Statements Made Without Miranda – Admissible or Not?

December 17, 2025

Society generally knows about Miranda¹ warnings. Within Miranda is the right not to make statements against one’s self-interest. Under the United States Constitution’s Fifth Amendment, a person generally has the right to not make statements to police: “…nor shall [any person] be compelled in any criminal case to be a witness against himself…” The Colorado Constitution also has an analogous provision: “[n]o person shall be compelled to testify against himself in a criminal case…”²

When a suspect encounters police and speaks with an officer, there is a common misperception that anything the person says cannot be used against him or her unless law enforcement first provides a person with a Miranda advisement. This is incorrect. If police are investigating a crime but have not placed the suspect in custody, then any statements made during the course of the investigation can be used against him or her.³

A natural segue to this is “when is a person in custody?” It is not as simple as being placed in handcuffs. In Colorado, courts apply a multi-factor test to determine if someone has been placed in custody and statements should be suppressed because he or she was not provided Miranda warnings. Those factors include:

(1) the time, place, and purpose of the encounter;

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer’s tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation; and

(9) the defendant’s verbal or nonverbal response to such directions.⁴

This list, however, is not conclusive. A trial court may consider many factors, but no single factor is determinative, and a trial judge is not limited in the number of factors that may evaluated.⁵

As one can see from the above list, there are multiple scenarios where a person is likely in custody but has not been formally told by police that he or she is under arrest or placed in handcuffs. For instance, if a person is placed in a closed and locked interrogation room with multiple detectives, subjected to 4 or 5 hours of interrogation, asked pointed questions about how that individual was likely involved in a crime and police respond to the person’s statements with lines such as “you’re lying” or “I don’t believe you,” a judge will probably consider that person in custody.

If a judge weighs the listed factors above under a test called the “totality of the circumstances” and determines the individual was in custody, any statements made without Miranda will be suppressed. Conversely, if the court looks at the facts of the encounter and finds the person was not in custody, any statements he or she made during the police encounter can be used as evidence at trial.