I have a video at the booking room of a defendant who was involved in an accident. He has been indicted for Intox assault and Intox manslaughter. Defendant is highly intoxicated as apparent from video.

Appears that Defendant passes out while being mirandized. At a minimum he is not paying attention. Do I have a miranda problem?

I don't see how. It's the jury hearing the invocation of rights that's problematic, not the reading itself. If he was passed out, presumably, he didn't invoke, right?

If he passed out during the Miranda warnings, I'm assuming that he didn't invoke any of his rights and that he didn't make any statements. If not, then you clearly should not have a problem. The entire video should be admissible to show intoxication.

Couldn't you also remove the audio portion of the tape? Surely video only of drunk passing out/falling all over himself could not be considered "testimonial."

If no statements were made by defendant, no warnings are required. The warnings and subsequent waiver are just a statutory and constitutional prerequisite for the admissiblilty of the defendant's statement.

I'm with Ken and the other posters. If, after the warnings, you have only non-testimonial behavior on the videotape, Miranda is irrelevant. But if the defendant does speak after the warnings, then you need to analyze whether the statements are testimonial or not (they usually are!). If they are, absent a showing the defendant knowingly and voluntarily waived his rights (difficult to show here?), you should not be allowed to introduce the statements.

[This message was edited by John Stride on 02-01-06 at .]

I would agree with the others above. If there is simply conduct with no statement, then Miranda wouldn't apply.

However, I don't agree with John's use of the term "testimonial" as to statements that wouldn't be admissible. Miranda, and Article 38.22 for that matter, only apply to custodial interrogation. If the officer was asking questions intended to elicit an incriminating response, then you have a problem because that is interrogation and it seems clear from your facts that the suspect was in custody. However, routine book-in questions have been held not to be interrogation. In addition, if the guy was really drunk and running his mouth without any action of the officer (i.e. interrogation), then whatever he said is fair game.

Sammy,
Aren't you saying the same thing as me? See Pennsylvania v. Muniz, 496 us 582 (1990).

John,
I think we are probably saying the same thing. As I read the case you cited, "testimonal" is used to describe a response that goes beyond showing the suspect's physical charactistics due to its content. On the other hand, non-testimonial is used to describe an answer showing the suspect's physical characteristics. For example, the Court of Criminal Appeals has held the field sobriety tests to be non-testimonial. I think we both agree that "non-testimonial" responses are fair game.

However, I don't think that is the end of the inquiry. Whether or not it is "testimonial" doesn't matter if it isn't also the result of custodial interrogation. In the case you cited, the Supreme Court found that the officer's question about the suspect's sixth birthday called for a "testimonial" response" that should not have been admitted. However, the response has to be both "testimonial" and also the product of "custodial interrogation" to be inadmissible.