Editing Miranda warning (section)

==Related doctrines==

In addition to ''Miranda'', confession may be challenged under the ''Massiah'' Doctrine, the voluntariness standard, provisions of federal and state rules of criminal procedure and state constitutional provisions.

===''Massiah'' Doctrine===
The ''Massiah'' Doctrine (established by ''[[Massiah v. United States]]'') prohibits the admission of a confession obtained in violation of the defendant's Sixth Amendment right to counsel. Specifically, the ''Massiah'' rule applies to the use of testimonial evidence in criminal proceedings deliberately elicited by the police from a defendant after formal charges have been filed. The events that trigger the Sixth Amendment safeguards under ''Massiah'' are (1) the commencement of adversarial criminal proceedings and (2) deliberate elicitation of information from the defendant by governmental agents.

The Sixth Amendment guarantees a defendant a right to counsel in all criminal prosecutions. The purposes of the Sixth Amendment right to counsel are to protect a defendant's right to a fair trial and to assure that the adversarial system of justice functions properly by providing competent counsel as an advocate for the defendant in his contest against the "prosecutorial forces" of the state.

====Commencement of adversarial criminal proceedings====
The Sixth Amendment right "attaches" once the government has committed itself to the prosecution of the case by the initiation of adversarial judicial proceedings "by way of formal charge, preliminary hearing, indictment, information or arraignment".<ref>[https://supreme.justia.com/cases/federal/us/467/180/ ''United States v. Gouveia'', 467 U.S. 180, 187–88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984).]</ref>{{refn|group="Note"|"In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in ''Powell v. Alabama'', 287 U.S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See ''Powell v. Alabama'', supra; ''Johnson v. Zerbst'', 304 U.S. 458; ''Hamilton v. Alabama'', 368 U.S. 52; ''Gideon v. Wainwright'', 372 U.S. 335; ''White v. Maryland'', 373 U.S. 59; ''Massiah v. United States'', 377 U.S. 201; ''United States v. Wade'', 388 U.S. 218; ''Gilbert v. California'', 388 U.S. 263; ''Coleman v. Alabama'', 399 U.S. 1." "... [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."<ref>''United States v. Gouveia'' quoting ''Kirby v. Illinois''.</ref>}} Determining whether a particular event or proceeding constitutes the commencement of adversarial criminal proceedings requires both an examination of the rules of criminal procedure for the jurisdiction in which the crime is charged and the Supreme Court cases dealing with the issue of when formal prosecution begins.<ref>''Michigan v. Jackson'', 475 U.S. 625, 632 (1986); see also ''Brewer v. Williams'', 430 U.S. 387, 398 (1977).</ref>{{refn|group="Note"|In ''Maine v. Moulton'' the court stated "By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the intricacies ... of law," ibid., is needed to assure that the prosecution's case encounters "the crucible of meaningful adversarial testing". The Sixth Amendment right to counsel does not attach until such time as the "government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified ...'".<ref>''Kirby v. Illinois'', 406 U. S. 689 (1972).</ref>}} Once adversarial criminal proceedings commence the right to counsel applies to all critical stages of the prosecution and investigation. A critical stage is "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial".<ref>''United States v. Wade'', 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967); see also, ''United States v. Hidalgo'', 7 F.3d 1566 (11th Cir. 1993).</ref>{{refn|group="Note"|Under the critical stage analysis, virtually every phase of the criminal trial is a critical stage. Additionally courts have generally held that pretrial hearings regarding conditions of pretrial release and suppression of evidence are considered critical stages.<ref>''Smith v. Lockhart'', 923 F.2d 1314 (8th Cir. 1991)</ref> On the other hand, courts have generally held that certain pre-trial post accusation investigative procedures are not critical stages. Analysis of fingerprints, blood samples, clothing, hair, handwriting, and voice samples have all been ruled to be noncritical stages.<ref>FBI Law Enforcement Bulletin, (2001)</ref>}}

