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You have the right to remain silent....unless you are free to leave

Guest post by Fabiana Alceste.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” These words have likely been burned into our collective consciousness by the ubiquitous and fantastic TV series Law & Order (in my case, Law & Order: SVU). These words are often spoken as Olivia Benson and Elliot Stabler handcuff the main suspect of the episode—the last words trail off as they walk offscreen and the show cuts to a commercial break. We know this scene, and we know the words…but why do these warnings exist and for whom are they intended?

Benson and Stabler are ready to make the arrest!
But first they need to inform the suspect of their
Miranda Rights
According to the U.S. Supreme Court, custodial interrogations are sometimes characterized by the use of police intimidation, trickery or other psychological tactics, a restriction of one’s personal liberty, and a feeling of compulsion to speak against one’s will1. Recognizing this, in 1966’s infamous warning’s namesake case Miranda v. Arizona, the Court held that suspects in custodial interrogation require certain protections to ensure that their statements are voluntary—namely, they must be informed of their right to remain silent and their right to a lawyer. Suspects have the option to use these rights and choose not to speak to the police or to waive the rights and answer questions without a lawyer present. Importantly, these rights and other legal protections, like the video-recording of the questioning in some jurisdictions, are only required when a suspect is in police custody.

Custody is most easily identified when it comes after formal arrest, like in Law & Order2. Anyone who is arrested is necessarily in the custody of the police and thus requires legal protections. But police often question individuals about crimes without arresting them—how, then, do we know if they are in custody? The court must determine whether, in the absence of arrest, there was a restriction of the subject’s freedom of movement that is on par with formal arrest3. (California v. Beheler 1983): first by evaluating the objective circumstances of the questioning, and then by asking whether a reasonable person in the suspect’s position would have felt free to leave.

Objective circumstances
Courts must weigh how the objective factors of the questioning contribute to a state of custody. For instance, courts may consider: whether police informed the suspect that he or she was free to leave or not under arrest; whether the suspect agreed to be questioned voluntarily or initiated contact with the police; whether police employed deceptive or coercive interrogation techniques during the questioning; and whether the atmosphere of the questioning was under police control4. Usually, the presence of the first two factors tend to indicate that the subject was free to leave the questioning (and thus did not require protections), whereas the last two suggest the suspect was in custody5 (United States v. Brown, 1993). 

To illustrate, imagine that a suspect arrives at the police station voluntarily, is told that he is not under arrest, is questioned for only 20 minutes, and is permitted to leave the station. A court would almost certainly label this interview as noncustodial3, 6, 7. Although custody is not determined by any single factor, but rather by the combination of all factors, courts almost always find that questioning is noncustodial when police advise suspects that they are free to leave3, 6 (although there is at least one case that found a suspect was not free to leave, despite the warning8).

“You are free to leave”
Even though you're not handcuffed, would you
feel like you could get up and walk out of an interrogation
with a detective standing between you and the door? 
In Howes v. Fields (2012)9, the Court described the case of Randall Fields, an inmate in a Michigan jail. Under suspicion of child abuse, Fields was interrogated one evening for 5 to 7 hours by armed sheriff’s deputies at the jail. The Court ruled that Fields was not in custody despite the length of the interrogation, the fact that it occurred after Fields usually went to sleep, the “very sharp tone” (p. 1193) of the interrogators, and the fact that he was an inmate. Fields did not require protections, according to the Court, because he was offered food and water, the door to the interrogation room was not locked, and most importantly, he was told that he was free to return to his jail cell whenever he desired.

With this ruling, the Court expressed its confidence that telling a suspect he or she is free to leave prevents feelings of restriction even in the face of incarceration—the ultimate form of police custody. Twenty-two years before Howes, the U.S. Supreme Court similarly held that an inmate being questioned by a police officer did not require Miranda warnings—not because the officer told the inmate he was free to leave, but because the inmate did not know his interrogator was a police officer.

