspect (Martinez) had never been advised of his Miranda rights.  The suspect, who was never charged with a criminal offense arising from this incident, sued Sgt. Chavez and the Oxnard Police Department pursuant to 42 U.S.C. § 1983 in federal court, for violating his federal constitutional rights.

 

United States v. Patane (2004) 542 U.S. 630 [159 L.Ed.2nd 667] followed Chavez, and reiterated the rule that the Fifth Amendment (and perhaps even the Miranda rule itself) is a “trial right,” and is therefore not violated by a police officer who ignores the Miranda admonishment and waiver requirements.  A Miranda violation does not blossom into a Fifth Amendment violation until the product of the improper interrogation is used in court.  (See also United States v. Verdugo-Urguidez (1990) 494 U.S 259, 264 [108 L.Ed.2nd 222, 232]; and People v. Davis (2005) 36 Cal.4th 510, 552.)

 

See also Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 727; “(T)he right against self-incrimination is not itself violated until statements obtained by compulsion are used in criminal proceedings against the person from whom the statements were obtained.”  (Italics in original, citing Chavez v. Martinez, supra, at pp. 767-773, 777-778.)

 

And see Tobias v. Arteaga (9th Cir. 2021) 996 F.3rd 571, at p. 580:  “The district court correctly denied qualified immunity on Tobias’s claim that the LAPD Detectives violated his Fifth Amendment right to counsel by continuing his custodial interrogation after he requested an attorney and then using the resulting confession against him in his criminal case.”

 

The Ninth Circuit Court of Appeal:  Even before Dickerson, federal decisions such as Henry v. Kernan (9th Cir. 1999) 197 F.3rd 1021.) and California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3rd 1039, tended to blur the distinctions between a simple Miranda violation and the Fifth Amendment.

 

Henry v. Kernan:  Per the Ninth Circuit, any “deliberate course of action to violate Miranda” is a constitutional violation as well as a Miranda violation.  Without attempting to explain the differences between the two, the Court opined that although a simple Miranda violation does not implicate the Constitution, when the “police knowingly engage in calculated misconduct in order to secure the disputed evidence,” the Constitution is violated.  While the defendant in this case was misled into believing that his responses could not be used against him (a police tactic consistently considered to constitute “coercion;” see California Attorneys v. Butts, supra.), the constitutional violation per the Court was in the interrogating officers’ deliberate intent to violate the suspect’s Miranda rights.

 

California Attorneys v. Butts:  Although acknowledging that Miranda is but a “prophylactic device” used to ensure respect for an in-custody criminal suspect’s Fifth Amendment right against self-incrimination and not an independent constitutional right in itself, this panel of the Ninth Circuit went on to hold that “Miranda cannot be viewed entirely apart from the constitutional rights that it protects.”  (Certiorari was denied in Butts by the Supreme Court on the same day Dickerson was decided.)

 

The Ninth Circuit Court of Appeal has also interpreted this to mean that a defendant’s Fifth Amendment self-incrimination rights have been violated if used even pre-trial, any time they are used to prompt a criminal filing and in certain pre-trial hearings.  “A coerced statement has been ‘used’ in a criminal case when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status.” (Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 922-925; finding also that a pre-trial evidentiary hearing, to determine the admissibility of the statements themselves, did not constitute a Fifth Amendment violation.) 

 

Stoot further held that because it was reasonably foreseeable that a prosecutor would use the results of the interrogation (i.e., defendant’s confession), the fact that it was so used by a prosecutor did not cut off the interrogating officer’s potential civil liability.  (Stoot v. City of Everett, supra, at pp. 926-927.)

 

The other federal circuits are split on whether the Fifth Amendment self-incrimination protections extend to pre-trial hearings: 

 

Yes:  Higazy v. Templeton (2nd Cir. 2007) 505 F.3rd 161, 171, 173, bail hearings, suppression hearings, arraignments, and probable cause hearings; Best v. City of Portland (7th Cir. 2009) 554 F.3rd 698, 702-703, suppression hearings; Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006, 1027, bail hearings, arraignments; City of Hays v. Vogt (10th Cir. 2017) 844 F.3rd 1235, 1239-1246.)

