3.8: Chapter 28 - The Miranda Rule- Exceptions

INTERROGATIONS

Chapter 28

The Miranda Rule: Exceptions

In Miranda v. Arizona, the Court summarized its holding as follows: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The Court then explained that “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it,” police would be required to provide certain information—the Miranda warnings—to suspects.

We have learned that this holding spawned controversy about the meaning of “custody” and “interrogation,” as well as over when a suspect’s waiver of rights has been “made voluntarily, knowingly and intelligently.”

In this chapter, we will review three exceptions that the Court has created to the Miranda Rule. Under each of these exceptions, a prosecutor may use statements against a defendant even though (1) those statements were obtained through custodial interrogation and (2) police either did not provide the Miranda warnings or did so but did not obtain a valid waiver. The three exceptions are known as the “impeachment exception,” the “emergency exception” (also known as the “public safety exception”), and the “routine booking exception.” We begin with impeachment.

Supreme Court of the United States

Viven Harris v. New York

Decided Feb. 24, 1971 – 401 U.S. 222

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted the writ in this case to consider petitioner’s claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona may not be used to impeach his credibility.

The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover police officer. At a subsequent jury trial the officer was the State’s chief witness, and he testified as to details of the two sales. A second officer verified collateral details of the sales, and a third offered testimony about the chemical analysis of the heroin.

Petitioner took the stand in his own defense. He admitted knowing the undercover police officer but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6 but claimed it was baking powder and part of a scheme to defraud the purchaser.

On cross-examination petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7—statements that partially contradicted petitioner’s direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner’s counsel the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury.

The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner’s credibility and not as evidence of guilt. In closing summations both counsel argued the substance of the impeaching statements. The jury then found petitioner guilty on the second count of the indictment. The New York Court of Appeals affirmed in a per curiam opinion.

At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona. The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.

Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. ‘[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.’”

Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements. Affirmed.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL, join, dissenting.

The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The “essential mainstay” of that system is the privilege against self-incrimination, which for that reason has occupied a central place in our jurisprudence since before the Nation’s birth. Moreover, “we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. … All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government … must accord to the dignity and integrity of its citizens.” These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes. Moreover, it is monstrous that courts should aid or abet the law-breaking police officer. It is abiding truth that “[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Thus even to the extent that Miranda was aimed at deterring police practices in disregard of the Constitution, I fear that today’s holding will seriously undermine the achievement of that objective. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.

Notes, Comments, and Questions

Justice Brennan’s dissent in Harris raises the concern that police officers will intentionally defy Miranda, knowing that the results of impermissible interrogations can be used to impeach defendants (or to deter them from testifying). The Court of Appeals of Alaska addressed the issue in State v. Batts, 195 P.3d 144 (2008). Following the reasoning of the Harris majority, the Batts Court held that—under Alaska law—statements made during interrogations conducted in violation of Miranda normally may be used for impeachment. However, the Alaska court held that “in cases where the violation of Miranda was either intentional or egregious—by which we mean a violation that would have been obvious to any reasonable police officer”—the resulting statements are inadmissible, even for impeachment. The court’s aim was to balance deterrence of police misconduct (achieved by excluding evidence in cases of especially bad police misbehavior) with the state’s interest in deterring perjury and presenting useful evidence to juries (achieved by allowing impeachment in cases of more minor police wrongdoing). Is that a sensible result? If you were setting policy for your state, would you allow impeachment in all cases of Miranda violations, only in certain cases (perhaps like the Alaska rule), or never (as Justice Brennan advocated)?

In the next case, the Court articulated what is known as the “emergency” or “public safety” exception to the Miranda Rule. Students reading this case should consider two questions. First, is such an exception justified? Second, if so, do the facts presented constitute an “emergency” to which the exception should apply?

Supreme Court of the United States

New York v. Benjamin Quarles

Decided June 12, 1984 – 467 U.S. 649

Justice REHNQUIST delivered the opinion of the Court.