The Perkins loophole
Illinois v. Perkins (1990)10 presents one important exception to the custody inquiry. Lloyd Perkins, an inmate in jail for aggravated battery, was in his cell when two new cellmates arrived: (1) Donald Charlton, an inmate from another correctional facility, and (2) John Parisi, an undercover police officer. Unbeknownst to Perkins, Charlton and Parisi were working together to question Perkins about an open murder case. The two undercover operatives engaged Perkins in a plan to break out of the prison. If there was a shoot-out between prisoners and correctional officers, Parisi needed to know if Perkins was willing to commit murder during the break-out, and thus asked Perkins if he had ever killed before. Perkins confirmed that he had and provided specific details of the murder after prompting from both Parisi and Charlton. Perkins was subsequently arrested for murder on the basis of his confession.

At trial, Perkins’ statements were excluded from evidence because he was in custodial interrogation without receiving or waiving Miranda. The U.S. Supreme Court reversed and allowed Perkins’ confession into evidence. The Court explained that Miranda warnings are only required because of the coercion that a suspect might feel in a police-dominated setting. Although Perkins was technically in custody as an inmate, the Court argued that he did not feel coerced because he did not know his questioners were police agents.

Thus, Perkins limits Miranda to situations in which the suspect knows the interrogator is a police officer. Opponents of this decision, most notably Justice Thurgood Marshall in his dissent, argue that in addition to being physically constrained by their incarceration, inmates may feel psychologically restricted because prison is always a police-dominated environment. Thus, inmates may have psychological vulnerabilities that make them likely to boast about their (real or invented) violent tendencies as a form of protection against prison violence, and in that way feel pressured to make statements like Perkins’s. The Court’s decision in Perkins therefore denies safeguards to one of the more vulnerable populations in need of the protection for which Miranda was created.

Interestingly, the Perkins Court specified that when determining whether the questioning was coercive, courts must consider the perspective of the suspect. Regarding the more general perception of freedom to leave, courts must use a different standard. The objective circumstances described above are not to be considered from the perspective of the suspect or the police present during the interrogation. Instead, the courts ask how a reasonable person would have interpreted those factors with regards to the suspect’s freedom to leave.

Reasonable person standard
Instead of asking police to weigh how each individual’s traits and idiosyncrasies might affect their perceptions of freedom, the courts ask whether a reasonable person would have felt restricted or free11. In other words, would the average person have felt free to get up and leave during the questioning? The assumption is that this reasonable person standard is more objective than the alternative12. Contrary to the law’s assumptions, psychological research shows that two “reasonable” people can perceive the same situation differently, depending on their perspective.

Testing freedom to leave in the lab:
People who watched a recording of the interrogation said
the suspect was more free to leave than the suspect rated
their own freedom to leave in the situation
Perceptions of custody: Suspect-observer differences
When someone is in a bad situation, they report feeling less responsible and having less freedom than when they are simply watching a bad situation. In contrast, those watching from the outside report that the person in the situation had more responsibility and freedom13. Timothy and I, along with Saul Kassin, conducted two experimental studies to apply this difference in perceptions of freedom to the custody test14. First, we wanted to know whether the objective circumstances of a questioning session influence subjects’ perceptions of custody. Second, we examined whether telling an interview subject “you are free to leave” makes the subject feel freer than those who are not told.

In these studies, college student participants were questioned by campus security about a staged theft that they believed to be real. The innocent participants were either interviewed as witnesses to the crime or interrogated as suspects. The interviews and interrogations questioning types consisted of objective factors that would be considered noncustodial and custodial—and thus should elicit greater feelings of freedom vs. restriction—respectively. Interviews were brief, non-accusatory, information-gathering sessions, conducted with the door open and with the experimenter in the room. Interrogations were longer, more accusatory, and were conducted with the door closed and the participant alone in the room with the security guard. All questioning sessions were video-recorded. At the end of each session, participants reported how free they felt to leave during the questioning.

