Bar Journal - September 1, 2000
PRISONERS AND MIRANDA — PROBLEM SOLVED?
By: Deanne M. DiCenzo
In 1999, the New Hampshire Supreme Court joined the long list of state and
federal courts that have addressed a unique problem which emerged from the
United States Supreme Court’s 1966 Miranda v. Arizona decision – is a prisoner
always “in custody” for purposes of Miranda by virtue of the fact that he is
never free to leave?
Two years after this landmark decision, the Supreme Court was confronted with
applying Miranda to the prison setting. In United States v. Mathis, the
Court granted certiorari to decide whether a prisoner was entitled to Miranda
warnings before interrogation on an unrelated offense.1 Relying
heavily on the language in Miranda, the Court held that Miranda warnings are
required whenever an individual is interrogated while in custody or otherwise
deprived of his freedom, regardless of the reason why the person is in
Following Mathis, state and federal courts all across the country have been
going to great lengths to limit the scope of this decision. These courts
have interpreted Mathis narrowly and concluded that the decision does not stand
for the proposition that prisoners are in custody for Miranda purposes at all
times they are incarcerated.3 Instead, these courts have said that
Mathis stands for the proposition that if a prisoner is “in custody” for Miranda
purposes and subjected to interrogation, he is entitled to Miranda
warnings. As a result, these courts have clearly stated that a prisoner is
not always “in custody” for Miranda purposes, and they have developed tests to
answer the question of when exactly a prisoner is “in custody.” In two
1999 decisions, State v. Ford and State v. Dorval, the New Hampshire Supreme
Court addressed this question and followed the majority of states and circuits
into the land of additional restraint.
I. STATE OF NEW HAMPSHIRE V. SCOTT
A. Background and Procedural
On November 7, 1995, Scott Ford was arrested and incarcerated in Rutland,
Vermont for passing a bad check.4 Ford contacted an FBI special
agent, who met with him on November 8 at the Marble Valley Correctional Facility
in Rutland where Ford was incarcerated.5 After Ford waived his
Miranda rights in writing, he told the agent that he had information about an
armed robbery in Hampton Beach, New Hampshire.6 Ford told the agent
that in August 1995 he had been asked to rob the Coastal Gem jewelry store in
Hampton Beach as part of an insurance fraud.7
After their meeting, the FBI agent contacted the Hampton police
department. He told the Hampton police what Ford had told
him.8 At the time, the Hampton police had arrested and charged
another person in connection with the robbery.9 Ford was not considered a
suspect in that crime.10
Later, two Hampton police officers met with Ford in a lunch and locker room
at the Marble Valley Correctional Facility on November 10.11 The two
officers explained to Ford what they had learned from the FBI
agent.12 Although Ford initially denied having spoken with the FBI
agent, he eventually agreed to speak with the officers.13 The
officers told Ford that they suspected the store owner and had arrested another
suspect.14 They also told Ford that they did not believe he was
involved and were seeking information from him.15 Ford spoke
generally about the robbery and referred to the gunman involved in the crime in
the third person.16
As the interview went on, however, Ford began referring to himself as the
gunman.17 At this point the officers attempted to administer Miranda
warnings to Ford, who initially refused to be read his rights and continued
talking. Ford responded, “you got me, I did it.”18 He asked
the officers to be quiet so he could tell them something.19 He then
gave a lengthy description of how the robbery occurred.20 After he
finished his description, Ford permitted the officers to read him his Miranda
rights, which he waived in writing.21 He continued to provide
additional information about the robbery and theft after the waiver.22
Following the November 10 and a subsequent November 15 interviews, Ford was
charged with one count of robbery armed with a deadly weapon and two counts of
theft by unauthorized taking.23 Prior to trial, Ford moved to suppress his
November 10 and November 15 statements. In support of his motion to
suppress the statements, Ford argued that the statements were involuntary and
given in violation of his Miranda rights. The motion was denied, and Ford
was convicted on all counts at trial.