Respondent Benjamin Quarles was charged in the New York trial court with criminal possession of a weapon. The trial court suppressed the gun in question, and a statement made by respondent, because the statement was obtained by police before they read respondent his “Miranda rights.” That ruling was affirmed on appeal through the New York Court of Appeals. We granted certiorari and we now reverse. We conclude that under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.

On September 11, 1980, at approximately 12:30 a.m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y., when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name “Big Ben” printed in yellow letters on the back. She told the officers that the man had just entered an A & P supermarket located nearby and that the man was carrying a gun.

The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head.

Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, “the gun is over there.” Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated that he would be willing to answer questions without an attorney present. Officer Kraft then asked respondent if he owned the gun and where he had purchased it. Respondent answered that he did own it and that he had purchased it in Miami, Fla.

In the subsequent prosecution of respondent for criminal possession of a weapon, the judge excluded the statement, “the gun is over there,” and the gun because the officer had not given respondent the warnings required by our decision in Miranda v. Arizona before asking him where the gun was located. The judge excluded the other statements about respondent’s ownership of the gun and the place of purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York affirmed without opinion.

The Court of Appeals granted leave to appeal and affirmed by a 4-3 vote. It concluded that respondent was in “custody” within the meaning of Miranda during all questioning and rejected the State’s argument that the exigencies of the situation justified Officer Kraft’s failure to read respondent his Miranda rights until after he had located the gun. The court declined to recognize an exigency exception to the usual requirements of Miranda because it found no indication from Officer Kraft’s testimony at the suppression hearing that his subjective motivation in asking the question was to protect his own safety or the safety of the public. For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.

In this case we have before us no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist. Thus the only issue before us is whether Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda.

The New York Court of Appeals was undoubtedly correct in deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it. We agree that respondent was in police custody because we have noted that “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Here Quarles was surrounded by at least four police officers and was handcuffed when the questioning at issue took place. As the New York Court of Appeals observed, there was nothing to suggest that any of the officers were any longer concerned for their own physical safety. The New York Court of Appeals’ majority declined to express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the public, because the lower courts in New York had made no factual determination that the police had acted with that motive.

We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives—their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.

Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.

We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.

In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. As we have in other contexts, we recognize here the importance of a workable rule “to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.

We hold that the Court of Appeals in this case erred in excluding the statement, “the gun is over there,” and the gun because of the officer’s failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. We therefore reverse and remand for further proceedings not inconsistent with this opinion.

Justice O’CONNOR, concurring in the judgment in part and dissenting in part.

Today, the Court concludes that overriding considerations of public safety justify the admission of evidence—oral statements and a gun—secured without the benefit of [Miranda] warnings. Were the Court writing from a clean slate, I could agree with its holding. But Miranda is now the law and, in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures. Accordingly, I would require suppression of the initial statement taken from respondent in this case. On the other hand, nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation, and I therefore agree with the Court that admission of the gun in evidence is proper.

The Miranda Court itself considered objections akin to those raised by the Court today. In dissent, Justice WHITE protested that the Miranda rules would “operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved.” But the Miranda Court would not accept any suggestion that “society’s need for interrogation [could] outweig[h] the privilege.” To that Court, the privilege against self-incrimination was absolute and therefore could not be “abridged.”

Since the time Miranda was decided, the Court has repeatedly refused to bend the literal terms of that decision. To be sure, the Court has been sensitive to the substantial burden the Miranda rules place on local law enforcement efforts, and consequently has refused to extend the decision or to increase its strictures on law enforcement agencies in almost any way. [W]herever an accused has been taken into “custody” and subjected to “interrogation” without warnings, the Court has consistently prohibited the use of his responses for prosecutorial purposes at trial. As a consequence, the “meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures.”