Regardless of questioning type, most participants did not feel free to leave. Contrary to the law’s assumptions, participants did not feel freer in interviews vs. interrogations—even when they were not accused and had an ally in the room, participants felt a restriction on par with those in interrogations.

Next, we examined whether telling someone they are free to leave during an interview makes them feel more free to leave. In a similar fake theft scenario, we randomly assigned some interview participants but not others to be informed of their freedom. Participants who received the advisement knew objectively that they were free to leave, but, contrary to the courts’ assumptions, did not feel freer compared to those who did not receive the advisement.

In both studies, we compared the participants’ perceptions of freedom to those of neutral observers on the Internet. Although the laboratory participants felt restricted, regardless of questioning type and advisement condition, online observers did see a difference. Observers who watched an interview believed that the subject was significantly freer to leave than those who watched an interrogation; those who watched an interview with the advisement similarly believed the subject was freer to leave than those with no advisement.

The difference in perceptions between actors and observers closely mirrors the results of previous psychological research12, showing that a difference in perspective can influence attributions of freedom. The difference between participants and observers also casts doubt on the objectivity of the reasonable person standard by showing that two average, reasonable people can draw different conclusions about custody based on their perspective.

In addition to reporting their perceptions of the participant’s freedom, observers were asked to put themselves in the participant’s position and report whether they would feel free to leave in that situation. Interestingly, when observers took the perspective of the participant, their perceptions of freedom dropped significantly and closely matched the perceptions of the participants themselves.

Taken together, these two studies contradict the courts’ assumptions about: (1) how objective circumstances (especially the free-to-leave advisement) influence perceptions of custody and (2) the objectivity of the reasonable person standard. These results raise the concern that freedom will be overattributed to suspects who in fact feel restricted, and therefore they will not receive the legal protections needed in custodial interrogation.

One potential remedy also rises out of these results: an instruction to observers to consider themselves in the suspect’s position while determining custody. Indeed, Supreme Court Justices have recommended perspective-taking in this manner (“…I have no doubt that the state trier of fact is best situated to put himself in the suspect’s shoes, and consequently is in a better position to determine what it would have been like for a reasonable man to be in the suspect’s shoes”, p. 119)15. Custodial interrogation must be more closely studied by psycho-legal scholars to prevent the curtailing of the only two legal safeguards provided against self-incrimination—Miranda and video-recording.

1. Miranda v. Arizona, 384 US 436 (Supreme Court 1966).
2. Orozco v. Texas, 394 US 324 (Supreme Court 1969).
3. California v. Beheler, 463 US 1121 (Supreme Court July 6, 1983).
4. US v. Griffin, 922 F. 2d 1343 (Court of Appeals, 8th Circuit 1990).
5. US v. Brown, 990 F.2d 397 (8th Ci. 1993).
6. Oregon v. Mathiason, 429 US 492 (Supreme Court January 25, 1977).
7. Berkemer v. McCarty, 468 US 420 (Supreme Court July 2, 1984).
8. United States v. Lee, 699 F.2d 466 (9th Cir. 1982).
9. Howes v. Fields, 132 S. Ct. 1181 (Supreme Court 2012).
10. Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990).
11. Stansbury v. California, 511 US 318 (Supreme Court April 26, 1994).
12. Yarborough v. Alvarado, 541 US 652 (Supreme Court 2004).
13. Harvey, J. H., Harris, B., & Barnes, R. D. (1975). Actor-observer differences in the perceptions of responsibility and freedom. Journal of Personality and Social Psychology, 32(1), 22–28.
14. Alceste, F., Luke, T. J. & Kassin, S. M. (in press). Holding yourself captive: Perceptions of custody during interviews and interrogations. Journal of Applied Research in Memory and Cognition.
15. Thompson v. Keohane, 516 US 99 (Supreme Court 1995).


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