 

No:  Renda v. King Cir. 2003) 347 F.3rd 550, 552, “[A] plaintiff may not base a § 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial.”; Burrell v. Virginia (4th Cir. 2005) 395 F.3rd 508, 514, “[The plaintiff] does not allege any trial action that violated his Fifth Amendment rights; thus, ipso facto, his claim fails on the [Chavez v. Martinez (2003) 538 U.S. 760 [123 S.Ct. 1994; 155 L.Ed.2nd 984] plurality’s reasoning.”); Murray v. Earle (5th Cir. 2005) 405 F.3rd 278, 285, “The Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial, even though pre-trial conduct by law enforcement officials may ultimately impair that right.”

 

The requirement that the rule of Miranda only applies where there is a custodial interrogation “is a function of Miranda’s underlying rationale—namely, as a ‘constitutional rule’ implementing the Fifth Amendment’s privilege against self-incrimination.”  (People v. Orozco (2019) 32 Cal.App.5th 802, 811; citing Dickerson v. United States, supra, at pp. 440-444.)

 

The Ninth Circuit further held that the same rule applies to coerced confessions, in violation of the Fifth Amendment.  (Crowe v. County of San Diego (9th Cir. 2010) 593 F.3rd 841, 862; finding the rule to apply to a “Dennis H. hearing” (a hearing within the first 48 hours of custody to determine whether a minor should be declared a ward of the court; In re Dennis H. (1971) 19 Cal.App.3rd 350.), grand jury proceedings, and W&I § 707 hearing to determine whether the boys should be tried as adults.)

 

There is a split of authority on this issue.  The following courts agree with the Ninth Circuit:

 

• Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006.
• Higazy v. Templeton (2nd Cir. 2007) 505 F.3rd 161.

 

But the following courts have held that the Fifth Amendment is not violated until used at the actual trial of the matter:

 

• Burrell v. Virginia (4th Cir. 2005) 395 F.3rd 508.
• Murray v. Earle (5th Cir. 2005) 405 F.3rd 278.
• Renda v. King (3rd Cir. 2003) 347 F.3rd 550.

 

Note, however, People v. Superior Court (Corbett) 2017) 8 Cal.App.5th 670, at p. 679, where the Second District Court of Appeal (Div. 7) erroneously held “. . . the police violated the Fifth Amendment by failing to honor Corbett’s unambiguous invocation during custodial interrogation of his right to remain silent.” 

 

The Seventh Circuit Court of Appeal has held that where an un-Mirandized statement was used against the defendant in the commencement of her criminal prosecution, but where charges were dropped prior to trial, the Fifth Amendment is violated.  (Sornberger v. City of Knoxville (7th Cir. 2006) 434 F.3rd 1006, 1026-1027.) 

 

In discussing what Dickerson means, the Ninth Circuit Court of Appeal vacated a district court’s judgment on a jury's verdict in Plaintiff’s civil suit against a deputy sheriff for having violated his Miranda rights, reversing the district court’s judgment as to plaintiff's requested jury instruction, and remanded for a new trial in an action alleging, in part, that plaintiff’s Fifth Amendment right against self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial. The Court held that in light of the Supreme Court’s decision in Dickerson v. United States, supra, plaintiff had been deprived of his Fifth Amendment right against self-incrimination, allowing him to assert a claim against the state official who deprived him of that right under § 1983.  The Court held that while the question of liability was ultimately for the jury to decide, plaintiff sufficiently demonstrated a Fifth Amendment violation of his Miranda rights. Also, there was no question that the deputy sheriff caused the introduction of the statements at plaintiff's criminal trial even though he himself was not the prosecutor.  Where government officials introduce an un-Mirandized statement to prove a criminal charge at a criminal trial against a defendant, a § 1983 claim may lie against the officer who took the statement. By contrast, in cases like Chavez v. Martinez, supra, where the suspect was never charged, or where police coerce a statement but do not rely on that statement to file formal charges, the Fifth Amendment is not implicated.  (Tekoh v. County of Los Angeles (9th Cir. 2021) 985 F.3rd 713, 719-720.)