B. Appellate Arguments and
On appeal Ford sought to suppress the November 10 confession on the grounds
that it was the product of a custodial interrogation made without prior Miranda
warnings.24 In support, Ford said that the November 10 interview
took place in a locked room at a state correctional facility and that the
officers should have foreseen that their initial questioning would elicit an
incriminating response.25 The officers, Ford argued, had his
admissions to the FBI agent and used those admissions to confront Ford when he
initially refused to talk to them.26 Ford argued that given these
facts, the officers must have considered Ford a suspect or at least should have
known he might give additional incriminating statements in response to their
The State, however, contended that Ford was not “in custody,” and as such
Miranda warnings were not required.27 The fact that Ford was in
prison, according to the State, does not make him automatically “in custody” for
Miranda purposes. Instead, the State relied on decisions from other states
and federal circuits, proposing that an incarcerated person is “in custody” for
Miranda purposes only if the prisoner’s liberty is further limited beyond the
usual conditions of confinement.28 In support, the State pointed out
that the officers expressly advised Ford that he was not a suspect and that his
participation was voluntary.29 Also, the interview took place in a
locker and lunch area with no guards present. Ford was not handcuffed and was
able to phone his wife during the meeting.30 The State also pointed
out that Ford controlled the tenor of the meetings and did not ask to
The supreme court rejected Ford’s argument that because he was a prisoner he
was in custody for purposes of Miranda.32 In so deciding, the court
followed a variety of federal circuit courts that have held that when a
defendant is already incarcerated at the time of interrogation, the traditional
custody analysis is inappropriate. The court adopted a Ninth Circuit
position and held that when a person is incarcerated for an offense unrelated to
the subject of his interrogation, custody for Miranda purposes occurs when there
are additional limitations imposed on the prisoner.33
In order to determine whether Ford was further restricted in association with
the interrogation, the court relied on a number of facts. First, the
November 10 interview took place in an uncoercive area of the
prison.34 Also, the only people who were present were Ford and the
two Hampton police officers.35 Based on the facts, the court found
that Ford was not pressured and was able to terminate the interview, an option,
the court stated, that Ford exercised upon first meeting the
officers.36 Additionally, Ford was able to control the topics and
initiated discussion of potential agreements with the State.
Based on the facts surrounding the November 10 interview, the court found
that Ford was not in custody for decision denying the motion to suppress. Miranda purposes and upheld the lower court’s
Ford’s conviction was
II. STATE OF NEW HAMPSHIRE V. CHARLES DORVAL, JR.
A. Background and Procedural History
While in jail for a probation violation, Charles Dorval, Jr. was interviewed
by two sergeants of the Hudson police department on February 16,
1996.38 The officers knew that Dorval was to be released the next
day and wanted to interview him about the murders of two elderly Hudson, New
Hampshire sisters.39 The purpose of the interview, according to the
officers, was to give Dorval information regarding the investigation of the
murders and hopefully get information from Dorval about his involvement.40
The officers met with Dorval in the prison library.41 Dorval was
brought to the library by a prison guard who waited outside the room during the
meeting.42 Dorval was not given Miranda warnings at any point during
the interview.43 During the three hour meeting, Dorval made no
incriminating statements.44 When, at the end of the meeting, the
officers began asking Dorval some questions, he asserted his right to counsel by
stating that he wanted to speak with his lawyer.45 The meeting was
stopped and Dorval was returned to his cell.46
When he returned to his cell, Dorval confessed to his cellmate that he had
been involved in one of the murders.47 The cellmate, who was a
police informant placed in Doral’s cell to illicit incriminating information
from him, was wearing a body wire recording the entire conversation.48
Dorval was tried on two counts of first-degree murder, causing the death of
another within the course of burglary and purposely causing the death of another
with premeditation.49 Prior to the trial, Dorval moved to suppress
the statements he made to the informant on the grounds that the meeting with the
two officers was a custodial interrogation.50 As a result, Dorval
argued, after he had asserted his right to counsel the police could not later
question him through the informant. The trial court denied his
motion. Dorval was later convicted only of the murder in the course of
burglary charge and was sentenced to life in prison without parole.51
B. Appellate Arguments and Holding
Dorval appealed the denial of the motion to suppress the statements given to
the informant. He argued that as an inmate, he was in custody and the
“added imposition” test employed by the trial court was not the proper legal
standard to determine custody.52 Because he was in custody, Dorval
argued, his invocation of his right to counsel was violated by the police
informant.53 As a result, Dorval asserted that his statements should
have been suppressed. Dorval relied on the facts surrounding the
interview. He noted that he was incarcerated.54 He was brought
to the library for the meeting by a correctional officer who waited outside the
room during the entire meeting.55 Dorval further argued that no
Miranda warnings were ever given.56
The State, on the other hand, argued that Dorval was not in custody merely
because he was incarcerated.57 Incarceration alone, argued the
State, does not create the coercive police dominated atmosphere for which
Miranda was intended.58 As in Ford, the State again argued for the
adoption of the “additional restraint” test when determining whether a prisoner
is in custody for the purposes of Miranda.59
The New Hampshire Supreme Court in Dorval, again reasserting its holding in
Ford, stated that in order to determine if a prisoner is “in custody” for
purposes of Miranda when being question for an offense unrelated to the subject
of his incarceration, the additional restraint test applies. 60
The court then examined the facts surrounding the interview and found that no
additional restraint was placed on Dorval.61 The interview was short and
amicable.62 Dorval was not restrained or in handcuffs.63
He was told he was free to leave at any time.64 Additionally, the
meeting was conducted in the library, not a jail cell or interrogation
On those facts, the court found that no additional restraint was put on
Dorval, and as such he was not “in custody” for purposes of
Miranda.66 The lower court decision was affirmed.
