What is custodial interrogation?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 28, 2021

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In the U.S. if an individual is in the custody of law enforcement officers while undergoing interrogation, this is usually known as a custodial interrogation. Custodial interrogation is a relatively simple concept, but the laws that accompany this term are complex. Consult an experienced criminal law attorney with any specific questions about custodial interrogations.

What is a custodial interrogation?

A custodial interrogation takes place if a person undergoes questioning by the police officers while they are in custody. The term custody usually refers to situations in which that the person has been placed under formal arrest or circumstances in which the person’s freedom of movement has been so restrained that the situation has risen to the level of a formal arrest.

The U.S. Supreme Court considers an interrogation to be a custodial interrogation if “a reasonable person would have felt he or she was not at liberty to terminate the interview and leave.” This reasonable person standard means that the interrogation is not characterized by the individual’s or the police officer’s personal feelings about whether or not the individual was in custody, rather, whether or not the average person would feel free to end the law enforcement interrogation process and leave the scene.

Before questioning an individual in custody, the officer must provide a Miranda warning to inform the person of his or her right to an attorney during the questioning process. The Miranda warning also informs individuals that anything they say can be used against them in a court of law. If you are guilty of a crime, or are not guilty of a crime but believe you may be in danger of making incriminating statements, you should be careful about what you do after an arrest.  Invoking your right to a lawyer once placed in custody is always a safe thing to do for your own protection.

Even in a non-custodial situation, it is best to have a lawyer present for even a routine interview if there is even a remote chance you could make an incriminatory statement or utter an incriminating response to direct questions that could make you seem like a suspect. Be aware that there is always an electronic recording of interrogations and these video recordings could be used against you in the courts if you become a defendant.

Whether or not a person is in custody, and whether they have or have not been informed of their Miranda rights is significant. If a law enforcement officer fails to read individuals their Miranda rights while taking them into custody, this can mean that any confessions or information obtained during the ensuing custodial interrogation cannot be used against the individual in court. However, this is not always the case. Law enforcement can find other means of using this evidence in court, especially if they possess evidence of the crime provided by another source.

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What are my rights during a custodial interrogation?

Anytime the police talk to you, you have rights, and if you are a suspect during custodial interrogation you would be aware of them. You have, at any time, a right to stop answering questions and demand an attorney. Most often, a confession or any other form of evidence obtained during a custodial interrogation cannot be used in court if law enforcement continues to question or coerce you after you have invoked your right to an attorney. It is important to know, however, that even after you waive your right to an attorney, you can invoke this right again at any time. If you do change your mind during the custodial interrogation and decide to invoke your right to an attorney, this request must be explicit, and not ambiguous. If it is ambiguous, the police may usually continue the interrogation without violating your Miranda rights.

How can you get legal help?

If you have questions about whether or not a police interrogation was custodial, and whether or not your rights were properly observed, consult an attorney familiar with criminal law. A custodial interrogation can be an intimidating experience, but you have rights available to you, and if you were denied those rights it is important that you consult with an attorney.

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