7.1 - Preliminary Hearings7.2 - Pretrial Conferences7.3 - Pretrial Motions Processs7.4 - Use of Statements7.5 - Use of Seized Evidence7.6 - Eyewitness Identification Procedures7.7 - Interlocutory Appeals7.8 - Sentencing7.9 - Boulder Integrated Treatment Court


In ancient times, the interrogation of suspected criminals often proceeded by means of torture. The authorities who practiced torture believed that they could force people to tell the truth. While they may have been successful on occasion, many people confessed to crimes they did not commit simply in order to stop the torture. Modern America condemns torture and other forms of physical abuse as a method of dealing with suspected criminals. Such statements are considered involuntary, and therefore unreliable. Statements obtained through physical coercion are inadmissible for any purpose.

In modern times, the United States and Colorado Constitutions provide certain limitations on the use by the government of the statements of a person accused of a crime. The Fifth Amendment to the United States Constitution provides that no person "shall be compelled, in any criminal case, to be a witness against himself." Section 18 of Article II of the Colorado Constitution provides that "no person shall be compelled to testify against himself in a criminal case."

These two amendments have been interpreted to provide for more than a simple ban on calling a criminal defendant to testify at trial. They have also been interpreted to bar any statements that were obtained by the police in an unconstitutional fashion. Because of concerns about police interrogation tactics, the United States Supreme Court held, in a case titled Miranda v. Arizona, that the police must warn a suspect who is in custody of his or her constitutional rights before interrogating the suspect. This warning is now known as the Miranda advisement.

The Miranda advisement requires the police to inform a suspect (1) of the right to remain silent; (2) that anything the suspect says can be used as evidence in court; (3) of the fact that the suspect has the right to an attorney present during questioning, and (4) that the government will provide an attorney if the suspect cannot afford to hire one. If the police fail to properly warn the suspect, statements obtained as a result of the interrogation may not be used against the defendant at trial.

This rule that improperly obtained statements may not be used against the defendant is called the exclusionary rule. In this context, the exclusionary rule is designed to ensure that persons being interrogated by the police know their rights, and to deter police misconduct.

There are several important limits on the application of the exclusionary rule to statements. The rule does not apply to statements made by a person is not in custody. A consensual encounter between a person and a law enforcement official will not trigger the Miranda requirements. But even many non-consensual encounters do not rise to the level of an arrest triggering a Miranda advisement. Thus, for example, if a police officer stops a driver for speeding and asks if the driver knew the speed limit, the answer given by the driver will not be excluded even thought the officer did not give the Miranda warning because the driver was not in custody at the time of the statement.

A person is deemed to be "in custody" for the purposes of the Miranda rule if a reasonable person in the suspect's position would have understood the situation to constitute a restraint on his freedom of movement to the degree which the law associates with formal arrest. Pertinent factors include: the actions of the officer; the time, place and purpose of the encounter; the words used by the officer; the officer's tone of voice and general demeanor; the officer's statements to others who were present during the encounter; the officer's response to any questions by the defendant or other persons present; and the defendant's verbal or non-verbal responses to any directions given to him by the officer.

The rule does not apply to statements that are volunteered. Thus, if a person simply volunteers information to an officer without being asked, those statements will not be barred by the rule even if the person was in custody and was never given the Miranda advisement.

The rule does not apply to statements obtained by persons who are not police agents. Thus a confession to a friend is admissible even if the friend did not give the Miranda warning, unless the friend has been recruited by the police and is acting as a police agent to obtain a confession.

The rule does not apply if the person who made the statement to the police testifies at trial and his or her trial testimony is inconsistent with the previous statement. In other words, the exclusionary rule does not give people a license to lie. Even if a statement was improperly obtained, the statement may be used to impeach any inconsistent testimony of the defendant at trial. This exception does not apply to statements that the court has deemed involuntary due to physical or other coercion.

If public safety is an immediate concern, for example when the police interrogate someone, the Miranda warning need not be given. The public safety exception was established in a case where the police received a report of a man with a pistol in a store. They went in, saw him, chased him, lost sight of him for a moment, caught him, cuffed him and found that he was wearing an empty pistol holster. A policeman asked where the gun was and the suspect told him. The court held that the public safety interest in quickly finding the gun outweighed the need to give a warning of rights.

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