Admonitions and Waivers

Most of your communications with criminal suspects are "unscripted" dialogue. But in certain situations it can be very important that you say the right words, at the right time, to avoid creating problems for yourself, your agency, and your prosecutor.

Photo: POLICE FilePhoto: POLICE File

Most of your communications with criminal suspects are "unscripted" dialogue. But in certain situations it can be very important that you say the right words, at the right time, to prevent suppression of incriminating statements, and to avoid creating problems for yourself, your agency, and your prosecutor.          

The Beheler Admonition

Only interrogations of a person who is in custody are subject to Miranda. As long as the circumstances do not amount to a formal arrest or its functional equivalent, there is no need to give Miranda admonitions before questioning. (Berkemer v. McCarty) When you ask a suspect to come to the police station voluntarily for questioning, there is no need to give Miranda warnings, as long as you make clear that the person is not under arrest and is free to leave at any time.

Jerry Lain Beheler was a suspected accomplice in a drug rip-off murder when he agreed to go to the station for questioning. He was told he was not under arrest, and he was treated accordingly throughout the interrogation (no cuffs, no shackles, no locked doors, no restraints on his ability to leave the station whenever he wanted). Even though his resulting confession was not preceded by Miranda warnings, the U.S. Supreme Court held that his statements were admissible.

Quoting from an earlier opinion on the same issue, the court said the following: "Miranda warnings are not required simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect."

Where the suspect is not considered a flight or safety risk, officers have the option of asking an unarrested suspect to come in for questioning, and to use what has come to be known as a "Beheler warning," as follows: "You're not under arrest. You're free to leave here whenever you want." (It's important not to create due process problems by telling the suspect he is not going to be arrested, or that he will be free to leave after questioning. The Beheler admonition should be kept in the present tense, as set forth above.)

The Fields Admonition

The Supreme Court has said that when considering whether an inmate is in Miranda "custody," courts should take into account that sentenced prisoners are not being subjected to the unfamiliar and stressful environment that arrest usually entails, so something less than a full Miranda warning may suffice before they are questioned.

Randall Lee Fields was serving time in a Michigan prison when officers investigating another crime went to talk to him. He was taken into a conference room (no added physical restraints) and was told he need not answer questions and was free to return to his cell at any time. The Supreme Court ruled that his statements made under these circumstances were not inadmissible under Miranda, because "Service of a term of imprisonment, without more, is not enough to constitute Miranda custody." (Howes v. Fields)

When following the procedure approved in Fields, officers should avoid the use of increased restraints and simply tell the suspect, "You don't have to talk to me if you don't want to, and you're free to go back to your cell whenever you want."

The JDB Admonition

In JDB v. North Carolina, the Supreme Court said that because minors summoned to the principal's office for questioning by police and school officials are subjected to the "coercive effect of the schoolhouse setting," they might be considered to be in Miranda "custody" even though not formally arrested or subjected to arrest-like restraints. Therefore, it's advisable for officers who interrogate juvenile suspects at school to use a hybrid of the Beheler and Fields admonitions, such as the following: "You're not under arrest, and you don't have to talk to me. You can go back to your classroom whenever you want."

The Miranda Admonition

Notice that the three admonitions discussed above don't mention lawyers, or the potential that the suspect's statements may be used in court, as a full Miranda warning would. This will sometimes improve the chances that the suspect will talk and make admissible, incriminating statements.

When it does become necessary to Mirandize a suspect prior to custodial interrogation, the Supreme Court has said that the admonition must cover four essential points, and that there must be evidence of the suspect's understanding of his rights before a waiver can be found. (Florida v. Powell) The following wording satisfies the Supreme Court's test, without the gratuitous embellishment that's sometimes heard in TV police dramas:

"You have the right to remain silent. Do you understand that?"

"Anything you say may be used against you in court. Do you understand?"

"You have the right to the presence of an attorney, before and during questioning. Do you understand?"

"If you want an attorney but can't afford to pay, an attorney will be appointed for you free of charge before questioning, if you wish. Do you understand?"

The Montejo Waiver

Separate from the court-created Miranda rights, the Sixth Amendment right to counsel applies to attempts by police or their agents to elicit incriminating statements from an "accused" person on a charge for which he has been indicted or has made his first appearance before a judge or magistrate. (McNeil v. Wisconsin) Statements elicited in violation of the Sixth Amendment are inadmissible to prove guilt. (Massiah v. U.S.)

In Montejo v. Louisiana, the Supreme Court ruled that the Sixth Amendment right could be waived, even after arraignment and appointment of counsel. The court declined to create a new Massiah warning and waiver, and said that since the standard Miranda warning adequately informs a suspect of his right to counsel and of the consequences of waiving his rights and talking to the authorities, a Miranda admonition and waiver could also suffice to waive the Sixth Amendment right to counsel.

Therefore, before seeking an interview on the charged crime with a defendant after counsel has been obtained or requested, officers should recite the Miranda warning—even though the defendant may not be in custody (although Miranda is limited to custodial interrogations, the Sixth Amendment right, once attached by indictment or adversary judicial proceedings, applies in or out of custody). (Moran v. Burbine)

Vienna Convention Admonition

A federal treaty called the "Vienna Convention on Consular Relations" mandates that when you arrest a citizen of many of the 177 countries that have ratified the treaty, you must promptly advise the person of his rights under the VCCR. The following language is suggested by the State Department:

"You are entitled to have us notify your country's consular representatives. You can request this notification now or at any time in the future. Your consular officials may call or visit you. Do you want us to notify your country's consular officials?"

Additional information on the VCCR is available online.

Your Rules May Vary

Some states impose additional requirements on their law enforcement officers, or impose barriers to the admissibility of evidence, on the basis of state statutes or constitutional provisions. It's important to get the guidance of local advisors as to the applicability of these principles in your jurisdiction.

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 a dozen books.

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