As we noted yesterday, Miranda and its progeny are concerned with statements that are made as the product of custodial interrogation. In other words, any statements by a suspect of a crime while the police are questioning them when that person is in custody. It seems simple enough. However, as the law goes, the issue can be quite muddy. That leads us to the issue of the day--what statements are not protected by Miranda.
For example, assume that you have been pulled over and the officer suspects you of DWI. The officer then asks you step out and perform the Standard Field Sobriety Tests. Is this not the epitome of providing self-incrimination evidence to the police. Your performance on those tests is the arsenal by which the prosecution will attempt to convict you. However, courts in Texas have routinely held that you are not in custody when performing these tests. Even though we are not free to leave or terminate the encounter because we know that we would be arrested, the courts have held that you are not in custody--thus, the two-pronged element of CUSTODIAL INTERROGATION does not apply.
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