In 1968 the United States Supreme Court, in United States v. Mathis, said
that the requirements of Miranda warnings prior to custodial interrogation are
not limited to instances where the accused is in custody in connection with the
very case under investigation.67 Where the accused is incarcerated
for separate, unrelated offenses, Miranda warnings are still required for
The New Hampshire Supreme Court is not the first court to adopt the
additional restraint test to determine whether a prisoner is “in custody” for
Miranda purposes. In fact, since the Mathis decision, the majority of the
federal circuits and a large number of state courts have distanced themselves
from Mathis and resolved this question in a similar manner.
A. United States v. Mathis
Mathis was incarcerated in a Florida state prison and was interrogated by
Internal Revenue Service agents about tax return fraud – a federal offense that
was unrelated to his incarceration.69 The IRS agents did not give
Mathis Miranda warnings prior to speaking with him but obtained incriminating
statements from him.70 Mathis was convicted of two counts of
knowingly filing false claims against the government, based, in part, on the
incriminating statements he gave the agents.71
On appeal, Mathis argued that because the agents elicited the statements from
him without first giving him Miranda warnings, they should not have been used as
evidence against him at trial.72 The government contended that,
because the questions were asked as part of routine tax investigation where no
criminal proceeding might even be brought, no Miranda warnings were
required.73 Additionally, they argued that because Mathis had not
been put in jail by the agents questioning him but was there for a separate
offense, no Miranda warnings were required.74
The Supreme Court, relying heavily on its decision in Miranda v. Arizona,
rejected both of the government’s arguments. The Court stated that the
arguments that the government raised did not justify departure from the
“well-considered conclusions of Miranda with reference to warnings to be given
to a person held in custody.”75 First, the Court said that routine
tax investigations frequently lead to criminal prosecutions.76
Second, the Court rejected the claim that Miranda warnings only apply when a
prisoner is “in custody” in connection with the crime under
investigation.77 Accepting such a view, according to the Court,
would go against the entire purpose of the Miranda decision.78
Whenever a person is in custody or otherwise deprived of his freedom by
authorities in any significant way, he is entitled to Miranda warnings before
interrogation regardless of the reason he is in custody.79
B. The Lower Courts Respond
Since the Mathis decision in 1968, at least eight of the twelve federal
circuit courts and at least eighteen state courts have expressly limited the
scope of the decision.80 These courts have concluded that Mathis
does not stand for the proposition that every moment of incarceration is Miranda
custody.81 Instead, the lower courts have found that Mathis holds
only that when a defendant is imprisoned on an unrelated matter the necessity
for Miranda warnings is not removed.82
The courts recognize that the traditional “free to leave” test to determine
custody for Miranda does not work when the suspect is incarcerated. By
their very nature, prisoners are never “free to leave.”83 According
to the lower courts, adopting a per se custody rule for prisoners would be
illogical with Miranda, disrupt prison administration and provide greater
protection to prisoners than those who are not imprisoned.84
As a result, the lower courts have set out to define a test to determine when
a prisoner is “in custody” for Miranda purposes. The test that emerged is
called the additional restraint test and was adopted in Ford and Dorval by the
New Hampshire Supreme Court.85
C. The Additional Restraint Test
An act which changes the surroundings of the prisoner, resulting in added
impositions on his freedom of movement, is an additional
restraint.86 Articulated in a seminal Ninth Circuit case on this
issue, the test uses the reasonable person standard and the four-factor test
employed in the traditional “free to leave” test.87
The factors, which are assessed on a totality of the circumstances basis,
are: 1) the language used to summon the individual; 2) the physical surroundings
of the interrogation; 3) the extent to which he is confronted with evidence of
his guilt; and 4) the additional pressure exerted to detain him.88
If, based on these factors a reasonable person would believe that there had been
restriction of his freedom over and above his normal life as a prisoner, then
additional restraint will be found and Miranda warnings are required.89
1. Cervantes v. Walker - The Dawn of Additional
The Ninth Circuit was not the first court to interpret the Supreme Court’s
decision in Mathis. However, that court’s 1978 decision in Cervantes v.
