Returning again to our formulation of Miranda, the Fifth Amendment privilege applies to a defendant’s statement made while in custody and in response to interrogation. So, the first step in determining whether Miranda applies is to ask whether or not the person whose statement is sought to be used against him was in custody at the time that the statement was made. If so, we must then ask whether the statement was made in response to interrogation. If there has been no interrogation, there is no privilege against self-incrimination and the statement may be used at trial against the suspect.
EXAMPLE: While walking down the street, Officer Peddy sees Estelle, a well-known con-artist in town. Because he suspects her of bilking a visitor to his town earlier in the week, Officer Peddy approaches her and starts asking her questions about the victim of the scheme. “Where were you the night of August twelfth? Who were you with? Have you ever seen this man before (and produces photograph of the victim)? What do you know about fixing horse races? Do you play the piano?” He rapid-fires these questions at Estelle, who breaks down in tears and sobs “It was me. It was all me! Take mercy on my soul.” Because Estelle was not in custody and was free to continue her walk, she cannot invoke her Fifth Amendment privilege at trial as an affirmative defense to exclude the evidence of her extrajudicial confession.
It is important here to dispel popular connotations associated with the word “interrogation.” As in much of the law, the word is used as a term of art. We are not here discussing anything involving billy-clubs, electrodes, smoldering cigarettes applied to the skin, the rack, or the like. In fact, police need not even directly question a suspect regarding a specific act in order for questioning to fall within the meaning of the term “interrogation.”
The suspect's being in custody, in and of itself, also falls short of satisfying the interrogation requirement. Some additional form of compulsion or coercion is required to trigger Miranda. Actual direct questioning, however, is not necessarily required. Interrogation can be achieved by placing a “confession form” before a suspect, but not by merely taking the suspect into custody. Some words or actions which are reasonably likely to lead the suspect to make incriminating remarks are required. See Rhode Island v. Innis, R.I., 446 U.S. 291.
EXAMPLE (1): Police approach Reverend S. Martin who is suspected of stealing money from a church fund. After arresting him, they place the Reverend in a room containing a table and two chairs. On the table is an empty collection basket from the Reverend’s church. No police officer bothers to Mirandize the Reverend. After a few minutes, Officer N. Chalant comes into the room and starts talking about the sin of greed, the sin of lying, the sin of theft, and anything else he can think of. He uses religious language to speak about the joy of being cleansed and his own experiences of having been forgiven for his transgressions as a youth. At no point does the officer ask any questions, but simply goes on for about 20 minutes speaking of sin, hell, forgiveness, etc. After ending his diatribe, Officer Chalant picks up the collection basket, turns it over to emphasize that it is empty, and shakes his head sadly. “What a shame,” he says, “that those in need will go cold and hungry this winter.” He then looks Reverend Martin in the eye, as which point the Reverend says quietly “I couldn’t help myself. I needed the money to improve my rare book collection. It is so paltry compared to Reverend Cye M. Schuster’s.” At trial, the confession will be excluded as evidence gained through a custodial interrogation without Miranda warnings. See Brewer v. Williams, 430 U.S. 387 (1977).
EXAMPLE (2): While Officer Chalant is interrogating the Reverend by using his own guilty conscience against him, Dirk Diggler is in the adjoining room waiting for someone – anyone – to come talk to him. He was arrested for the murder of his live-in girlfriend several hours earlier and was brought to this room 45 minutes ago, at which point the door was locked behind him. At no point did anyone read him his rights pursuant to Miranda. After ten minutes alone in the room he began wringing his hands. Fifteen minutes later he began pacing. For the last twenty minutes he has continued his pacing and has been mumbling to himself. After finishing his discussion with Reverend Martin, Officer Chalant opens the door to Diggler’s room. “I killed her! I killed her!” He screams, and falls sobbing into the unsuspecting Chalant’s arms. Because there has been no interrogation, Diggler’s statement can be used as evidence against him in his murder trial despite the lack of a Miranda warning.
Compare the comments made by Officer Chalant in the first scenario above, coupled with his eye contact, with the following scenario. Bear in mind that the crucial question is supposed to be whether the police have spoken or acted in such a way as to make it likely that a suspect would respond and incriminate himself. This determination is made based upon the totality of the circumstances.