Editing Miranda warning (section)

==The six rules==
The ''Miranda'' rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. The ''Miranda'' right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.{{refn|group="Note"|The Miranda rule is not an element of a valid arrest. The Fifth Amendment does not require an officer to give an arrestee his Miranda rights as part of the arrest procedure. The Miranda rights are triggered by custody and interrogation. At the time the Supreme Court decided Miranda the Fifth Amendment had already been applied to the states in ''Malloy v. Hogan'', 378 U.S. 1 (1964).}} Therefore, for the ''Miranda'' to apply, six requirements must be fulfilled:

; 1. Evidence must have been gathered.
: If the suspect did not make a statement during the interrogation the fact that he was not advised of his ''Miranda'' rights is of no importance.{{refn|group="Note"|Post-warning silence cannot be used as evidence of guilt or to impeach the defendant's trial testimony.<ref>''Doyle v. Ohio'', 426 U.S. 610 (1976).</ref>}} Nor can the state offer evidence that the defendant asserted his rights—that he refused to talk.
; 2. The evidence must be testimonial.<ref name="Pennsylvania v. Muniz 1990">''Pennsylvania v. Muniz'', 496 U.S. 582 (1990)</ref>
: ''Miranda'' applies only to "testimonial" evidence as that term is defined under the Fifth Amendment.<ref name="Pennsylvania v. Muniz 1990"/> For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.<ref>''Doe v. United States'', 487 U.S. 201 (1988).</ref><ref>See also ''United States v. Wade'', 388 U.S. 218 (1967).</ref> The ''Miranda'' rule does not prohibit compelling a person to engage in non-assertive conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving [[handwriting exemplar|handwriting]]<ref>See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis)331 n. 203 citing ''United States v. Daughenbaugh'', 49 F.3d 171, 173 (5th Cir. 1995).</ref> or voice exemplars,<ref>''United States v. Mitchell'', 556 F.2d 382 (6th Cir. 1977).</ref> fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause.<ref>''Pennsylvania v. Muniz'', 496 U.S 582 (1990).</ref> On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded their head up and down in response to the question "did you kill the victim", the conduct is testimonial; it is the same as saying "yes I did", and Miranda would apply.<ref>See ''Schmerber v. California'', 384 U.S. 757, 761 n. 5 (1966).</ref>
; 3. The evidence must have been obtained while the suspect was in custody.<ref>''Miranda v. Arizona'', 384 U.S. 436 (1966)</ref>
: The evidence must have been obtained while the suspect was in custody. This limitation follows from the fact that ''Miranda''<nowiki/>'s purpose is to protect suspects from the compulsion inherent in the police-dominated atmosphere attendant to arrest. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent "associated with a formal arrest".<ref>''[[Stansbury v. California]]'', 114 S. Ct. 1526 (1994); ''[[New York v. Quarles]]'', 467 U.S. 649, 655 (1984).</ref>{{refn|group="Note"|Some courts phrased the requirement as the defendant did not believe that he was "free to leave". This standard is comparable to the detention standard for purposes of the fourth amendment—not the functional arrest standard for purposes of the fifth amendment.<!-- Unable to verify 'detention standard' annotation in cited cases. -->}} A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. Telling a person he is "under arrest" is sufficient to satisfy this requirement even though the person may not be otherwise physically restrained.<ref>Adams & Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (LEXIS 1998) at 306.</ref> Absent a formal arrest, the issue is whether a reasonable person in the suspect's position would have believed that he was under "full custodial" arrest.{{refn|group="Note"|In deciding whether a person is in "constructive custody" the courts use a totality of the circumstances test. Factors frequently examined include
# the location of the interrogation
# the force used to stop or detain the suspect
# the number officer and police vehicles involved
# whether the officers were in uniform
# whether the officers were visibly armed
# the tone of officer's voice
# whether the suspect was told they were free to leave
# the length of the detention and/or interrogation
# whether the suspect was confronted with incriminating evidence and
# whether the accused was the focus of the investigation.}} Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street—a [[Terry stop]].<ref>See ''[[Berkemer v. McCarty]]'', 468 U.S. 420 (1984) (brief roadside investigatory detention is not custody) and ''California v. Beheler'', 463 U.S. 1121 (1983) (''per curiam'').</ref> Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered actual arrest or its functional equivalent for purposes of the Fifth Amendment.<ref>''Berkemer v. McCarty'', 468 U.S. 420 (1984).</ref> The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave.{{refn|group="Note"|Miranda is not offense or investigation-specific. Therefore, absent a valid waiver, a person in custody cannot be interrogated about the offense they are held in custody for, or any other offense.}}
; 4. The evidence must have been the product of interrogation.<ref>''[[Rhode Island v. Innis]]'', 446 U.S. 291 (1980)</ref>
: The evidence must have been the product of interrogation. A defendant who seeks to challenge the admissibility of a statement under ''Miranda'' must show that the statement was "prompted by police conduct that constituted 'interrogation'".<ref>Imwinkelried and Blinka, Criminal Evidentiary Foundations, 2d ed. (Lexis 2007) {{ISBN|1-4224-1741-7}} at 620.</ref> A volunteered statement by a person in custody does not implicate ''Miranda''. In ''[[Rhode Island v. Innis]]'', the Supreme Court defined interrogation as express questioning and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect". Thus, a practice that the police "should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation". For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are implicitly communicating a question: "How do you explain this?"<ref>See ''[[Edwards v. Arizona]]'', 451 U.S. 477 (1981).</ref> On the other hand, "unforeseeable results of police words or actions" do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. (The police ''will not'' tell the person that they have the right to refuse to perform the test, and the refusal cannot be used in evidence against them, nor can they be in any way punished for refusing to perform it, same as the police will not tell someone that they may refuse to perform a [[Field sobriety testing|roadside sobriety test]] without penalty). An incriminating statement made by an arrestee during the instruction, "I couldn't do that even if I were sober", would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.<ref>See Adams and Blinka, Pretrial Motions in Criminal Prosecutions, 2d ed. (Lexis 1998)331 n. 204 citing United States v. Smith, 3 F.3d. 1088 (7th Cir. 1993)</ref>
; 5. The interrogation must have been conducted by state-agents.<ref>''[[Escobedo v. Illinois]]'', 378 U.S. 478 (1964); ''[[Illinois v. Perkins]]'', 110 S. Ct. 2394 (1990).</ref>
: To establish a violation of the defendant's Fifth Amendment rights, the defendant must show state action, so the interrogation must have been conducted by state-agents.{{refn|group="Note"|According to Kamisar, LaFave & Israel, Basic Criminal Procedure 598 (6th ed. 1986): "[W]hatever may lurk in the heart or mind of the fellow prisoner ..., if it is not 'custodial police interrogation' ''in the eye of the beholder'', then it is not ... interrogation within the meaning of Miranda".<ref name="Latzer1" />{{rp|97}}}} If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate ''Miranda'' because there is no coercion, no police dominated atmosphere if the suspect does not know that they are being questioned by the police. Private security guards and "private" police present special problems. They are generally not regarded as state-agents. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger ''Miranda''<nowiki/>'s safeguards since an officer is considered to be "on duty" at all times.<ref>See [https://casetext.com/case/commonwealth-v-leone-2 ''Commonwealth v. Leone'', 386 Mass. 329 (1982).]</ref>
; 6. The evidence must be offered by the state during a criminal prosecution.{{refn|group="Note"|The Fifth Amendment applies only to compelled statements used in criminal proceedings.}}
: The evidence is being offered during a criminal proceeding. Under the exclusionary rule, a ''Miranda''-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, ''Miranda'' does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.