Walker articulated the standard that other states and districts had been
struggling to articulate since Mathis.
Cervantes, an inmate in a county jail, was being moved from one jail cell to
another as a result of his recent fight with another inmate.90 A
sheriff’s deputy instructed Cervantes to get his belongings from his old cell
and then brought Cervantes to the jail library so he could speak with a
commander before the move.91 Cervantes left his belongings outside
the library on a table during the meeting with the commander.92
Pursuant to a standard jail procedure a sheriff’s deputy searched Cervantes’
belongings, finding a small matchbox containing a green odorless
substance.93 The deputy brought the matchbox into the library and
asked Cervantes what the substance was inside.94 Cervantes replied
“that’s grass man,” and was subsequently placed under arrest.95
Cervantes appealed his conviction of possession of narcotics in a county jail
arguing that, under Mathis, any interrogation while in prison amounts to
custodial interrogation requiring Miranda warnings.96 The Ninth
Circuit rejected this argument on both policy and principle basis.
As a matter of policy, the Ninth Circuit found that interpreting Mathis as
Cervantes suggested would create a per se rule requiring Miranda warnings for
any questioning in prison.97 Relying on the language in Miranda, the
court argued that such a finding would totally disrupt prison administration, an
end which Miranda did not intend.98 Additionally, interpreting
Mathis so narrowly would allow a prisoner greater protection under Miranda than
non-imprisoned people.99 This, argued the court, would be both
inconsistent with the Miranda holding and illogical.100
As a matter of principle, the Ninth Circuit found that the traditional “free
to leave” test for determining custody under Miranda is not a useful tool when
prison questioning is at issue.101 The court looked first to its
prior decisions where it had articulated a standard for determining custody in
“normal” circumstances. This standard – the language used to summon the
suspect, the physical surroundings of the interrogation, the extent the suspect
is confronted with his own guilt, and the pressure exerted to detain him – had
been used by the court to determine whether a suspect felt free to leave under
the traditional determination of custody.102 The court determined,
however, that this test, coupled with the traditional free to leave analysis
would lead to the conclusion that all prison questioning is custodial because a
reasonable prisoner would always believe he was not free to leave.103
The court then turned to the language used by the Supreme Court in Oregon v.
Mathison. In that case, the Supreme Court held that there had been no
custody for purposes of Miranda where the suspect went voluntarily to the police
station, confessed to a crime when confronted with false evidence, and then left
the station after questioning.104 The Court held that the suspect
was not in custody because there was no indication that the suspect’s freedom to
leave was restricted in any way.105
Using the concept of “restriction,” the Ninth Circuit explained, is
significant when referring to the prison setting. Restriction necessarily
implies a change in the prisoner’s surroundings resulting in an added imposition
on his freedom of movement.106 The court then defined a new standard
by integrating the concept of restriction into the objective, reasonable person
standard that is used to determine traditional notions of custody.
Pursuant to this new standard, if a reasonable person would believe there had
been a restriction of his freedom over and above the expectations of a prisoner
in an incarcerated setting based on: 1) the language used to summon the
prisoner; 2) the physical surroundings of the interrogation; 3) the extent to
which the prisoner is confronted with evidence of his guilt; and 4) the
additional pressure exerted to detain him, then Miranda warnings are
D. Additional Restraint – Is it Really a New Standard or the
Mathis Dissent in Disguise?