 

The Court in Tekoh differentiated its facts from its prior holding in Fortson v. L.A. City Attorney’s Office (9th Cir. 2017), 852 F.3rd 1190 (a Second Amendment, right to the possession of firearms, case), where there was no indication that the plaintiff’s un-Mirandized statements were used against him in a subsequent criminal case.  (At pg. 724, fn. 10.)

 

The Tekoh Court further noted in a footnote that if it had been determined that plaintiff was not in custody at the time of the interrogation, then no Miranda warnings would have been necessary, and there being no Miranda nor Fifth Amendment violation, the defendant deputy sheriff could not be civilly liable.  (At pg. 725, fn. 11.)  The entire Tekoh decision, however, is written under the unstated assumption that the plaintiff was in fact in custody at the time of the interrogation in issue.

 

Tekoh was soon reversed by the U.S. Supreme Court in Vega v. Tekoh (June. 23, 2022) __ U.S.__ [142 S.Ct. 2095; __ L.Ed.2nd __].  See below.

 

Fourteenth Amendment “Due Process:”  However, per the majority of the Chavez Court, a coercive interrogation, conducted in a manner that “shocks the conscience,” may be a Fourteenth Amendment “substantive due process” violation.  (Chavez v. Martinez, supra; case remanded for determination of this issue.)

 

See also Crowe v. County of San Diego (9th Cir. 2010) 593 F.3rd 841, 862-863, and Tobias v. Arteaga (9th Cir. 2021) 996 F.3rd 571, at pp. 584-585.)

 

“The substantive due process standard requires showing that an officer engaged in an ‘abuse of power [that] “shocks the conscience” and “violates the decencies of civilized conduct.”’”  (Id., at p. 584, quoting Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 928.)

 

“The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make ‘inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.’” (People v. Sapp (2003) 31 Cal.4th 240, 267; see also People v. Peoples (2016) 62 Cal.4th 718, 740.)

 

See “Lawful Exceptions to the Miranda Rule,”  “Use of non-coerced statements for impeachment purposes,” (Chapter 5), below.

 

Dickerson’s Effect upon the Legal Exceptions to Miranda:

 

Since the United States Supreme Court has held that the rule of        Miranda is in fact a constitutional rule, and not merely the “prophylactic” rule we were led to believe for so many years, the question often comes up:  “What about the legal exceptions to Miranda; are they still good ”

 

The answer is:  “Yes;” at least so far (see below).

 

In Dickerson (530 U.S. at p. 441 [120 S.Ct. 2326; 147 L.Ed.2nd at p. 418].), the Supreme Court discusses the fact that the court-imposed sanctions for a Fifth Amendment/Miranda violation need not necessarily be the same as imposed for a Fourth Amendment/Search & Seizure violation, hinting at the continuing validity of prior decisions which have upheld that the non-applicability of “fruit of the poisonous tree” doctrine and the lawful use of statements taken in violation of Miranda for purposes of impeachment.

 

The California Supreme Court has held that Dickerson has not changed the rules on using uncoerced statements, despite being taken in violation of Miranda, for impeachment purposes.  (People v. DePriest (2007) 42 Cal.4th 1, 29-36; see also People v. Demetrulias (2006) 39 Cal.4th 1, 29-30.)

 

See “Lawful Exceptions to the Miranda Rule” (Chapter 5), below.

 

The U.S. Supreme Court finally explained the Dickerson ruling in more detail in Vega v. Tekoh (June. 23, 2022) __ U.S.__ [142 S.Ct. 2095; __ L.Ed.2nd __].  In Vega, the Court (in a split, 6-to-3 decision) held that “a violation of Miranda is not itself a violation of the Fifth Amendment, and . . . (the majority of the Court saw) no justification for expanding Miranda to confer a right to sue under (42 U.S.C.) § 1983.”  The Court reached this conclusion after evaluating all its earlier decisions where it was noted that Miranda, although based upon constitutional principles and intended to enforce and give weight to the Fifth Amendment self-incrimination protections, was never intended to provide a right for a criminal defendant to sue an offending law enforcement officer in a civil suit.

