What Counts as Interrogation

What Counts as Interrogation

Custody supplies the first trigger for the Miranda safeguards, and interrogation supplies the second, because the warnings are required only when a person in custody is also being interrogated. Miranda itself described custodial interrogation as "questioning initiated by law enforcement officers" after a person has been taken into custody or otherwise deprived of freedom of action in a significant way.¹ Read literally, that wording would confine the rule to express questions, so the Court had to decide whether anything short of a question counts, and it did so for the first time in Rhode Island v. Innis.² The answer is that interrogation reaches express questioning and its functional equivalent, meaning words or actions by the police that they should know are reasonably likely to elicit an incriminating response from the suspect.³

The reason for reaching past express questions follows from what the warnings are for. If only questions counted, officers could generate the same pressure through pointed remarks, appeals to conscience, or staged conversations in the suspect's hearing, and a suspect who had just been warned would face the compulsion the warnings were meant to counter. Treating the functional equivalent of a question as interrogation closes that gap. The limit on the other side comes from the same source: Miranda is enforced strictly, but only in situations where the concerns that powered the decision are present.⁴ Ordinary remarks that police have no reason to expect will draw out an admission therefore fall outside the rule, and the standard has to sort police pressure from mere talk.

Two features of the test make that sorting possible. The first is that it looks at effect. It asks what the police should have known about the likely result of their words, so the officers' private purpose does not control; a practice designed to draw out an admission will almost always also be one the police should know is likely to do so, which makes purpose strong evidence but not the standard.⁵ The second is that it takes the suspect's side of the exchange into account, because coercion is judged from the suspect's perspective.⁶ That is where known susceptibilities enter. What police should know depends on what they actually know about this suspect, so a remark aimed at a vulnerability the officers have identified is far more likely to be interrogation than a generalized comment that would mean nothing special to the person hearing it.⁷

The facts of Innis show the test at work. A taxicab driver who had just been robbed at gunpoint by a man with a sawed-off shotgun identified the suspect from a photo array, and a patrolman arrested the suspect and gave him the Miranda warnings.⁸ The parties agreed that the suspect had been fully informed of his rights, that he invoked the right to counsel by telling a captain he wished to consult a lawyer, and that he was in custody while being driven to the station.⁹ That invocation is why the interrogation question mattered, since once a person in custody asks for a lawyer, all interrogation must cease until counsel is present.¹⁰ During the drive one patrolman said to another that it would be too bad if a little girl picked up the missing gun and killed herself, and the other agreed that it was a safety concern and that the search should continue.¹¹ The suspect interrupted, asked the officers to turn around, and led them to the gun, explaining that he wanted it out of the way because of the children at a school in the area.¹²

The Court held that this exchange was not interrogation, even though the suspect responded by leading the police to the gun.¹³ The officers were talking to each other rather than to him, and nothing in their remarks was aimed at a known weakness of his, so the exchange sat on the generalized-conversation side of the line.¹⁴ The state supreme court had reached the opposite result, finding that the remarks amounted to subtle coercion equivalent to interrogation even though the officers may have been genuinely concerned about public safety and had not addressed the suspect personally.¹⁵ The reply that followed the remark did not change its character. A response is an effect, and the test asks what the police should have known about the likelihood of that effect when they spoke.

The dissent in Innis would have drawn the line more broadly. It argued that interrogation should include any statement that the average listener would normally understand as calling for a response, whether or not it ends in a question mark, because the warnings work only if suspect and police both treat them as a correct and binding statement of rights, and apparent attempts to draw out a suspect who has cut off questioning demean that right and restore the imbalance the warnings were meant to correct.¹⁶ On that view the focus moves from what the police should have known to how the words would strike a reasonable person in the suspect's position, and the dissent predicted that the narrower test would leave almost every statement without a question mark outside interrogation.¹⁷ The majority's test is the law, and the prediction overstates the gap: a statement with no question mark still counts when the police should know it is reasonably likely to draw an admission, as in the first variation above.

One more limit on the interrogation trigger appears in Illinois v. Perkins, which the previous section met in the custody setting. An undercover agent placed in a jail cell asked an inmate a series of pointed questions about a murder, and the dissent treated those questions as express questioning likely to evoke an incriminating response under Innis.¹⁸ The majority held that warnings are not required when the suspect does not know he is speaking to a law enforcement officer and gives a voluntary statement, reasoning that coercion is judged from the suspect's perspective and that a suspect who believes he is talking to a fellow inmate feels none of the pressure of a police-dominated atmosphere.¹⁹ The trigger therefore depends on who is asking as well as on what is asked, because the suspect has to know that the questioner is the police.

Two errors recur on exams. Students lose this issue when they reason backward from the suspect's incriminating reply, since the suspect in Innis answered at once and the remark still was not interrogation. The opposite error treats a missing question mark as the end of the analysis, forgetting that a pointed remark addressed to the suspect can be the functional equivalent of a question.