If Miranda only applies to custodial interrogation, can an officer continue interrogating a suspect who is not in custody, even after the suspect invokes Miranda? What if the officer stops and convinces the suspect that he should change his mind and talk to the officer? So long as the confession is ultimately voluntary, isn't this OK under the Constitution?

I agree. Miranda does not apply unless under custodial interrogation. see Abernathy v. State, 963 S.W.2d 822, out of San Antonio

OK, so if an officer is interviewing a suspect out of custody, and the suspect says, "I don't want to talk anymore," what can the officer say or do to continue the interview?

If it is a noncustodial interview, then the law as I read it suggests that one need not give the warnings and get the waivers. Miranda creates a right to the warnings if in custody ... the rights are created by the Constitution (and the Supreme Court's spin); and, these rights are not suspended or negated merely because one is not in custody.

The mere fact that it is noncustodial does not mean the citizen does not have the rights. We all have the right to demand to speak to a lawyer before answering questions put to us by "the law" or to refuse to answer if the answer might incriminate us. If a right (as outlined in Miranda/38.22) were properly and unequivocably invoked, the mere fact that it was noncustodial doesn't seem to be a winner if the police choose to proceed. The citizen has the right to remain silent, to terminate the interview, etc. even if not in custody. If after invoking, the police lead the citizen to believe he can't leave by continuing to interrogate, then you have constructive custody and down you go. The citizen must choose to proceed, i.e. re-initiate the interview.

If the officer ignores the invocation of a right, Miranda or 38.22, and proceeds to interrogate, then a defense motion, in my opinion, should be built around 38.23 with a fall back position that it became "constructive cutody" as the officers lead him to believe he wasn't free to leave by interrogating after the unequivocable invocation of the right ...

What can be safely said by the officer after the citizen invokes ... "Get out of here" ..."Good bye" ... "Have a nice day" ... ?

How about "Make my day" - just kidding ...

Looking forward to your ideas on the subject if I have the wrong spin on it.

Michigan v. Mosley applies only to the desire of a suspect in custody to cut off questioning. The court has said that an interrogative situation might become so coercive as to overbear one's will to resist and thus bring about a confession not freely self-determined (sans a Miranda warning and waiver). Beckwith v. U.S., 425 U.S. at 348. But, I think the officer has no duty to immediately terminate the interview and can obtain a valid confession so long as he does not first cross the line set forth in Stansbury v. California (doing something that the suspect would objectively take as restricting his freedom of action). Mere mention of an attorney or desire for consultation does not mean the police cannot delicately get the suspect back on track. But it must be done pretty quickly and carefully.

Can the suspect's uncooperativeness itself be used as evidence against him? An invocation of Miranda during custodial interrogation may not be used because it is the mere invocation of a legal right to refuse to talk.

Is uncooperative different from remaining silent? If the suspect gives disinformation or outright lies prior to arrest I would think that fact is admissible. If he merely remains silent, and later testifies he did so as part of his constitutional right, then it seems hard to say his silence can be used whether he cited Miranda or anything else at the time. At least that's how I read Doyle. In other words, as Stephen pointed out, the right to remain silent is not tied to an arrest or even interrogation for that matter. We must be thankful so many criminals don't utilize it, before or after Miranda warnings.

If a person is not subject to custodial interrogation, Miranda does not apply. But, other provisions can apply. Regardless of whether a person is in custody, if adversarial proceedings have been commenced against a him the Sixth Amendment right to counsel attaches. See Brown v. Mississippi, 297 U.S. 278 (1936); Alvarado v. State, 853 sw2d 17, 19 n.4 (1993). And, even if a person is not in custody and formal adversarial proceedings have not been initiated, due process still requires a voluntary confession. See McNeil v. Wisconsin, 501 U.S. 171 (1991). A very broad reading of the final phrase of CCP art 38.21, could also result in the application the requirements of 38.22 to non-custodial questioning.

This is why we teach our investigators to take any story the suspect wants to tell. A lie is a confession, once it is proven to be a lie.

Today's investigator must use psychology, not coercion, to gather information from a noncustodial suspect. They should depend upon that most human of all flaws: we all love to talk.

And, the longer a suspect is left out of custody, the more the suspect will talk, thinking that this must be working.

I had an intake call today about a person already pending trial on a UUMV. He has a court appointed lawyer in that case. While he was in custody, the police officer received a voluntary statement from him in which he told an exaggerated story about a burglary at the dealership in which the car was stolen, but that he wasn't there for the burglary. He was not a suspect in he burglary at the time of the statement. Upon further investigation, there is probable cause that he was involved in the burglary as well as the UUMV. That statement can be used against him, right? Also, has his sixth amendment right to counsel kicked in on the new case that comes out of the same criminal episode, if the police want to question him? Is this situation covered by the Cobb case? Is there a case on point that I missed?

[This message was edited by A.J.Walker on 11-06-02 at .]

A.J; even if your judge gets squirrly
on you and won't let it in b/c of
5th or 6th amend. problems, it can
still be used for impeachment if the
defendant testifies.
see Garza v. State 18 SW3d 813 or
Michigan v. Harvey 494 US 344

if the defendant does not testify, but
his hearsay statements are admitted i.e.
"he told me he didn't do it"
you can bring it in under Rule 806
(attacking hearsay declarant's credibility)
see Appling v. State 904 SW2d 912

A.J., maybe the upcoming ruling in that most important of confessions by persons suspected of multiple crimes cases, Virginia v. Malvo, will help. I'm sure everyone will try to get it right in that case.

The media coverage of the Malvo confession points out the double standard among defense lawyers. Miranda was created in response to defense litigation. They wanted a bright line standard for assuring a voluntary confession. So, we give the warnings and take the waiver and confession, even though the procedure is more than any individual case may require to guarantee voluntariness.

So now, when a confession is obtained, defense attorneys ignore the rules and argue that the confession should be suppressed. Not because there was a Miranda violation, but because they simply believe that police shouldn't be questioning a person, in this case a 17 year old.

Defense attorneys and the media continue to sell the idea that getting a confession is some sort of shameful business. Cheating, if you will. Why, everyone knows that every criminal case can be solved with CSI-like precision without a confession.

And, of course, in CSI and all other police shows, defendants are not called in until they have been proven guilty beyond a reasonable doubt by physical evidence, and then they sit there and confess while their defense attorney sits beside them.

These myths must be punctured. Confessions are good, both for the soul and the system. Carry on.