April 2006, Volume 92, Issue 2
The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception
by Thomas Windom
92 Va. L. Rev. 327 (2006)
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The Miranda decision requires that police read suspects a set of warnings to ensure that the suspect knows his rights and only waives those rights “voluntarily” and “knowingly.” This Note proposes a “prior criminal experience” exception to Miranda, by which an incriminating statement made outside Miranda may be admissible at trial in certain circumstances. Under the new view of the law, just as today, law enforcement agents would be required to administer Miranda warnings to every suspect before custodial interrogation. However, should a law enforcement officer negligently fail to give the warnings, use of an incriminating statement against a suspect in court would not be barred absolutely. Rather, the statement might be admissible depending on the suspect’s knowledge of his rights, gained through prior criminal experience.
Essentially, the trial court would use a totality-of-circumstances test to determine if the suspect knew his rights at the time of his most recent statement to police. Compulsion still would be presumed in the absence of Miranda warnings, so the burden would fall on the government to show that the defendant had the constitutionally required knowledge. If the court finds the suspect had the requisite knowledge, a police officer’s negligence in not Mirandizing him is immaterial, and the court will allow the confession into evidence. If the court finds that the suspect does not have knowledge of his rights, the prong is not met, and the court will exclude the incriminating statement. The “prior criminal experience” exception only applies to the “knowledge” prong of Miranda; the voluntariness inquiry would not change. The exception ensures that courts do not allow the constitutionally required Miranda warnings to give an advantage to criminal suspects where none is needed.
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