In my view, a “public safety” exception unnecessarily blurs the edges of the clear line heretofore established and makes Miranda’s requirements more difficult to understand. In some cases, police will benefit because a reviewing court will find that an exigency excused their failure to administer the required warnings. But in other cases, police will suffer because, though they thought an exigency excused their noncompliance, a reviewing court will view the “objective” circumstances differently and require exclusion of admissions thereby obtained. The end result will be a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence. “While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, … that rigidity [has also been called a] strength of the decision. It [has] afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise…. [T]his core virtue of Miranda would be eviscerated if the prophylactic rules were freely [ignored] by … courts under the guise of [reinterpreting] Miranda….”

The justification the Court provides for upsetting the equilibrium that has finally been achieved—that police cannot and should not balance considerations of public safety against the individual’s interest in avoiding compulsory testimonial self-incrimination—really misses the critical question to be decided. Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled and that they be excluded from evidence at trial.

The Court concedes, as it must, both that respondent was in “custody” and subject to “interrogation” and that his statement “the gun is over there” was compelled within the meaning of our precedent. In my view, since there is nothing about an exigency that makes custodial interrogation any less compelling, a principled application of Miranda requires that respondent’s statement be suppressed.

Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.

The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda v. Arizona and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court’s longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent.

The majority’s entire analysis rests on the factual assumption that the public was at risk during Quarles’ interrogation. This assumption is completely in conflict with the facts as found by New York’s highest court. Before the interrogation began, Quarles had been “reduced to a condition of physical powerlessness.” Contrary to the majority’s speculations, Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, “the situation was under control.” Based on Officer Kraft’s own testimony, the New York Court of Appeals found: “Nothing suggests that any of the officers was by that time concerned for his own physical safety.” The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers’ concern for the public’s safety.

The majority attempts to slip away from these unambiguous findings of New York’s highest court by proposing that danger be measured by objective facts rather than the subjective intentions of arresting officers. Though clever, this ploy was anticipated by the New York Court of Appeals: “[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety….”

The New York court’s conclusion that neither Quarles nor his missing gun posed a threat to the public’s safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority’s intimations, no customers or employees were wandering about the store in danger of coming across Quarles’ discarded weapon. Although the supermarket was open to the public, Quarles’ arrest took place during the middle of the night when the store was apparently deserted except for the clerks at the checkout counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: “After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant’s gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there.”

In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court’s conclusion that Quarles’ hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court’s findings of fact “deserv[e] a ‘high measure of deference,’” only when deference works against the interests of a criminal defendant.

The majority’s treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today’s opinion, the Court had twice concluded that, under Miranda v. Arizona, police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Now the majority departs from these cases and rules that police may withhold Miranda warnings whenever custodial interrogations concern matters of public safety.

The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public’s safety. If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect’s statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police’s questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect’s guilt and safeguarding the public from danger.

The majority proposes to eliminate this dilemma by creating an exception to Miranda v. Arizona for custodial interrogations concerning matters of public safety. Under the majority’s exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being “deterred” by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this “narrow exception to the Miranda rule,” the majority proposes to protect the public’s safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents.

This case is illustrative of the chaos the “public-safety” exception will unleash. The circumstances of Quarles’ arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was “no evidence in the record before us that there were exigent circumstances posing a risk to the public safety.” Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: “So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety….” If after plenary review two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority’s new rule in the confusion and haste of the real world.

Though unfortunate, the difficulty of administering the “public-safety” exception is not the most profound flaw in the majority’s decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, and invites the government to prosecute through the use of what necessarily are coerced statements.

The majority’s error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of “enlarged protection for the Fifth Amendment privilege” were weighed against “the cost to society in terms of fewer convictions of guilty suspects.” Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, the Miranda Court refused to allow such concerns to weaken the protections of the Constitution.

Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations.

In fashioning its “public-safety” exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority’s only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public’s safety. But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public’s safety are less likely to be coercive than other interrogations, the majority cannot endorse the “public-safety” exception and remain faithful to the logic of Miranda v. Arizona.

