This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas.

In Texas, a defendant’s statement is generally not admissible against the defendant if he or she is subjected to custodial interrogation and law enforcement has not complied with the requirements of Miranda v. Arizona and Article 38.22 of the Texas Code of Criminal Procedure.

If the defendant is not in custody at the time he or she makes the statement, the statement may be admissible during trial as an admission of a party opponent under Texas Rule of Evidence 801(d)(2).

When is a person “in custody”?

Whether a person is in custody for the purposes of Miranda or Article 38.22 depends upon a number of factors. Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

A suspect will generally not be considered in custody if he or she voluntarily goes to the police station to answer questions.  In California v. Beheler, the US Supreme Court more narrowly defined custody as “whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”  Courts may ultimately consider a number of factors in determining whether someone is in custody including:

(1) the location of the encounter and whether it was familiar to the suspect, or at least neutral or public;

(2) the number of officers questioning the suspect;

(3) the degree of physical restraint used to detain the suspect;

(4) the duration and character of the interrogation;

(5) the language used to summon the suspect;

(6) the extent to which the suspect is confronted with evidence of guilt; and

(7) whether the suspect initiated contact with the police

© 2021 David A. Nachtigall, Attorney at Law, PLLC