Statements of the accused: voluntariness and Miranda

At 02:29:40 on Crescent Street, Officer Okeke told Shane Brennan that he was being detained in connection with a break-in on Bayview Avenue. Ten seconds later, before patting him down, Okeke asked, 'Where are you coming from tonight?' Brennan answered, 'Just riding home from my girlfriend's place on Elm.' It was the only thing Brennan said about the night that ever mattered in court, and the two countries' versions of the trial treated it in completely different ways. In Ohio, the judge admitted it, and Kwan used it, together with the girlfriend's evidence, to show that Brennan's explanation did not hold up.

Desjardins tells the students that a statement by the accused is often the most powerful evidence in a case, and for that reason it is the most closely regulated. A confession is enormously persuasive to a jury, and the history of wrongful convictions shows that people sometimes confess to crimes they did not commit. The law therefore requires the prosecution to prove that a statement was obtained fairly before the trier of fact may hear it. This lesson covers the rules that govern that proof and the hearing where it happens.

Voluntariness under due process

Under the due process clause of the Fourteenth Amendment, a confession is inadmissible if it was involuntary, meaning that the accused's will was overborne by coercive police conduct, judged on the totality of the circumstances. In Colorado v. Connelly (1986), the United States Supreme Court held that coercive police activity is a necessary element; a statement is not involuntary simply because the accused had a mental illness. Relevant factors include the length and conditions of questioning, threats, promises, physical deprivation, and the person's age, experience and mental state. In Jackson v. Denno (1964), the Court held that the accused is entitled to a hearing, separate from the jury, at which the judge decides voluntariness. The prosecution must prove voluntariness by a preponderance of the evidence, as the Court held in Lego v. Twomey (1972), and Ohio follows that standard.

Miranda and custodial interrogation

In Miranda v. Arizona (1966), the United States Supreme Court held that before custodial interrogation, police must warn a suspect of the right to remain silent, that anything said can be used against them, the right to a lawyer, and the right to an appointed lawyer if they cannot afford one. Miranda applies only when there is both custody and interrogation. Custody means a formal arrest or a restraint on freedom of movement to the degree associated with formal arrest. In Berkemer v. McCarty (1984), the Court held that a person temporarily detained in an ordinary traffic stop or a similar brief investigative stop is not in custody for Miranda purposes, so officers may ask a moderate number of questions to confirm or dispel their suspicions without warnings. Once the stop becomes the functional equivalent of an arrest, Miranda applies. A statement taken in violation of Miranda cannot be used in the prosecution's main case, though, as the Court held in Harris v. New York (1971), a voluntary statement can be used to impeach the accused if he testifies inconsistently.

What happened on Crescent Street

The in-car video showed the timeline precisely. Okeke pulled up at 02:29:05, got out, and told Brennan to stop and get off the bike. At 02:29:40 he said, 'You're being detained, I'm investigating a break-in on Bayview.' At 02:29:50 he asked where Brennan was coming from. At 02:30:10 he began the pat-down. At 02:31:15 he opened the backpack. At 02:32:00 he told Brennan he was under arrest for break and enter. He did not tell Brennan about his right to a lawyer, or read him any warning, until 02:44:30, in the cruiser, when he read from his card.

The judge applied Berkemer. Brennan had been stopped on a public street by a single officer for a few minutes; he had not been handcuffed, told he was under arrest or moved anywhere; and Okeke asked one general question. That was a brief investigative stop, not custody, so Miranda warnings were not required. There were no threats or promises, so the statement was voluntary. It was admitted. The answer that came after the arrest, when Okeke asked nothing further and Brennan said nothing, raised no issue. At 02:44:30 Okeke read the Miranda warnings, and Brennan said, 'I'm not saying anything without a lawyer.' Okeke asked no more questions. Kwan reminded the class that under Doyle v. Ohio (1976), the prosecution may not use a suspect's silence after Miranda warnings against him, and he never mentioned it at trial.