 

Why Prosecutors and Police Officers Should be Concerned; Applicable Professional and Ethical Standards:

 

General Principles:

 

Prosecutors, from an ethical and professional standpoint, as “officers of the court,” should not be advising police officers to violate either the Constitution or the dictates of the state and federal Supreme Courts.  (See below)

 

Law Enforcement Officers, having sworn to uphold the Constitution and the laws of this nation and California, should not themselves be purposely devising ways to bypass or ignore the Constitution or the dictates of the State and Federal Supreme Courts.  (See below)

 

Courts’ Condemnation of Intentional Miranda Violations:

 

The United States Supreme Court has specifically commanded that: “If the accused indicates that he wishes to remain silent, "the interrogation must cease.” If he requests counsel, “the interrogation must cease until an attorney is present.”  (Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378].)

 

“‘Edwards set forth a “bright-line rule” that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through “badger[ing]” or “overreaching”—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.”” (People v. Henderson (2020) 9 Cal.5th 1013, 1022; quoting Smith v. Illinois (1984) 469 U.S. 91, 98 [83 L.Ed.2nd 488, 105 S. Ct. 490]; see also People v. Johnson (2022) 12 Cal.5th 544, at pp. 591-502.)

 

The United States Supreme Court has also condemned the practice of training law enforcement to purposely violate the rules of Miranda.  (Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2nd 643], at fn. 2.)

 

The California Supreme Court is in agreement: 

 

A defendant’s re-initiation of questioning in a murder case was held to be “involuntary” (and thus a Fourteenth Amendment “due process” violation) after defendant had invoked his Miranda rights to remain silent and to receive assistance of counsel some nine times during the detective’s earlier interrogation, where the detective had continued the earlier interrogation in deliberate violation of Miranda in the hope of obtaining impeachment evidence, with defendant remaining in custody and incommunicado after the earlier interrogation without being provided access to counsel and without being provided food, drink, or toilet facilities, when the defendant was only 18 years old, inexperienced in legal matters, with minimal education and with low intelligence, and the detective made promises and threats during earlier interrogation after having violated Miranda.  (People v Neal (2003) 31 Cal.4th 63.)

 

“Our conclusion that the officers’ repeated refusal to honor defendant’s invocation of his Miranda rights did not induce an involuntary statement should not be construed as condoning the officers’ tactics.  The [U.S.] Supreme Court has made clear that ‘Miranda is a constitutional decision’ [Citation.] and articulates ‘a constitutional rule’ [Citation.], notwithstanding exceptions to the rule like the one at issue here.  [Citations.]  Thus, the deliberate, intentional and repeated violation of that rule may violate a defendant’s constitutional rights.  At a minimum, ‘[a]s we have emphasized on more than one occasion, [such] misconduct . . . is “unethical” and must be “strongly disapproved.”  [Citation.]’  [Citation.]  This type of police misconduct is not only nonproductive, as this case demonstrates, but can be counterproductive because in the appropriate case it would compel us to reverse a conviction.  [Citation.]  Surely, the possibility of reversal must outweigh whatever advantage police interrogators hope to gain by systematically ignoring a defendant’s invocation of his or her Miranda rights.  Moreover, respect for the rule of law is not advanced when the guardians of the law elect to deliberately violate it.”  (People v. Jablonski (2006) 37 Cal.4th 774, 817.) 

 

See also People v. Peevy (1998) 17 Cal.4th 1184, 1205-1207; declining to decide whether an officer’s intentional violation of Miranda was the product of “widespread, systematic police misconduct,” and if so, whether such a practice requires the suppression of a defendant’s statements for all purposes (i.e., to include impeachment).

 

The California Supreme Court reaffirms “that principle,” and warns, again, that if it is found that such the practice of intentional Miranda violations have become widespread or pursuant to an official police department practice, an exclusionary rule may be developed.  (People v. Nguyen (2015) 61 Cal. 4th 1015, 1077-1078.)

 

And see People v. Johnson (2022) 12 Cal.5th 544, at pp. 591-591, where the intentional ignoring of a hospitalized murder suspect’s attempts to invoke both his right to silence (violating Miranda) and to the assistance of counsel (violating Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880; 68 L.Ed.2nd 378].) was found to be troubling (“. . . we are troubled by the earlier law enforcement conduct.”), although the Court ultimately upheld defendant’s later reinitiation of questioning despite finding the issue as “close.” 