Government attempts to obtain incriminating statement related to the offense charged from the defendant by overt interrogation or surreptitious means is a critical stage and any information thus obtained is subject to suppression unless the government can show that an attorney was present or the defendant knowingly, voluntarily and intelligently waived his right to counsel.<ref>''Brewer v. Williams'', 97 S. Ct. 1232 (1977) "That the incriminating statements were elicited surreptitiously in the ''Massiah'' case, and otherwise here, is constitutionally irrelevant. See ibid.; ''McLeod v. Ohio'', 381 U. S. 356; ''United States v. Crisp'', 435 F.2d 354, 358 (CA7)"</ref>

====Deliberate elicitation of information from the defendant by governmental agents====
Deliberate elicitation is defined as the intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant.<ref>''Illinois v. Perkins'', 496 U.S. 292 (1990).</ref> Clearly express questioning (interrogation) would qualify but the concept also extends to surreptitious attempts to acquire information from the defendant through the use of undercover agents or paid informants.{{refn|group="Note"|''Massiah'' does not prohibit the government's use of a cellmate as a "silent listening post"—a person who is simply placed in a position to hear any incriminating statements the defendant might make about the charged offense but who does not do anything to coax or induce the defendant to talk about the charged crime.<ref>Kuhlmann v. Wilson, 477 U.S. 436 (1986).</ref>}}

The definition of "deliberate elicitation" is not the same as the definition of "interrogation" under the ''Miranda'' rule. ''Miranda'' interrogation includes express questioning and any actions or statements that an officer would reasonably foresee as likely to cause an incriminating response. ''Massiah'' applies to express questioning and any attempt to deliberately and intentionally obtain incriminating information from the defendant regarding the crime charged. The difference is purposeful creation of an environment likely to produce incriminating information (''Massiah'') and action likely to induce an incriminating response even if that was not the officer's purpose or intent (''Miranda'').

The Sixth Amendment right to counsel is offense-specific&nbsp;– the right only applies to post-commencement attempts to obtain information relating to the crime charged.<ref>''McNeil v. Wisconsin'', 111 S. Ct. 2204 (1991).</ref>{{refn|group="Note"|Lower federal courts has extended the Sixth Amendment right to counsel to factually related offenses. In Texas v. Cobb, the Supreme Court made clear that the right to counsel applied only to the crime charged and did not apply to attempts to gather information about "other offenses 'closely related factually' to the charged offense".<ref name="Texas v. Cobb 2001">''Texas v. Cobb'', 121 S. Ct. 1335 (2001).</ref>}} The right does not extend to uncharged offenses if factually related to the charged crime.<ref name="Texas v. Cobb 2001">''Texas v. Cobb'', 121 S. Ct. 1335 (2001).</ref>

Information obtained in violation of the defendant's Sixth Amendment right to counsel is subject to suppression unless the government can establish that the defendant waived his right to counsel. The waiver must be knowing, intelligent and voluntary.<ref>''Brewer v. Williams'', 430 U.S. 387 (1977)</ref> A valid ''Miranda'' waiver operates as a waiver of Sixth Amendment right.