===Application of the prerequisites===
Assuming that the six requirements are present and ''Miranda'' applies, the statement will be subject to suppression unless the prosecution can demonstrate:
* that the suspect was advised of their ''Miranda'' rights, and
* that the suspect voluntarily waived those rights or that the circumstances fit an exception to the ''Miranda'' rule.
The defendant may also be able to challenge the admissibility of the statement under provisions of state constitutions and state criminal procedure statutes.{{refn|group="Note"|Other bases for exclusion include that the confession was the product of an unconstitutional arrest [See Brown v. Illinois, 422 U.S. 590 (1975); [[Dunaway v. New York]], 442 U.S. 200 (1979)], the confession was obtained in violation of the defendant's sixth amendment right to counsel or the confession was involuntary under the due process clause of the fifth and fourteenth amendments.}}

Immigrants who live in the United States illegally are also protected and should receive their ''Miranda'' warnings as well when being interrogated or placed under arrest. "[[Alien (law)|Aliens]] receive constitutional protections when they have come within the territory of the United States and [have] developed substantial connections with this country".<ref name=einesman/>

The Fifth Amendment right to counsel, a component of the ''Miranda'' Rule, is different from the Sixth Amendment right to counsel. In the context of the law of confessions the Sixth Amendment right to counsel is defined by the [[Massiah v. United States|Massiah]] Doctrine.<ref name=Massiah/>