The majority’s avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive.

That the application of the “public-safety” exception in this case entailed coercion is no happenstance. The majority’s ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court’s strongest argument in favor of a “public-safety” exception to Miranda is that the police would be better able to protect the public’s safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The “public-safety” exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements.

Indeed, in the efficacy of the “public-safety” exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given “broad scope” “[w]here there has been genuine compulsion of testimony.” Coerced confessions were simply inadmissible in criminal prosecutions. The “public-safety” exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority’s opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment’s dictate that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”

The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.

The majority should not be permitted to elude the Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.

Notes, Comments, and Questions

In her opinion concurring in part, Justice O’Connor wrote that she would not have excluded Quarles’s gun from evidence, even if his initial statement about the gun had been excluded as she thought Miranda required. Because the majority in this case found that a Miranda Rule exception applied, the Court did not decide whether a Miranda violation could lead to the exclusion of physical evidence found as a result of statements obtained after interrogation. We will review how the Court decided this issue later this semester when we turn out attention to the exclusionary rule.

In Justice Marshall’s dissent, he writes that the majority has permitted the use of “coerced statements” against a criminal defendant. But if the statements were truly the result of coercion, then the Due Process Clause of the Fourteenth Amendment should bar the statements as involuntary. Indeed, the majority opinion states, “In this case we have before us no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist.” The disconnect between the dissent and majority opinions illustrates a fundamental disagreement about the Miranda doctrine. In the eyes of the dissent, statements obtained in violation of Miranda are “coerced,” and their admission violates the Fifth Amendment. The majority, by contrast, reasons that Miranda merely created a “presumption” that such statements are involuntary, a presumption created by the Court for its convenience, as well as to promote adherence to constitutional commands. A statement that is presumed compelled can be admitted against a defendant in appropriate circumstances—assuming of course that no actual compulsion is found—without offending the Self-Incrimination Clause.

* * *

We have seen that the Court has resisted applying the Miranda Rule to situations where it could impose inconvenience that—at least in the eyes of the majority—is not worth the cost. For example, in Illinois v. Perkins (Chapter 25), the Court declined to require Miranda warnings during jailhouse questioning of suspects by undercover agents. And in Berkemer v. McCarty (Chapter 24), the Court declined to require officers to perform Miranda warnings during routine traffic stops. Similar logic would support a Miranda exception for routine questions asked during the booking of an arrested suspect. Asking the questions furthers important police goals, and most routine questions—such as asking someone’s name and address—should only rarely elicit incriminating information.

If one accepts this logic and supports a “routine booking” exception, one must still decide what questions fall within the exception. The Court addressed that issue in the next case.

Supreme Court of the United States

Pennsylvania v. Inocencio Muniz

Decided June 18, 1990 – 496 U.S. 582

Justice BRENNAN delivered the opinion of the Court, except as to Part III-C.

We must decide in this case whether various incriminating utterances of a drunken-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment.

I

During the early morning hours of November 30, 1986, a patrol officer spotted respondent Inocencio Muniz and a passenger parked in a car on the shoulder of a highway. When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Muniz’s breath and observed that Muniz’s eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so. But as the officer returned to his vehicle, Muniz drove off. After the officer pursued Muniz down the highway and pulled him over, the officer asked Muniz to perform three standard field sobriety tests: a “horizontal gaze nystagmus” test, a “walk and turn” test, and a “one leg stand” test. Muniz performed these tests poorly, and he informed the officer that he had failed the tests because he had been drinking.

The patrol officer arrested Muniz and transported him to the West Shore facility of the Cumberland County Central Booking Center. Following its routine practice for receiving persons suspected of driving while intoxicated, the booking center videotaped the ensuing proceedings. Muniz was informed that his actions and voice were being recorded, but he was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona. Officer Hosterman first asked Muniz his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age. The officer then asked Muniz, “Do you know what the date was of your sixth birthday?” After Muniz offered an inaudible reply, the officer repeated, “When you turned six years old, do you remember what the date was?” Muniz responded, “No, I don’t.”