 

Later in its decision, the California Supreme Court found it “concerning (italics added) the multiple clear violations of Miranda that occurred in this case through the repeated efforts of investigating officials to solicit defendant's waiver of his rights to silence and counsel, after he had expressed his unwillingness to talk,” noting that “it is one thing to reapproach a suspect about his willingness to talk after a ‘significant period of time’ . . . ; it is another thing to reapproach the suspect to confront him or to inquire about his willingness to talk no less than five times in a roughly three-hour span.  (Id., at p. __.)

 

Per the Court in discussing the practice of an intentional Miranda/Edwards violation:  “We emphasize the substantial costs to the justice system and the lives affected when law enforcement officials, however well-intentioned, do not conform their own conduct to the law.”  (Id., at p. __.)

 

And then again, at pg. __, fn. 4, the Court reiterated:  “No one should take from this opinion the lesson that violations of constitutional rights carry no consequences. Every violation jeopardizes the ability to place before a jury anything a suspect might say, and jeopardizes any conviction that might be obtained if matters that should have been excluded are erroneously admitted.”

 

The Ninth Circuit’s Opinion:

 

The federal Ninth Circuit Court of Appeal has also indicated their belief that not only is there civil liability when it is proven that police officers had a pre-existing plan to intentionally ignore an in-custody suspect’s attempts to invoke his Fifth Amendment rights (an issue not discussed in Chavez), but such a plan might also trigger a federal criminal prosecution per 18 U.S.C. § 241 (10 yrs/$10,000).  (Cooper v. Dupnik (9th Cir. 1992) 963 F.2nd 1220, 1243, fn. 10.)

 

Also, the Ninth Circuit Court of Appeal, noting agreement with the California Supreme Court, termed an intentional Miranda violation as, “unethical and . . . strongly disapproved.”  (Bradford v. Davis (9th Cir. 2019) 923 F.3rd 599, 620.)

 

Other Decisions:

 

California’s Second District Court of Appeal (Div. 2) has most recently found intentional Miranda violations to be a “deplorable” interrogation tactic  (Italics added; People v. Orozco (2019) 32 Cal.App.5th 802, 816.)

 

Also, out of the Second District’s Division 6:  “We share the views of division four of this court: ‘This is a very troubling case, presenting a deliberate police violation of Miranda . . . .’ [Citation.]   The holding of Miranda is not arcane and establishes a ‘bright line’ rule.  [Citation.]   When the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the rule of law necessarily diminishes. Appellant’s confession should not have been admitted into evidence. Were we to reach a contrary determination, the police could deliberately and successfully ignore the pronouncements of the United States and California Supreme Courts.”  (In re Gilbert E. (1995) 32 Cal.App.4th 1598, 1602.)

 

The Court is making reference to People v. Bey (1993) 21 Cal.App.4th 1623, at p. 1628, where Division 4 of the Second District Court of Appeal comments:  “This is a very troubling case, presenting a deliberate police violation of Miranda coupled with a misrepresentation to appellant about the legal consequences of that violation.”

 

Legal Effects of Dickerson:

 

It appears, at least to date, that despite converting Miranda from a mere “prophylactic” rule of procedure to a constitutional principle, the Supreme Court did not intend to alter the consequences of a Miranda violation, or eliminate any of the commonly accepted exceptions to the rule.   (See “Lawful Exceptions to the Miranda Rule” (Chapter 5), below.

 

The Supreme Court in Dickerson specifically noted that the consequences of a Fourth Amendment search and seizure violation are not necessarily the same as a Fifth Amendment (i.e., Miranda) violation.  (Dickerson v. United States, supra, at p. 441 [147 L.Ed.2nd at p. 418].)  The Court specifically referred to the continuing validity of:

 

The “Public Safety Exception.”  (per New York v. Quarles (1984) 467 U.S. 649 [104 S.Ct. 2626; 81 L.Ed.2nd 550].)  (See below)

 

Use of “non-coerced” statements for impeachment purposes.  (Per Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2nd 1].)

