CHATER TWO

PROCEDURAL RIGHTS OF SUSPECTS DURING INTERROGATION

2.1. Introduction

Miranda warning is a mechanism to protect from police abuse unless other fully effective means
are devised to inform the accused person of the right against self-incrimination. The American
criminal justice is responsible and plays a great role in creating and developing Miranda
warning. The US Supreme Court decided over 50 years ago that interrogation of a person can
only occur if police advise the person of certain rights guaranteed by the fifth and sixth
amendments to the US constitution.1

2.2. The Standard of Miranda Warning

In the absence of any other procedural safeguards that an agency might have, a law enforcement
officer may follow the Miranda wording as one way to ensure that a citizen in custody and
interrogation by police knows of his or her right against self-incrimination and his or her right to
attorney, either hired or appointed, to represented him or her at every stage of a criminal
prosecution once has been initiated. Its specific wording is not required, nor is the Miranda
warning itself a constitutional right.2 The only requirement is that police must provide sufficient
procedure safeguards to satisfy the court that a suspect’s protection against self-incrimination is
assured. One form of the Miranda wording is given below;3

 You have a right to remain silent. Do you understand?

 Anything you say may be used against you in court of law. Do you understand?

 You have the right to the presence of an attorney before and during any questioning. Do
you understand?

 If you can’t afford an attorney, one will be appointed for you free of charge before any
questioning. Do you understand?

2.3. Exception to the Rule

1
Gregory Declue(PhD), oral Miranda warnings: a check list and model presentation, 2007.
2
Edward E.Peoples, basic criminal procedures, 2000. P 75
3
Id p 76

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If the suspect is taken in to police custody and the police began to ask him questions relating to
the crime, he must be warned of his Miranda rights. Any confession may be used against the
suspect, if he or she had been warned during interrogation of his or her rights and waived them
voluntarily. According to Edward E. Peoples, Miranda warning is required only when two
specific conditions are present cumulatively.

 When a suspect is taken in to custody, or otherwise deprived of freedom in a significant way.

 If and when the person is subject to questioning about a crime as a suspect by a police
officer.
But, when is the individual supposed to be under custody and being interrogated? We need to
clarify the two words to have common understanding.

Custody

A person is in custody if he has been formally arrested or if he is restrained to the degree that a
reasonable person would associate with a formal arrest.4 Custody exists when a reasonable
person, based on the objective circumstances of an encounter, would assess the situation as an
arrest.5It is important to note, however, that ‘custody’ and ‘arrest’ are not necessarily
synonymous. If a person is formally arrested, he obviously is in custody. It is quite possible,
however, to be in custody but not under arrest. Hence, no custody means no Miranda .

Interrogation

An interrogation is defined in Miranda Vs. Arizona case as “questioning initiated by law

enforcement officers after a person has been taken in to custody or otherwise deprived of his
freedom in a significant way.” Interrogations takes place when police ask investigative questions,
engage in words or engage in conduct that they know are likely to generate an incriminating
response from the suspect.6 Not all direct questions are considered to be interrogatory, though;
thus some pointed, direct questions would not be subject to Miranda rules. For example, name,
date of birth, and address would not normally be subject to Miranda, even if the way the suspect
answered the question was incriminating.

4
Supra note 6 (cited as Beckham, 2008, p 141)
5
Supra note 6 (cited as klotter, et al, 1999)
6
Ibid

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Accordingly, the law enforcement officer may proceed to questioning without giving the Miranda
warning in the following exceptions;

2.3.1. Personal Information

The police officer need not required to give Miranda, while asking the suspect about his personal
information like name, address, date of birth, social security number, status etc. Such booking
questions often are not considered part of interrogation based on the theory that they are not
designed to elicit incriminating information.

2.3.2. Physical Evidence

Finger prints, blood samples, hair samples, DNA test, etc. are not protected by Miranda rules. 7
The US Supreme Court said in a case Schemerber V. California (1966) that “the privilege against
self-incrimination is not available…where there is not even a shadow of compulsion to testify
against him, or otherwise provide the state with evidence of a testimonial or communicative
nature.8 Therefore, the police officer may obtain physical evidence without giving Miranda
warning to the suspect.

2.3.3. Public Safety Exception

Following the Boston marathon bombing, there was much discussion about the public safety
exception to Miranda warnings.9 There are certain limited situations when officers are permitted
to ask questions without Miranda warnings. This is an emergency exception to the Miranda rule.
The US Supreme Court in New York V. Quarles, held that an officers immediate concern with
protecting the safety and welfare of the public represented a justified exception to the Miranda
rule.10

2.4. Miranda Rules and the Right to Remain Silent and to Counsel

2.4.1. The right to remain silent

7
Supra note 6, p 13
8
Ibid
9
Dvid J. Shestokas, the origin and meaning of Miranda warning,2013.
10
Supra note 6 p 14

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The right to remain silent is a legal principle which guarantees any individual the right to refuse
to answer questions from law enforcement officers or court officials. It is a legal right
recognized, explicitly or by convention, in many of the world's legal systems.