Technically, the lower state and district courts are correct – Mathis does
not explicitly stand for the premise that any time a person is incarcerated he
is in custody for Miranda purposes. In Mathis, whether the defendant was
in custody was not even an issue.108 In fact, it was assumed by the
majority and by the government that he was.109 What the Mathis
decision does make clear, however, is that when an individual is in custody he
is entitled to Miranda warnings before interrogation regardless of the reason
why he is in custody.110 In other words, there need not be a subject
matter link between the custody and the interrogation in order to trigger
Miranda protections. The majority, in their opinion written by Justice
Black, did not discuss how, where and when the interrogation about the new
charges took place.111 Not only did the majority not discuss these
issues, they did not seem to care. The government did not raise the issue,
arguing only that while Mathis was a prisoner and as such in custody, the
custody was unrelated to the subject of the interrogation.112 The
majority justices simply began with the assumption that as a prisoner, Mathis
was in custody.
On the other hand, while the majority did not consider the custody issue, the
three justice dissent did.113 Justice White, who also dissented from
the Miranda decision, wrote the Mathis dissent, raising three
issues.114 The first reasserted his disagreement with the Miranda
decision.115 The second issue questioned whether Miranda extended to
any routine tax investigations which may or may not lead to criminal
investigations.116 Third, Justice White raised the issue of whether
Mathis was really in custody by virtue of his status as a prisoner.117
1. White’s Dissent – The True Dawn of Additional
Assuming for the moment that he agreed with the Miranda decision, Justice
White could not agree that under Miranda, Mathis was sufficiently “in custody”
to trigger its protections.118 In his dissent, Justice White writes
that simply being incarcerated does not make a person in custody because Miranda
did not rest on the mere fact of physical restriction, but on the conclusion
that coercion usually flows from a certain type of custody.119 In a
manner similar to the application of the additional restraint test, Justice
White’s analysis of whether Mathis was in custody focused on the manner and
place where the interrogation took place.120 He noted that although
Mathis was confined, he was in familiar surroundings at the time of the
interrogation.121 Based on a policy similar to that underlying
Cervantes and other district court decisions that have responded to Mathis over
the last 30 years, Justice White’s dissent implies that by assuming Mathis
automatically in custody, he has more protection than non-imprisoned
people.122 In support, Justice White stated that, “Neither the
record nor the Court suggests reasons why [Mathis] was ‘coerced’ into answering
[the agents’] questions any more than is the citizen interviewed at home by a
Although the majority opinion in Mathis did not explicitly address the
custody issue, the language of the three justice dissent, language which is
remarkably similar to that used in decisions by courts that have tried to limit
the Mathis decision, seems to imply otherwise.
CONCLUSION – THE TEST IN PRACTICE
By following the trend and adopting the additional restraint test, the New
Hampshire Supreme Court has set the bar high for prisoners contesting the
constitutionality of their statements. While this new standard certainly
does address the societal needs for crimes to be solved, prison administration
to run smoothly, and justice to be served, it may eventually fail under the
scrutiny of the U.S. Supreme Court as the solution to this “glitch” in the
traditional Miranda analysis. As the courts continue to distance
themselves from Mathis, it is easy to imagine that the principles that underlie
that decision – those articulated in Miranda – can easily be lost. For
example, while Miranda errs on the side of protecting the individual’s Fifth
Amendment rights, sometimes at the cost of society’s need for justice, the
additional restraint test seems to err on the side of society’s need for justice
and smoothly run prison administration, potentially at the cost of individual
Prisoners are probably the most “not free to leave” people in the
country. However, like the defendants in Ford and Dorval, prisoners all
over the country have met with limited success when arguing that as a result of
their incarceration they are ipso facto “in custody.” While some courts
may find this argument fails for policy reasons, and others find it fails on
principle, most courts have adopted the Ninth Circuit’s reasoning.