 

The Ninth Circuit Court of Appeal, in changing its mind from several prior decisions (see Henry v. Kernan (9th Cir. 1999) 177 F.3rd 1152 (amended at 197 F.3rd 1021.); and California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3rd 1039), more recently ruled that it matters not whether the violation is intentional.  So long as not coerced, the defendant’s statements are admissible for impeachment purposes.  (Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030.)

 

The California Supreme Court agrees (People v. Peevy (1998) 17 Cal.4th 1184.), at least if not accompanied by aggravating factors sufficient to constitute “coercion” and thus a Fourteenth Amendment “due process” violation.  (People v. Neal (2003) 31 Cal.4th 63.)

 

“Statements taken in violation of Miranda are inadmissible in the government’s case-in-chief. The prosecution may still use such statements for impeachment purposes. (E.g., People v. Pokovich (2006) 39 Cal.4th 1240, 1247 . . . ; People v. Peevy (1998) 17 Cal.4th 1184, 1193 . . . .) What the government may not use against a defendant for any purpose are any of her involuntary statements. We consider statements involuntary—and thus subject to exclusion under the Fifth and Fourteenth Amendments of the federal Constitution—if they are the product of ‘coercive police conduct.’ (People v. Williams (2010) 49 Cal.4th 405, 437 . . . .)”  (People v. Caro (2019) 7 Cal.5th 463, 492.)

 

But see the concurring opinion in Caro (at pp. 527 to 535) arguing that defendant was not only coerced into making incriminating admissions (a “due process” violation), but that she was also in custody while questioned without benefit of a Miranda admonishment or waiver.

 

It was not prosecutorial misconduct for the prosecution to hold back defendant’s tape-recorded confession until the People’s rebuttal case, after defendant testified and claimed that he didn’t remember confessing because he was drunk and “blacked out.”  Use of a defendant’s statements for impeachment purposes (to show his lack of intoxication, in the case) is lawful, particularly in this case when the prosecution promised only not to use a particular officer’s testimony as to defendant’s state of inebriation.  (People v. Debouver (2016) 1 Cal.App.5th 972, 979-981.)

 

Miranda Violations as a Due Process Issue:

 

Due Process:  The California Supreme Court, in People v. Neal (2003) 31 Cal.4th 63, has since held that purposely ignoring an in-custody suspect’s repeated attempts to invoke his Miranda rights some nine times, plus other aggravating circumstances, constitutes a constitutional “due process” violation, sufficient, at least, to preclude the use of a defendant’s resulting statements even for purposes of impeachment.  (See also People v. Orozco (2019) 32 Cal.App.5th 802, 818-521.)

 

The Court noted in Neal that in addition to the detective purposely ignoring the defendant’s attempts to invoke both his right to remain silent and, repeatedly (i.e., nine times), his right to an attorney, the defendant was also young, inexperienced, and had minimal education and intelligence, and he had been deprived of food, water, bathroom facilities, and any contact with non-custodial personnel overnight while remaining in custody.  Also, undermining his will to resist, defendant was subjected to the detective’s promise to help him if he cooperated, but a threat that the “system” would “stick it to him” if he didn’t.  This, all added together, constituted a Fourteenth Amendment “due process” violation.  As the product of a constitutional “due process” violation that went well beyond simply ignoring an attempt to invoke one’s Miranda rights, the defendant’s decision to reinitiate questioning and his resulting confessions were “involuntary” and inadmissible for any purpose (including impeachment).

 

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, 698-700, quoting People v Neal, supra, at p. 80, while differentiating the facts from those in Neal.)

 

See also People v. Johnson (2022) 12 Cal.5th 544, at p. 584, where the Supreme Court differentiated the facts in this case from those of Neal.

 

How does Neal square with Chavez  

 

Despite the fact that the California Supreme Court in Neal never intimated that the detective’s actions “shocked the conscience,” which was the necessary threshold for finding a “due process” violation in the federal Chavez case, it was noted in Neal (in fn.1) that Chavez did not apply to a criminal case in that the issue in Chavez was a person’s right to file a civil lawsuit, per 42 U.S.C. § 1983, while the issue in Neal was the potential suppression of elicited statements in a criminal case.  The Court did not cite any authority for its conclusion that what constitutes a “due process” violation depends upon the nature of the resulting court proceeding; i.e., civil vs. criminal.