====''Miranda'' and ''Massiah'' compared====
# ''' Constitutional basis''':
#* ''Miranda'' is based on the Sixth Amendment right to counsel and the Fifth Amendment right to remain silent.
#* ''Massiah'' is based on the Sixth Amendment right to counsel.
# '''Attachment''':
#* ''Miranda'': Custody + interrogation (charging status irrelevant).
#* ''Massiah'': Formally charged + deliberate elicitation (custodial status irrelevant).
# '''Scope''':
#*a. ''Miranda'' applies to custodial interrogation by known governmental agents. Surreptitious acquisition of incriminating information allowed.
#*a. ''Massiah'' applies to overt and surreptitious interrogation.
#*b. ''Miranda'' is not offense specific.<ref>''Mathis v. United States'', 391 U.S. 1 (1968)</ref>
#*b. ''Massiah'' is offense specific.<ref>See ''McNeil v. Wisconsin'', 501 U.S. 171 (1991)</ref>
#*c. ''Miranda'': interrogation + "functional equivalent"
#*c. ''Massiah'': interrogation + "deliberate elicitation"
# '''Waiver''': Both ''Miranda'' and ''Massiah'' rights may be waived.
# '''Assertion''': In each case, the assertion must be clear and unequivocal. The effects of assertion are not identical. For purposes of ''Miranda'', the police must immediately cease the interrogation and cannot resume interrogating the defendant about any offense charged or uncharged unless counsel is present or the defendant initiates contact for purposes of resuming interrogation and valid waiver obtained. Because ''Massiah'' is offense-specific, an assertion of the sixth amendment right to counsel requires the police to cease interrogating the defendant about any charged offense. Apparently the police could continue questioning the defendant about uncharged crimes assuming that the defendant was not in custody. The defendant's remedy would be to leave or to refuse to answer questions.{{refn|group="Note"|Under ''Michigan v. Jackson'', a defendant's request for counsel at a preliminary hearing constituted an assertion of his sixth amendment right to counsel. However, ''Michigan v. Jackson'' was overruled by ''Montejo v. Louisiana .''}}
# '''Remedy for violation''': The remedy for violation of Fifth and Sixth Amendment rights to counsel is identical: the statements and testimonial information are subject to suppression. Derivative evidence is not subject to suppression under ''Miranda&nbsp;''– fruit of poisonous tree doctrine may apply to ''Massiah'' violation.<ref>''Fellers v. United States'', 124 S.Ct. 1019 (2004)</ref> Both ''Miranda'' and ''Massiah'' defective statements can be used for impeachment purposes.
# '''Exceptions''': The primary exceptions to ''Miranda'' are (1) the routine booking questions exception (2) the jail house informant exception and (3) the public safety exception. In ''Moulton v. Maine,'' the Supreme Court refused to recognize a public safety exception to the ''Massiah'' rule.<ref>474 U.S. 159 (1989)</ref> ''Massiah'' allows for the use of jail house informants provided the informants serve merely as "passive listeners".{{refn|group="Note"|The due process clauses of the Fifth and Fourteenth Amendments provide another basis for challenging the admissibility of confessions. The test is whether the statement was "voluntary". A statement is not voluntary if it was the product of police misconduct. That is, a due process claim requires that the defendant establish that there was police misconduct and that this misconduct induced the confession. The "voluntariness" test is implicated in any police interrogation—neither Miranda "custody" nor Massiah "commencement of formal criminal proceedings" is a necessary condition (state action is required). Further, there are no issues of waiver or assertion. Finally, the remedy is complete—an involuntary statement cannot be used for any purpose.}}

===The voluntariness standard===
The voluntariness standard applies to all police interrogations regardless of the custodial status of the suspect and regardless of whether the suspect has been formally charged. The remedy for a violation of the standard is complete suppression of the statement and any evidence derived from the statement. The statement cannot be used as either substantive evidence of guilt or to impeach the defendant's testimony.{{refn|group="Note"|Originally Miranda was regarded as a "prophylactic" rule—the rule itself was not a constitutional right but a " judicially–created enforcement mechanism" devised to protect the underlying constitutional rights. In Dickerson v. United States, the Court "constitutionalized" the Miranda rule—although the decision did not perforce change the rule concerning the use of a Miranda-defective statement for impeachment purposes.}} The reason for the strictness is the common law's aversion to the use of coerced confessions because of their inherent unreliability. Further the rights to be free from coerced confession cannot be waived nor is it necessary that the victim of coercive police conduct assert his right. In considering the voluntariness standard one must consider the Supreme Court's decision in ''Colorado v. Connelly''.<ref>''Colorado v. Connelly'', 479 U.S. 157 (1986)</ref> Although federal courts' application of the ''Connelly'' rule has been inconsistent and state courts have often failed to appreciate the consequences of the case, ''Connelly'' clearly marked a significant change in the application of the voluntariness standard. Before ''Connelly,'' the test was whether the confession was voluntary considering the totality of the circumstances.<ref>See ''Mincey v. Arizona'', 437 U.S. 385 (1978); ''Greenwald v. Wisconsin'', 390 U. S. 519, 390 U.S. 521 (1968) ("Considering the totality of these circumstances, we do not think it credible that petitioner's statements were the product of his free and rational choice"); Reck v. Pate, 367 U.S. 433, 367 U.S. 440 (1961) ("If [a defendant's will was overborne], the confession cannot be deemed 'the product of a rational intellect and a free will'")</ref> "Voluntary" carried its everyday meaning: the confession had to be a product of the exercise of the defendant's free will rather than police coercion.<ref>See e.g., ''Culombe v. Connecticut'', 367 U.S. 568, 367 U.S. 583 (1961) ("[A]n extrajudicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice")</ref> After ''Connelly,'' the totality of circumstances test is not even triggered unless the defendant can show coercive police conduct.<ref>Bloom & Brodin, ''Criminal Procedure'' (Aspen 1996) at 247.</ref> Questions of free will and rational decision making are irrelevant to a due process claim unless police misconduct existed and a causal connection can be shown between the misconduct and the confession.<ref>Bloom & Brodin, ''Criminal Procedure'' (Aspen 1996)</ref>

