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Departments : Point of Law

'Functional Equivalent' of Miranda Questions

Miranda "interrogation" includes more than express questioning.

May 11, 2011  |  by Devallis Rutledge - Also by this author

Arizona v. Mauro

William Carl Mauro murdered his son in Flagstaff. Upon his arrest, he invoked the Miranda rights recited by officers. Later, his wife asked to be allowed to talk to him, and officers cautioned Mr. and Mrs. Mauro that for security, a police officer would have to be present while they spoke. This officer openly recorded the conversation, in which Mauro warned his wife against saying anything without a lawyer. His recorded statements were used at trial to rebut his insanity defense.

When the U.S. Supreme Court reviewed the case, Mauro claimed that permitting his wife to talk to him when police were likely hoping he would incriminate himself was the functional equivalent of questioning. The Supreme Court rejected this argument. Said the court, "Officers do not interrogate a suspect simply by hoping that he will incriminate himself." Since the officers had not given the wife any encouragement or coaching to try to get her to elicit information from her husband, they did not engage in "interrogation."

The Supreme Court gave examples of techniques that could amount to the functional equivalent of direct questioning, such as a "reverse lineup," in which a mock witness audibly picks the suspect out of a lineup, to try to prompt him to say something. (While such a technique could be used after a warning and waiver, it could not be used before a warning, or after an invocation.)


The test is not whether what you said or did actually elicited an incriminating response from your suspect, but whether that result was reasonably foreseeable.

Applying the definition of "interrogation" from the Innis decision, various circuits of the federal court of appeals have made rulings that give examples of circumstances that are, or are not, the "functional equivalent" of express questioning.

Selected Federal Cases Finding the "Functional Equivalent" of Questioning

U.S. v. Montana: Telling the suspects that any cooperation would be brought to the prosecutor's attention was the functional equivalent of questioning, because it was reasonably likely to elicit an incriminating response (which it did).

U.S. v. Tyler: Telling the suspect to "tell the truth" was interrogation.

U.S. v. Rambo: Telling the suspect it would be OK to discuss the case was interrogation.

Selected Federal Cases Finding No "Functional Equivalent" of Questioning

U.S. v. Caputo: Telephone call to another officer in the suspect's presence, even though incriminating evidence was mentioned aloud.

U.S. v. Rommy: Questions to clarify spellings and dates of facts volunteered by the suspect.

U.S. v. Morton: Officer's answers to the suspect's questions, and explaining the reasons for his arrest.

U.S. v. Kimbrough: Suspect's mother's questions to him about his drug activities in her home, although in the officer's presence, were not arranged by police.

U.S. v. Fox: Officers introducing themselves and giving the suspect their business cards as they turned to leave.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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