Policing | Section 3.3

Fundamentals of Policing by Adam J. McKee

This content is released as a draft version for comment by the scholarly community.  Please do not distribute as is. 

The Fifth Amendment


“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”


History teaches that the best evidence police can garner against a criminal defendant is a confession.  Justice is best served when guilty persons admit wrongdoing and pay their debt to society, but society has a vested interest in making sure that persons that admit wrongdoing are actually guilty.  This important balancing act was traditionally skewed in favor of the state. In the ancient common law system of England, any confession was admissible, even confessions extracted by torture. As the common law moved into the modern era, judges began to insist that confessions be made voluntarily before they would be admitted into evidence.  

In an 1857 case, the U.S. Supreme Court ruled that a forced confession violates the Self-incrimination Clause of the Fifth Amendment (Bram v. United States).  It was not until 1936 that the Court ruled in Brown v. Mississippi that forced confessions were a violation of the Due Process Clause of the Fourteenth Amendment, thus extending the protection against forced confessions to state law enforcement practice.  This line of case law has resulted in a fairly uniform set of rules that apply to local, state, and federal law enforcement.

In Malloy v. Hogan (1964), the Court established the broad rule that confessions would be inadmissible of law enforcement exerted “any improper influence.”  The gold standard, then, is that confessions must be made knowingly and voluntarily if they are to be admissible. By knowingly, the Court means that the person confessing to a crime must understand the potential consequences of such an action.  By voluntary, the court means that there can be no coercion, duress, or inducement on the part of law enforcement.

One of the most important protections against improper influence by law enforcement is the presence of a lawyer during questioning.  In Escobedo v. Illinois (1964), the court ruled that the right to have a lawyer present during police questioning is absolute.  As with nearly every constitutional right, criminal defendants can waive the right to have counsel present during questioning.  In the months that followed Escobedo, it became apparent to civil rights advocates that merely having the right to have an attorney present was not sufficient if criminal suspects did not understand the right, or even know that it existed.  The Court would consider these issues in the appeal of Ernesto Miranda in 1966.

In Miranda v. Arizona (1966), the Supreme Court ruled that police officers must notify individuals of certain constitutional rights before they are subjected to custodial interrogations.  The following warnings must always be included:

  1. They have a right to remain silent
  2. If they choose to make a statement, it can and will be used against them in court
  3. They have the right to have an attorney present during the interrogation
  4. If they cannot afford an attorney, one will be appointed to them by the state

As a matter of departmental policy and training, many officers read suspects’ their right as soon as an arrest takes place.  This is done so that the warnings are not inadvertently omitted at some later time. In addition, they are often read verbatim off of a ‘Miranda Card’ so that they are delivered consistently and accurately every time.  However, the verbatim reading and immediate timing of the warnings are not a requirement of the Supreme Court. Miranda warning are a legal necessity only in the context of a custodial interrogation.

Criminal suspects can waive their Miranda rights, but they must do so knowingly, intelligently, and voluntarily in order for the government to use any statements as evidence against them.

 Miranda v. Arizona

“It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner.  This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.  The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.  Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

The underlying logic of Miranda is that there is “an intimate connection between the privilege against self-incrimination and police custodial questioning.”

Key Terms

References and Further Reading


Modification History

File Created:  08/15/2018

Last Modified:  04/19/2019

[ Back | Content | Next]

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.