# Time from the start of detention to each event on Crescent Street (from the in-car video)
from datetime import datetime
t = lambda s: datetime(2026, 3, 14, *map(int, s.split(":")))
detained = t("02:29:40")
events = [
    ("question: where are you coming from?", "02:29:50"),
    ("pat-down begins", "02:30:10"),
    ("backpack opened", "02:31:15"),
    ("arrest announced", "02:32:00"),
    ("rights to counsel / warnings read", "02:44:30"),
]
for name, when in events:
    secs = int((t(when) - detained).total_seconds())
    print(f"{secs:5d} s after detention  {name}")
gap = (t("02:44:30") - detained).total_seconds() / 60
print("minutes between detention and rights to counsel:", round(gap, 1))

   10 s after detention  question: where are you coming from?
   30 s after detention  pat-down begins
   95 s after detention  backpack opened
  140 s after detention  arrest announced
  890 s after detention  rights to counsel / warnings read
minutes between detention and rights to counsel: 14.8

The gap of almost fifteen minutes between detention and the right to counsel did not cause any further statement, because Okeke asked nothing more after the arrest. But the question at ten seconds produced the only statement there was. Desjardins tells the class that most of the Charter problems he saw as a supervisor came from that kind of habit: an officer, focused on the investigation, asks the natural question first and thinks about rights second. He suggests a simple discipline: once a stop starts to look like an arrest, warnings first, then questions.

Who is a person in authority

The rules above apply to statements obtained by the state. Statements an accused makes to ordinary people, such as a friend, a family member or another inmate, are not subject to the voluntariness rule or to the right to counsel, though they may still be excluded if they are unreliable or obtained by abusive state conduct. In the United States, an undercover officer placed in a cell with a suspect does not have to give Miranda warnings, as the Supreme Court held in Illinois v. Perkins (1990), because the coercive atmosphere Miranda guards against is absent when the suspect does not know he is talking to police. However, once a suspect has been charged and has a lawyer, deliberately eliciting statements through an informant violates the Sixth Amendment right to counsel, under Massiah v. United States (1964).

Statements, recordings and the voir dire record

In any case where a statement may be used, the prosecution must be able to account for all the contact between police and the accused leading up to it. Every officer who dealt with the accused may have to testify about what was said and done, because an inducement or threat by one officer can taint a statement given to another. Recording solves many of these problems. A complete recording, from the first contact through the end of questioning, shows the court exactly what happened and protects officers from false allegations. Ohio Revised Code 2933.81 creates a presumption that a statement made during a custodial interrogation in a place of detention is voluntary if it is electronically recorded, in cases involving certain homicides and serious sexual offenses, and many Ohio agencies record all custodial interviews. The in-car video in the Bayview case was the best evidence the court had of what happened on Crescent Street, and both sides relied on it.

Silence and the accused at trial

The accused has a right to remain silent before trial and a right not to testify at trial. The Fifth Amendment forbids the prosecution from commenting on the accused's failure to testify, as the Supreme Court held in Griffin v. California (1965), and under Doyle v. Ohio (1976) the prosecution may not use the accused's silence after Miranda warnings to impeach him. Officers testifying should never volunteer that the accused refused to give a statement or asked for a lawyer, unless the prosecutor has told them it is relevant and admissible for a specific purpose. Doing so can cause a mistrial.

Recording what the accused says

Whatever the rules allow, a statement is only as useful as the record of it. Officers should write down the accused's exact words, in quotation marks, as soon as possible, together with the question that prompted them and the time. A paraphrase such as 'suspect denied involvement' is almost useless in court, because the trier of fact cannot judge what was actually said, and the defense can suggest the officer's summary was colored by what he believed. Officers should read the Miranda warnings from a card, note the time, and record the person's exact response, including any request for a lawyer or statement that they do not wish to talk, which ends questioning under Edwards v. Arizona (1981) and Michigan v. Mosley (1975). Unsolicited statements, which the accused volunteers without being asked anything, should be recorded just as carefully, with a note that they were not in response to a question. They are usually admissible if voluntary, but the officer will be asked whether anything was said to prompt them.

Okeke's notes recorded Brennan's answer accurately, in quotation marks, with the question that prompted it. That was the one thing about the roadside the defense never challenged. Desjardins tells the class that the accuracy of that note is a good example of how careful note-taking protects everyone: if the statement had been important to the result, the court would have had the exact words, and it would have had them whichever way they cut.

False explanations

In Ohio, Kayla Moss, Brennan's girlfriend, testified that he left her apartment on Elm Street at about 12:30 a.m., two hours before he was stopped, and that he did not say where he was going. Kwan argued that Brennan's statement that he was 'just riding home' from her place was a false explanation that showed consciousness of guilt. Marchetti argued it was not false at all, only incomplete, since he might have been riding around before heading home. Judge Abernathy said in her reasons that she gave the statement little weight either way, because it was a short answer to a general question, and that her verdict rested on the fingerprint and the other identity evidence. Desjardins says that is a common result. Statements that seem important at the roadside often turn out to matter less in court than the physical evidence.