May 2012 Vol. 110 No. 7 THE REVIEW

Empty Promises: Miranda Warnings in Noncustodial Interrogations

Aurora Maoz

"You have the right to remain silent; anything you say can 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 to you at the state's expense." In 2010, the Supreme Court declined an opportunity to resolve the question of what courts should do when officers administer Miranda warnings in a situation where a suspect is not already in custody—in other words, when officers are not constitutionally required to give or honor these warnings. While most courts have found a superfluous warning to be harmless, social science research suggests that this conclusion is misguided. This Note proposes that courts use a rebuttable presumption that a suspect is in custody once the warnings are read. This solution serves two functions. First, it prevents officers from using the promise of the warnings, coupled with a failure to honor the rights promised, as a method of coercing suspects into speaking. Second, it honors the reality that the vast majority of people believe that they are under arrest and therefore in custody once officers administer the Miranda warnings.

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