'Functional Equivalent' of Miranda Questions

"Interrogation" has been defined by the Supreme Court to include both direct questioning and its "functional equivalent." What does this term mean? Three Supreme Court cases and numerous decisions from the federal appeals court have considered this question.

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The familiar Miranda rule generally makes a defendant's statements inadmissible if the statements were obtained by custodial police interrogation without a warning and waiver (express or implied). "Interrogation" has been defined by the Supreme Court to include both direct questioning and its "functional equivalent." What does this term mean? Three Supreme Court cases and numerous decisions from the federal appeals court have considered this question.

Rhode Island v. Innis

Thomas J. Innis robbed and murdered a taxi driver in Providence. Police arrested him shortly after another robbery during which he had used a shotgun. The gun was not recovered by the arresting officer. Innis was given a Miranda warning and he asked for a lawyer. En route to the station, three officers who were transporting him talked among themselves about the need to find the shotgun, because of the proximity of a school for handicapped children, one of whom might find the gun and get hurt. Innis volunteered to show the officers where he had hidden the shotgun in a nearby field.

At his trial, Innis sought to suppress his statements revealing the location of the shotgun, on the ground that he had been subjected to custodial police interrogation after invoking his right to counsel. The U.S. Supreme Court noted that the trial judge believed the officers when they testified that they had not intended to provoke Innis into talking when they discussed among themselves the need to find his gun, and the court held that the officers could not have foreseen that Innis would volunteer to show them where it was. The court ruled that this officer-conversation did not amount to "interrogation." The Innis decision enunciated the definition of "interrogation" that all lower courts-state and federal-must apply:

"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to 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."

Under this definition, three points are obvious: (1) you don't have to speak a single word to be engaged in "interrogation," since "actions" can be the functional equivalent of questions; (2) standard booking questions and custodial instructions and inquiries that are "normally attendant to arrest and custody" are not "interrogation," even if they happen to provoke an incriminating response (which would be admissible); and (3) only speech and actions that could foreseeably prompt an incriminating response are "interrogation" ( in the words of the court, only words or actions that you "should have known" would likely elicit an incriminating response).

Pennsylvania v. Muniz

The Supreme Court used a DUI case to differentiate questions that are likely to elicit incriminating responses from those that are not. Inocencio Muniz was arrested for driving under the influence of alcohol on a Pennsylvania highway. At the station and before Miranda warnings had been given, officers put a series of questions to Muniz and gave him directions for completing sobriety tests, all of which was video and audio taped. Muniz moved to exclude all of his responses, but the Supreme Court found that not all of the officers' words and actions constituted

When officers prompted Muniz to say certain things merely to demonstrate that his speech was slurred and that his coordination was impaired, this was not "interrogation." Also, his uttered comments while he was being directed to take a breathalyzer test were admissible because giving a DUI arrestee such instructions is "normally attendant to arrest" for DUI. These portions of the tape were admissible.

On the other hand, when officers quizzed Muniz as to the date on his sixth birthday, they were seeking "testimonial evidence" that is protected by the Fifth Amendment and Miranda. Asking a suspect to answer a question that requires a verbal response that is incriminating because of its content, rather than its pronunciation, is the functional equivalent of asking him whether he is too drunk to compute the date of his sixth birthday. The evidence of his incorrect response was inadmissible.[PAGEBREAK]

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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