Durability, "stickiness" of Miranda warnings

Say I’m a hardened criminal. I’ve been arrested any number of times and properly Mirandized every time. Then i’m taken into custody and interrogated, but not Mirandized. For some unfathomable reason I confess, and my lawyer later challenges the confession on the grounds that I wasn’t properly Mirandized. What’s likely to happen if the prosecutor were to argue that based on my long criminal history and my having been Mirandized x number of times previously I was aware of my rights?

Now, say I’m a non-hardened criminal, never been Mirandized before. The police pick me up, Mirandize me, interrogate me and let me go. Some time in the future they pick me back up again on the same matter, don’t re-Mirandize me and for some inexplicable reason I confess. My lawyer challenges it, no Miranda. Does the previous Mirandizing carry over to the new interrogation? Does the time lapse between the two interrogations make a difference, i.e. a day later the confession stands but a month or a year later it doesn’t? Does it make a difference if I get Mirandized regarding one matter but the second interrogation is on another matter?

Assume for the sake of the scenarios that all interrogations would otherwise require Miranda. I don’t want to get sidetracked into custodial vs non-custodial or other side issues.

IIRC, you have to be Mirandized before questioning if you are arrested, every time. There is no “hold-over.” You must be read your rights every time. If you have been in custody the entire time, then I think the first reading stands. But if you have been released and then re-arrested, they have to Mirandize you again.

I’m sure a cop or lawyer will be along soon to expound on this.

I’d like to chime in, when I was arrested they handed me a stack of papers to sign before going before the commisioner to set my bail. In that stack of papers was my miranda rights that I had to sign. I thought that was odd. So they didn’t actually read them to me.

::: bump :::


For the hardened criminal, your defense attorney would argue to the judge that you did not get a proper Miranda warning that specific time when you confessed, and thus your confession is inadmissable in court.

The prosecuting attorney would that ‘this guys’ been arrested over 25 times in his life, including 5 times in the past year alone. Each of those times he got the Miranda warning. He knows his rights. He could probably recite the warning better than most cops!’. But that’s a weak argument, and he’d have a hard time persuading a judge to accept it. The judge would worry about what an appeals court would think of this.

Most likely the Judge would exclude it, and the prosecution would have to rely on other evidence, without the confession, to persuade the jury. (And the other evidence can’t include evidence they found as a result of the confession. If he confesses that he hid the weapon somewhere, so they go there and find it, with his fingerprints on it – they can’t use that as evidence since it came from the improper confession.)

Note that the discussion of Miranda warnings & past arrests would all be before the judge only, without the jury being included at all at this point.

More than habitual criminal, cops are habitual arrestors. They arrest people every day. They don’t want this to go to waste in court, so they are very careful to give Miranda warnings. Often the arresting officer at the scene does it, the detective at the station does it before any interrogation, and the processing officer at the jail does it yet again, often in writing (like diggleblop mentioned).

Actually, that brings up somewhat more specific question than the OP: Has any US appellate court explicitly considered the persistence of Miranda warnings? If so, at what level? On which courts is that precedent binding?

IANAL and I haven’t done a lot of research on this, just a few quick buzzes through Lexis. The information in this post may be, but probably isn’t, slightly better than something generated by a chimp with a typewriter.

Scalia, in a dissenting opinion in Minnick v. Mississippi, 498 U.S. 146 (1990), was incredulous about a defendant’s claim that his rights had been violated:

Justice Kennedy’s opinion, of course, had drawn the conclusion that Scalia is arguing against (that a request for counsel is, in the OP’s words, durable). Chief Justice Rehnquist joined Scalia in the dissent, with Kennedy joined by White, Marshall, Stevens, Blackmun, and O’Connor, with Souter not taking part.

Leaving aside the moral right or wrong of the decision, I wouldn’t be surprised if a case brought before the Roberts Court found that Miranda is more durable than the current precedents hold it to be. (NOTE: WAGing to follow. Read at risk of losing brain cells.) Scalia wrote the dissent, and was joined by Rehnquist; Roberts is ideologically very similar to Rehnquist, of course, and it would shock me if Thomas and Alito had a different viewpoint on this one. I’d expect Stevens, Ginsburg, Breyer, Souter and Kennedy to side with Kennedy’s opinion in the Minnick case. However, it seems to me that the decision in the 2006 knock-and-announce case (Hudson v. Michigan), although a plurality decision, signals that the Court is willing to contract the broad rights that have been granted to suspects in the past. I wouldn’t be surprised if Kennedy was willing to hold that, at least in the easy cases (for example, a hardened criminal with no history of mental illness who confessed without Miranda while not under the influence of drugs and who had been Mirandized the previous day, also while not under the influence of drugs).

Again, just a WAG.

Minnick, though, is about the durability of the assertion of one’s Miranda rights.

You’re right, of course. I was just pointing out that Scalia’s dissent showed a willingness to believe that the defendant was cognizant of his rights, and that given a chance, I’d imagine the Roberts Court would be likely to hold that way.