===State constitutional challenges===
Every state constitution has articles and provision guaranteeing individual rights.<ref name="Latzer1">{{Citation
|last1=Latzer
|first1=Barry
|author1-link=Barry Latzer
|publication-date=1991
|title=State Constitutions and Criminal Justice
|year=1991
|publisher=Greenwood Press
|publication-place=New York, U.S.A.
|language=en
|isbn=9780313261121
|oclc=23649129
|url=https://books.google.com/books?id=t-SRAAAAMAAJ
|access-date=2020-12-04
}}</ref> In most cases the subject matter is similar to the federal bill of rights.<ref name="Latzer1" />{{rp|2}}{{refn|group="Note"|This similarity is hardly surprising since the federal constitution and many state constitutions had common sources the state constitutions of some of the more important states such as Virginia.}} Most state courts interpretation of their constitution is consistent with the interpretation federal court's of analogous provisions of the federal constitution. With regard to ''Miranda'' issues, state courts have exhibited significant resistance to incorporating into their state jurisprudence some of the limitations on the ''Miranda'' rule that have been created by the federal courts.<ref name="Latzer1" />{{rp|89–91}} As a consequence a defendant may be able to circumvent the federal limitation on the ''Miranda'' rule and successfully challenge the admissibility under state constitutional provisions. Practically every aspect of the ''Miranda'' rule has drawn state court criticism. However the primary point of contention involve the following limitations on the scope of the ''Miranda'' rule: (1) the ''Harris'' exception{{refn|group="Note"|In ''Harris'' the United States Supreme Court allowed a ''Miranda''-defective statement to be used to impeach the trial testimony of a defendant. Note the ''Harris'' rule does not permit the use of a statement that fails to meet the voluntariness standards of the due process clause to be used for any purpose. The basis for the distinction is that a ''Miranda''-defective statement does not raise the questions of unreliability as does an involuntary statement.}} (2) the ''Burbine'' rule{{refn|group="Note"|In ''Moran v. Burbine'', 475 U.S. 412 (1986) the Court held that officers are not required to tell a suspect in custody that third parties had retained an attorney for the suspect. The failure of the police to inform the suspect of this fact did not render the waiver involuntary. ''Burbine'' decision was not well-received by the state courts. Six states specifically rejected the Burbine rule.}} and (3) the ''Fare'' rule.<ref name="Latzer1" />{{rp|91–98}}{{refn|group="Note"|The specific holding in Fare was that a juvenile's request to have his probation officer present during an interrogation was not an invocation of the juvenile's right to counsel. The Supreme Court stated that juveniles were essentially to be treated the same as adults for the purposes of Miranda. Many states adopted special rules concerning police interrogation of juveniles.}}

===State statutory challenges===
In addition to constitutionally based challenge, states permit a defendant to challenge the admissibility of a confession on the grounds that the confession was obtained in violation of a defendant's statutory rights. For example, North Carolina Criminal Procedure Act permits a defendant to move to suppress evidence obtained as a result of a "substantial" violation of the provision of the North Carolina Rules of Criminal Procedure.