The right covers a number of issues centered on the right of the accused or the defendant to
refuse to comment or provide an answer when questioned, either prior to or during legal
proceedings in a court of law. This can be the right to avoid self-incrimination or the right to
remain silent when questioned. The right may include the provision that adverse inferences
cannot be made by the judge or jury regarding the refusal by a defendant to answer questions
before or during a trial, hearing or any other legal proceeding.11 

2.4.2. Right to counsel 

Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers)
and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the
defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right
to a fair trial.12 One of the rights guaranteed the suspect is the right to have an attorney to help
him if he so desire. The Miranda warning clearly states that you have the right to consult with an
attorney and to have him present during custodial interrogation.13

2.4.3. The right to remain silence at trial,

The right to silence is a legal protection given to people undergoing police interrogation or trial.
The law is recognized, explicitly or by convention, in many of the world's legal systems. The
right covers a number of issues centered around the right to refuse to answer questions. This can
be the right to avoid self-incrimination or the right to not answer any questions. The right usually
includes the provision that adverse comment or inferences cannot be made by the judge or jury
about the refusal to answer questions before or during a trial or hearing. The right extends from
the moment of suspension of freedom of movement (usually arrest) to the end of the trial14
11
From Wikipedia, the free encyclopedia
12
Ibid 11
13
Supra note 6 p 24
14
Speech by Lloyd Babb SCDirector of Public Prosecutions (NSW)The Right to Silence, Silence as Evidence,
Weissensteiner Case

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2.5. The Position of Common Law Countries the Right to Remain Silent at Trial Criminal
Justice System

2.5.1. Canada

The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of
Rights and Freedoms. The accused may not be compelled as a witness against himself in
criminal proceedings, and therefore only voluntary statements made to police are admissible as
evidence. Prior to an accused being informed of their right to legal counsel, any statements they
make to police are considered involuntarily compelled and are inadmissible as evidence. After
being informed of the right to counsel, the accused may choose to voluntarily answer questions
and those statements would be admissible.15 R. v. Noble, [1997] 1 S.C.R. 874 is a leading
decision of the Supreme Court of Canada on the right to silence under section 11(c) of the
Canadian Charter of Rights and Freedoms. The court held that the silence of an accused cannot
be given any independent weight.

A building manager found two young men, one named Sean Jeffrey Noble, in the building's
parking lot. One was attempting to break into a car using a screwdriver. He asked Noble for
identification, to which he provided his driver's license. The manager held onto the license and
called the police. At trial, the manager could not identify Noble without the driver's license. The
judge allowed the use of the picture but noted that though it provided for a tougher case to meet
the accused still remained silent.

The judge inferred that it was permissible to draw a negative inference from this silence that
strengthened the Crown's case. Noble was convicted, but the judgment was set aside on appeal.
Justice Soyinka, with whom a majority of the Supreme Court of Canada agreed, dismissed the
appeal. He held that there can be no independent weight given to an accused silence. He justified
this on the basis that to adduce weight to silence would violate the right to silence and the
presumption of innocence under the Charter16.the Canada constitution give more protection to
the individual right to remain silent from suspicion freedom of movement to end of trial.

15
Ibid 14

16
Ibid ,p 3

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 2.5.2. USA

Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill
of Rights specifically, codifies the right to silence. In the United States the drawing of an adverse
inference is absolutely prohibited. A majority of the Supreme Court in Griffin 380 US 609
(1965) held that the drawing of an adverse inference from an accused’s right to silence would
infringe the Constitution. In Carter 450 US 288 (1981) the Supreme Court added that, if re
quested by the accused, the trial judge should instruct the jury not to draw such an inference.17

2.5.3. England
The Criminal Justice and Public Order Act 1994 provide statutory rules under which adverse
inferences may be drawn from silence. Adverse inferences may be drawn in certain
circumstances where before or on being charged, the accused:
 Fails to mention any fact which he later relies upon and which in the circumstances at the
time the accused could reasonably be expected to mention;
 Fails to give evidence at trial or answer any question; fails to account on arrest for
objects, substances or marks on his person, clothing or footwear, in his possession, or in
the place where he is arrested; or
 Fails to account on arrest for his presence at a place.
Where inferences may be drawn from silence, the court must direct the jury as to the limits to the
interferences which may properly be drawn from silence. There may be no conviction based
wholly on silence (s 38)18.

2.6. Right To Remain Silent At Pretrial Stage Of Criminal Justice System

2.6.1. Constitutional the Right to Remain Silent

The “right to remain silent” is well-known to anyone who watches movies or TV shows about police, but the  constitutional
rights that the statement represents are not always very well understood. The Fifth Amendment to the U.S. Constitution protects
people from being compelled to give testimony that could incriminate them. This is not the same as saying that a person has a

17
Ibid p,3
18
ibid

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right to silence at all times. In some situations, police may use silence itself as incriminating evidence. The Supreme Court has
held that police must stop questioning suspects once they assert the right to counsel, but it has also held that a person must
affirmatively invoke the right to silence on draw such an inference so silent at trial sole not guilt it is constitutional right of
accused19

2.6.2. Silence during Police Interviews or Interrogations

The question of whether a person has a right to silence, essentially meaning a right to refuse to speak to police or answer their
questions, has no simple answer. As a very general rule, no one is obligated to speak to the police, but even non-verbal
communication can, in some situations, be incriminating. The Supreme Court’s decision in Miranda v.Arizona,  384 U.S. 436
(1966), which gave us the well-known Miranda warnings, requires police to cease any and all interrogation once a person has
invoked the right to an attorney, and it holds that any statements made afterwards are inadmissible in court. This only applies,
however, after police have advised the person of their Miranda rights, which they are only obligated to do once they have placed
that person under arrest.20

So the effect of silent at trail and pretrial stage of criminal justice system are at trial stage silent affect the constitutional right of
public prosecutor to question cross examination for accused, in US case the right to remain silent at trial criminal justice system
the sole reason silent not guilt. Because the right to remain Silent extends from the moment of suspension of freedom of
movement (usually arrest) to the end of the trial. So public prosecutor has obligation to proof beyond reasonable doubt. The
prospect of an adverse inference must inevitably exert pressure on the accused to not exercise his right to silence and the adverse
inference does use the accused as a source of self-incrimination. So US and Canada case the adverse inference of silent does not
given result guilt.

19
https://www.justia.com/criminal/procedure/miranda-rights/right-to-silence/
20
Ibid 18