Not only have the courts rejected the notion that prisoners are by their very
nature always “in custody;” in doing so they have also set the “in custody”
standard for prisoners arguably high. In fact, most have found that to
hold otherwise would not further the purposes of Miranda, but directly conflict
with its purpose. The additional restraint standard may be high. It
may never be in a suspect’s best interest to make a confession or a statement to
law enforcement out of foolishness, guilt, or bravado.124 However,
the goal of Miranda is not to prevent confessions.125 The goal of
Miranda is to prevent compulsion.126 While attempting to address
societal concerns and expectations that crimes be solved and justice be served,
it is questionable whether this standard also addresses the need to prevent such
compulsion and protect an individual’s right not to be coerced.127
1. United States v. Mathis, 391 U.S. 1
2. Id. at 4-5 (citing Miranda v. Arizona, 384 U.S. 436
3. See, e.g., Garcia v. Singletary, 13 F.3d 1487 (11th Cir.
1994); United States v. Conley, 779 F.2d 970 (4th Cir. 1985); United States v.
Chamberlain, 163 F.3d 499 (8th Cir. 1998); United States v. Menzer, 29 F.3d 1223
(7th Cir. 1994).
4. State v. Ford, _ N.H. _, _, 738 A.2d 937, 940
10. Brief for the State at 7, State v.
Ford, _ N.H. _, 738 A.2d 937 (1999) (No. 97-617).
11. Ford, 738 A.2d at
12. Brief for the State at 8, Ford (No. 97-617).
738 A.2d at 940.
14. Brief for the State at 8, Ford (No.
16. Ford, 738 A.2d at 940.
18. Brief for the State at 8-9, Ford (No. 97-617).
19. Id. at
21. Ford, 738 A.2d at 940.
25. Brief for the Defendant at 11,
Ford (No. 97-617).
27. Brief for the State at 17-18,
Ford (No. 97-617).
28. Id. at 18-19.
29. Id. at
32. Ford, 738 A.2d at
37. Id at 945.
38. State v. Dorval, _
N.H. _, _, 743 A.2d 836, 837 (1999).
39. Brief for the Defendant at 9,
State v. Dorval, _ N.H. _, 743 A.2d 836 (1999) (No.
41. Dorval, 743 A.2d at 837.
for the Defendant at 9, Dorval (No. 97-560).
43. Dorval, 743 A.2d at
44. Brief for the Defendant at 9, Dorval (No.
45. Dorval, 743 A.2d at 837.
52. Brief for the Defendant at 15, Dorval (No.
54. Id. at
57. Brief for the State at 26,
Dorval (No. 97-560).
58. See id. at 26-29.
59. Id. at
60. Dorval, 743 A.2d at 838 (citing State v. Ford, _ N.H. _, _, 738
A.2d 937, 943 (1999)).
67. Mathis, 391 U.S.
68. See id. at 5.
69. Id. at 2.
70. Id. at
71. Id. at 2.
72. See id. at 3.
73. Id. at
77. Id. at
79. See id at 5.
80. Laurie Magid,
Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated
Suspects, 58 OHIO ST. L.J. 883, 936-37 (1997).
81. Id. at
82. See, e.g., Conley, 779 F.2d at
84. Cervantes v. Walker, 589 F.2d 424, 427 (9th
85. See, e.g., id. at 428; Conley, 779 F. 2d at 973; Ford,
738 A.2d at 943 ; Dorval, 743 A.2d at 838.
86. See Cervantes, 589 F.2d
87. See id. at 427-428 (citing United States v. Curtis, 568
F.2d 643 (9th Cir. 1978)).
88. Id. at
90. Id. at 426-427.
91. Id. at
92. Id. at 426-427.
93. Id. at
102. Id. at 427-428 (citing Curtis, 568 F.2d at
103. Id. at 428
104. See Oregon v. Mathison, 429
U.S. 492 (1977).
105. Id. at 495.
106. Cervantes, 589 F.2d at
108. See Mathis, 391 U.S. at
110. Id. at 4-5
111. Id. at 1-4.
Id. at 4.
113. Id. at 5-8.
115. Id. at
116. Id. at 6-7.
117. Id. at 7-8.
118. See id. at
120. See id. at 7-8.
121. Id. at
122. See id. at 7-8.
123. Id. at 7.
124. See Magid,
supra note 80, at 952.
Deanne M. DiCenzo, Class of 2001,
Franklin Pierce Law Center
Concord, New Hampshire.