Officer Hosterman next requested Muniz to perform each of the three sobriety tests that Muniz had been asked to perform earlier during the initial roadside stop. The videotape reveals that his eyes jerked noticeably during the gaze test, that he did not walk a very straight line, and that he could not balance himself on one leg for more than several seconds. During the latter two tests, he did not complete the requested verbal counts from 1 to 9 and from 1 to 30. Moreover, while performing these tests, Muniz “attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform.”

Finally, Officer Deyo asked Muniz to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. Officer Deyo read to Muniz the Commonwealth’s Implied Consent Law and explained that under the law his refusal to take the test would result in automatic suspension of his driver’s license for one year. Muniz asked a number of questions about the law, commenting in the process about his state of inebriation. Muniz ultimately refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. Muniz then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated.

Both the video and audio portions of the videotape were admitted into evidence at Muniz’ bench trial, along with the arresting officer’s testimony that Muniz failed the roadside sobriety tests and made incriminating remarks at that time. Muniz was convicted of driving under the influence of alcohol. Muniz filed a motion for a new trial, contending that the court should have excluded the testimony relating to the field sobriety tests and the videotape taken at the booking center “because they were incriminating and completed prior to [Muniz’s] receiving his Miranda warnings.” The trial court denied the motion, holding that “‘requesting a driver, suspected of driving under the influence of alcohol, to perform physical tests or take a breath analysis does not violate [his] privilege against self-incrimination because [the] evidence procured is of a physical nature rather than testimonial, and therefore no Miranda warnings are required.’”

On appeal, the Superior Court of Pennsylvania reversed. After the Pennsylvania Supreme Court denied the Commonwealth’s application for review, we granted certiorari.

II

This case implicates both the “testimonial” and “compulsion” components of the privilege against self-incrimination in the context of pretrial questioning. Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the booking center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed. We focus first on Muniz’s responses to the initial informational questions, then on his questions and utterances while performing the physical dexterity and balancing tests, and finally on his questions and utterances surrounding the breathalyzer test.

III

In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz’s answers were incriminating. As the state court found, “Muniz’s videotaped responses … certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle.” The Commonwealth argues, however, that admission of Muniz’s answers to these questions does not contravene Fifth Amendment principles because Muniz’s statement regarding his sixth birthday was not “testimonial” and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn.

A

We agree with the Commonwealth’s contention that Muniz’s answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to “the lack of muscular coordination of his tongue and mouth,” is not itself a testimonial component of Muniz’s responses to Officer Hosterman’s introductory questions. [W]e [have] held that “the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” [A] person suspected of driving while intoxicated [can] be forced to provide a blood sample, because that sample [is] “real or physical evidence” outside the scope of the privilege and the sample [is] obtained in a manner by which “[p]etitioner’s testimonial capacities were in no way implicated.”

We have since applied the distinction between “real or physical” and “testimonial” evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. [W]e agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice does not, without more, compel him to provide a “testimonial” response for purposes of the privilege.

B

This does not end our inquiry, for Muniz’s answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer’s content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date) that his mental state was confused. The Commonwealth and the United States as amicus curiae argue that this incriminating inference does not trigger the protections of the Fifth Amendment privilege because the inference concerns “the physiological functioning of [Muniz’s] brain,” which is asserted to be every bit as “real or physical” as the physiological makeup of his blood and the timbre of his voice.