 

Totality of the Circumstances:

 

To find a “due process” violation, there must have been some form of coercion.  Repeatedly ignoring a suspect’s invocation to this right to counsel, even though combined with purposely putting him into an interview room with his girlfriend hoping that she might elicit some incriminating statements (which in fact happened), although a form of deception, was not what elicited defendant’s eventual confession.  In considering the “totality of the circumstances, and “(b)ecause the ‘proximate caus[e]’ of his ensuing confession was the conversation—and not the deceptive act of orchestrating its occurrence—the requisite proximate causal link between the police stratagem and defendant’s confession is missing.”  (People v. Orozco (2019) 32 Cal.App.5th 802, 818-821.)

 

Purposes of Miranda:

 

As indicated by the multitude of cases described in this outline (see below), the courts have made it clear that the purposes of Miranda are threefold:

 

• To insure respect for these constitutional principles by law enforcement; and

 

• To guarantee an awareness of these constitutional principles by those being questioned by law enforcement in a custodial, incommunicado, context.

 

• To protect an in-custody criminal suspect from the inherent coerciveness of an incommunicado, police-dominated (i.e., “stationhouse”) interrogation.

 

See Vega v. Tekoh (June. 23, 2022) __ U.S.__, __ [142 S.Ct. 2095; __ L.Ed.2nd __].

 

Understanding these purposes behind the Miranda decision often helps to understand the reasoning behind the case law of Miranda, and to recognize under what circumstances it is, or is not, necessary to apply its rules.

 

“The ‘constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens.’  Schmerber v. California, 384 U.S. 757, 762 (1966).  To maintain a ‘fair state-individual balance,’ the privilege ensures that the government ‘shoulder[s] the entire load’ in building a criminal case.  Miranda v. Arizona, 384 U.S. 436, 460 (1966).  ‘[O]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from [the defendant’s] own mouth.’  Id.”  (Minnesota v. Diamond (2018) 905 N.W.2nd 870.)

 

The rules of Miranda only apply when there is a law enforcement-citizen contact involving an “incommunicado interrogation of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” (Emphasis added; Miranda v. Arizona, supra, at p. 445 [16 L.Ed.2nd at p. 707].)

 

The purpose behind Miranda is “preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.”  (Arizona v. Mauro (1987) 487 U.S. 520, 529-530 [95 L.Ed.2nd 458, 468].)

 

“The (Miranda) court expressed concern that the use of psychologically coercive interrogation techniques, as well as the inherently coercive effect of incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily.   [Citation]” (People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

 

See also Missouri v. Seibert (2004) 542 U.S. 600, 610, & fn. 2 [159 L.Ed.2nd 643], criticizing an interrogation tactic (interrogation-warning-interrogation) intended to “exert . . . pressure upon an individual as to disable him from making a free and rational choice.”

 

The Miranda decision was premised upon the presumption that any interrogation in a custodial situation (i.e.; “incommunicado interrogation of an individual in a police-dominated atmosphere”) is “inherently coercive.”  (Miranda v. Arizona (1966) 384 U.S. 436, 445 [16 L.Ed.2nd 694, 708].) see also Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1018-1019; In re Joseph H. (2015) 237 Cal.App.4th 517, 530.)

 

See also People v. Orozco (2019) 32 Cal.App.5th 802, 812, noting that “those pressures nonetheless necessitate a ‘protective device’—namely, Miranda’s rule—to ensure that suspects do not make the type of compelled statements at the core of the Fifth Amendment’s privilege.”

 

Miranda was intended to address those circumstances where an in-custody defendant's “‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will . . . .’” (Citations omitted; People v. Haydel (1974) 12 Cal.3rd 190, 198; see also Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1002; People v. McWhorter (2009) 47 Cal.4th 318, 346-347; People v. Caro (2019) 7 Cal.5th 463, 492.)

 

Miranda was intended to address those circumstances where an in-custody defendant's “‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will . . . .’” (Citations omitted; People v. Haydel (1974) 12 Cal.3rd 190, 198; see also Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1002; People v. McWhorter (2009) 47 Cal.4th 318, 346-347.)

