Abstract

This essay focuses on the limits of deception practiced before the suspect waives his or her rights under Miranda v. Arizona (1966). In Miranda, the Court stated: [A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the suspect did not voluntarily waive his privilege. The quotation appears to forbid any evidence of threats, tricks, or cajolery, which contributes to a waiver of the privilege, creating a per se exclusion. However, in Moran v. Burbine (1986), the Court shifts focus away from the nature of the police conduct to its effect on waiver, far from a per se rule. This essay demonstrates that substantial pre-warning softening up and some pre-waiver deception is permitted as a regular matter by the lower courts. While ploys and implicit deception, such as softening up the suspect by establishing rapport before the warning do undercut the effectiveness of Miranda by making the reading of rights just part of doing the paperwork, they are not subject to effective challenge. Because these ploys work in most cases, police do not need generally to use overt deception prior to the warnings. In extremely serious cases, such as homicides, police interest in lowering the risk that assertion will occur provides some incentive to push the envelope, moving them to more aggressive ploys, such as the talk about the evidence-then warn strategy. Invoking the Miranda right is difficult without a warning being given. This essay argues that while a per se rule that any evidence that waiver was tricked or cajoled is too broad, non-trivial overt lies told after the suspect is placed in custody but prior to Miranda warnings should categorically be prohibited.