But this characterization addresses the wrong question; that the “fact” to be inferred might be said to concern the physical status of Muniz’s brain merely describes the way in which the inference is incriminating. The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. In Schmerber [v. California, 384 U.S. 757 (1966)], for example, we held that the police could compel a suspect to provide a blood sample in order to determine the physical makeup of his blood and thereby draw an inference about whether he was intoxicated. This compulsion was outside of the Fifth Amendment’s protection, not simply because the evidence concerned the suspect’s physical body, but rather because the evidence was obtained in a manner that did not entail any testimonial act on the part of the suspect. In contrast, had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology. In this case, the question is not whether a suspect’s “impaired mental faculties” can fairly be characterized as an aspect of his physiology, but rather whether Muniz’s response to the sixth birthday question that gave rise to the inference of such an impairment was testimonial in nature.

Th[e] definition of testimonial evidence reflects an awareness of the historical abuses against which the privilege against self-incrimination was aimed. “Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion.” At its core, the privilege reflects our fierce “‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt’” that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury.

We need not explore the outer boundaries of what is “testimonial” today, for our decision flows from the concept’s core meaning. Because the privilege was designed primarily to prevent “a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,” it is evident that a suspect is “compelled … to be a witness against himself” at least whenever he must face the modern-day analog of the historic trilemma—either during a criminal trial where a sworn witness faces the identical three choices, or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar concerns. Whatever else it may include, therefore, the definition of “testimonial” evidence [] must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the “cruel trilemma.” This conclusion is consistent with our recognition [] that “[t]he vast majority of verbal statements thus will be testimonial” because “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.” Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the “trilemma” of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component.

[T]he sixth birthday question in this case required a testimonial response. When Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma. By hypothesis, the inherently coercive environment created by the custodial interrogation precluded the option of remaining silent. Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). The content of his truthful answer supported an inference that his mental faculties were impaired, because his assertion (he did not know the date of his sixth birthday) was different from the assertion (he knew the date was [correct date]) that the trier of fact might reasonably have expected a lucid person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response.

The state court held that the sixth birthday question constituted an unwarned interrogation for purposes of the privilege against self-incrimination and that Muniz’s answer was incriminating. The Commonwealth does not question either conclusion. Therefore, because we conclude that Muniz’s response to the sixth birthday question was testimonial, the response should have been suppressed.

C

The Commonwealth argues that the seven questions asked by Officer Hosterman just prior to the sixth birthday question—regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age—did not constitute custodial interrogation as we have defined the term in Miranda and subsequent cases. In Miranda, the Court referred to “interrogation” as actual “questioning initiated by law enforcement officers.” We have since clarified that definition, finding that the “goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to ‘its functional equivalent.’” [T]he Court [has] defined the phrase “functional equivalent” of express questioning to include “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. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” However, “[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining” what the police reasonably should have known. Thus, custodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to “have … the force of a question on the accused,” and therefore be reasonably likely to elicit an incriminating response.

We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we define[] the term merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the [Rhode Island v.] Innis test focuses primarily upon “the perspective of the suspect.” We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” The state court found that the first seven questions were “requested for record-keeping purposes only,” and therefore the questions appear reasonably related to the police’s administrative concerns. In this context, therefore, the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed.

IV

During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda.

The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[r]equiring a driver to perform physical [sobriety] tests … does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” With respect to Muniz’s verbal statements, however, the court concluded that “none of Muniz’s utterances were spontaneous, voluntary verbalizations,” and because they were “elicited before Muniz received his Miranda warnings, they should have been excluded as evidence.”

We disagree. Officer Hosterman’s dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not “words or actions” constituting custodial interrogation, with two narrow exceptions not relevant here. The dialogue also contained limited and carefully worded inquiries as to whether Muniz understood those instructions, but these focused inquiries were necessarily “attendant to” the police procedure held by the court to be legitimate. Hence, Muniz’s incriminating utterances during this phase of the videotaped proceedings were “voluntary” in the sense that they were not elicited in response to custodial interrogation.

Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania’s Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. After offering to take the test only after waiting a couple of hours or drinking some water, Muniz ultimately refused.

We believe that Muniz’s statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial. As did Officer Hosterman when administering the three physical sobriety tests, Officer Deyo carefully limited her role to providing Muniz with relevant information about the breathalyzer test and the Implied Consent Law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily “attendant to” the legitimate police procedure and were not likely to be perceived as calling for any incriminating response.