 

The “focus is on ‘whether [the] defendant’s will was overborne by the circumstances surrounding the giving of [the] confession,’ an inquiry that ‘takes into consideration the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.’”  (United States v. Preston (9th Cir. 2014) 751 F.3rd 1008, 1016; quoting Dickerson v. United States (2000) 530 U.S. 428, 434 [120 S.Ct. 2326; 147 L.Ed.2nd 405].)

                        

Talking about the Fifth Amendment right against self-incrimination, the United States Supreme Court has noted that: “Its essence is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.”  (Culombe v. Connecticut (1961) 367 U.S. 568, 581-582 [6 L.Ed.2nd 1037].) 

 

“‘Any police interview of an individual suspected of a crime has coercive aspects to it.’ [Citation] When police conduct results in an individual being placed ‘in custody,’ the substantial coercion inherent in his situation ‘blurs the line between voluntary and involuntary statements, and thus heightens the risk that [the person being interrogated] will not be “accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.”’ [Citation] Custodial police interrogation, by its very nature, isolates and pressures the individual, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed.’ [Citation]” (United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 764.)

 

“The [United States Supreme Court] has stated in summary that to counteract the coercive pressure inherent in custodial surroundings, ‘Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. [Citation.] Critically, however, a suspect can waive these rights. [Citation.] To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst [(1938)] 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019].” ’ [Citation.]”  (People v. Williams (2010) 49 Cal.4th 405, 425; In re Z.A. (2012) 207 Cal.App.4th 1401, 1413-1414.)

 

We’re talking about “psychological” pressure, even if unintended, exerted upon a person subjected to an in-custody interrogation, and not just “physical abuse.”  (Miranda v. Arizona, supra, at pp. 448-455 [16 L.Ed.2nd at pp. 709-712]; In re Elias V. (2015) 237 Cal.App.4th 568, 577; People v. Saldana (2018) 19 Cal.App.5th 432, 437-438.)

 

“The [Miranda] court expressed concern that the use of psychologically coercive techniques, as well as the inherently coercive effect of incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily. [Citation.]”  (Italics added; People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

 

“The foundational theses of Miranda are that ‘the modern practice of in-custody interrogation is psychologically rather than physically oriented’ (Miranda, supra, 384 U.S. at p. 448), and the psychological techniques now employed by interrogators ‘trade[] on the weakness of individuals,’ and ‘may even give rise to a false confession.’ (Miranda v. Arizona, supra, at p. 455 & fn. 24, citing Borchard, Convicting the Innocent (1932).)”  (In re Elias V., supra.)

 

“The (Miranda) court expressed concern that the use of psychologically coercive interrogation techniques, as well as the inherently coercive effect of incommunicado interrogation, would, in the absence of adequate safeguards, cause persons undergoing interrogation to incriminate themselves involuntarily.   [Citation]” (People v. Peevy (1998) 17 Cal.4th 1184, 1191.)

 

See also Missouri v. Seibert (2004) 542 U.S. 600, 608 [159 L.Ed.2nd 643], criticizing an interrogation tactic (interrogation-warning-interrogation) intended to “exert . . . pressure upon an individual as to disable him from making a free and rational choice.”

 

Scope of the Miranda Rule:

 

Limited to Governmental Compulsion:  “The Fifth Amendment’s self-incrimination clause states that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ (U.S. Const., 5th Amend.) The clause does not, however, ‘establish an unqualified “right to remain silent.” (Salinas v. Texas (2014) 570 U.S. 178, 189 [133 S.Ct. 2174; 186 L.Ed.2nd 376].) (plur. Opn. of Alito, J.)     By definition, “a necessary element of compulsory self-incrimination is some kind of compulsion.” (Lakeside v. Oregon (1978) 435 U.S. 333, 339. [55 L.Ed.2nd 319].)  The ‘sole’ form of compulsion targeted by the Fifth Amendment privilege is ‘governmental coercion’-not ‘“moral and psychological pressures . . . emanating from sources other than official coercion”’ or the absence of ‘“free choice” in any broader sense of the word.’ (Colorado v. Connelly (1986) 479 U.S. 157, 170 ....

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