V

We agree with the state court’s conclusion that Miranda requires suppression of Muniz’s response to the question regarding the date of his sixth birthday, but we do not agree that the entire audio portion of the videotape must be suppressed. Accordingly, the court’s judgment reversing Muniz’s conviction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Chief Justice REHNQUIST, with whom Justice WHITE, Justice BLACKMUN, and Justice STEVENS join, concurring in part, concurring in the result in part, and dissenting in part.

I join Parts I, II, III-A, and IV of the Court’s opinion. In addition, although I agree with the conclusion in Part III-C that the seven “booking” questions should not be suppressed, I do so for a reason different from that of Justice BRENNAN. I dissent from the Court’s conclusion that Muniz’s response to the “sixth birthday question” should have been suppressed.

The Court holds that the sixth birthday question Muniz was asked required a testimonial response, and that its admission at trial therefore violated Muniz’s privilege against compulsory self-incrimination.

As an assumption about human behavior, this statement is wrong. Muniz would no more have felt compelled to fabricate a false date than one who cannot read the letters on an eye chart feels compelled to fabricate false letters; nor does a wrong guess call into question a speaker’s veracity. The Court’s statement is also a flawed predicate on which to base its conclusion that Muniz’s answer to this question was “testimonial” for purposes of the Fifth Amendment.

The sixth birthday question here was an effort on the part of the police to check how well Muniz was able to do a simple mathematical exercise. Indeed, had the question related only to the date of his birth, it presumably would have come under the “booking exception” to Miranda v. Arizona. The Court holds in this very case that Muniz may be required to perform a “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test, all of which are designed to test a suspect’s physical coordination. If the police may require Muniz to use his body in order to demonstrate the level of his physical coordination, there is no reason why they should not be able to require him to speak or write in order to determine his mental coordination. That was all that was sought here. Since it was permissible for the police to extract and examine a sample of Schmerber’s blood to determine how much that part of his system had been affected by alcohol, I see no reason why they may not examine the functioning of Muniz’s mental processes for the same purpose.

Surely if it were relevant, a suspect might be asked to take an eye examination in the course of which he might have to admit that he could not read the letters on the third line of the chart. At worst, he might utter a mistaken guess. Muniz likewise might have attempted to guess the correct response to the sixth birthday question instead of attempting to calculate the date or answer “I don’t know.” But the potential for giving a bad guess does not subject the suspect to the truth-falsity-silence predicament that renders a response testimonial and, therefore, within the scope of the Fifth Amendment privilege.

For substantially the same reasons, Muniz’s responses to the videotaped “booking” questions were not testimonial and do not warrant application of the privilege. Thus, it is unnecessary to determine whether the questions fall within the “routine booking question” exception to Miranda Justice BRENNAN recognizes.

I would reverse in its entirety the judgment of the Superior Court of Pennsylvania. But given the fact that five members of the Court agree that Muniz’s response to the sixth birthday question should have been suppressed, I agree that the judgment of the Superior Court should be vacated so that, on remand, the court may consider whether admission of the response at trial was harmless error.

Notes, Comments, and Questions

The Muniz majority referred to the “Star Chamber,” an English court that apparently took its name from images of stars decorating the ceiling of the room in which it met. Its history is complicated. For purposes of this course, it will be sufficient for students to know that the term “Star Chamber”—when used by American judges—generally refers to a court with unfair procedures that can be compared to those of the Inquisition. In particular, in America the court’s name is strongly associated with compulsory self-incrimination. For a detailed discussion of the origins of the privilege against self-incrimination in England, see John H. Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994).

This chapter concludes our main unit on the Miranda Rule, to which we will return briefly when studying the exclusionary rule. In our next two chapters, we will examine the constraints on interrogations imposed by the Court pursuant to the Assistance of Counsel Clause of the Sixth Amendment.