Talking to the Police in a Michigan Domestic Violence Investigation: Your Rights at the Scene and After

Anything either person says to police during a domestic violence investigation can end up as evidence, and officers do not have to give Miranda warnings before ordinary questioning at the scene. Miranda warnings are required only when a person is in custody and being interrogated.^[1][2]

This page covers the rights of a person who is suspected or accused, and then the position of the person named as the victim and other witnesses, who have different rights and different obligations.

If you are in danger, call 911. Speaking with a domestic violence advocate is separate from speaking with police: the National Domestic Violence Hotline is free and confidential, 24/7, at 1-800-799-SAFE (7233) or by texting START to 88788.^[8]

When does Miranda apply?

Two things have to be present together: custody and interrogation.^[1]

Situation	Are warnings required?
Officers arrive and ask everyone "what happened?"	Generally no. General on-the-scene questioning as to facts surrounding a crime is not affected by Miranda.[2]
A person in custody is asked questions about the incident	Yes. Miranda warnings are required when a person is subject to custodial interrogation.[1]
A person in custody is not asked direct questions, but officers say or do things they should know are reasonably likely to draw out an incriminating response	Yes. Interrogation includes express questioning "or its functional equivalent."[9]
A detective phones days later and the person agrees to talk	Usually no, because warnings depend on custody.[1]

Whether a scene has turned into "custody" is decided case by case. Courts ask whether a reasonable person would have felt he or she was not at liberty to end the questioning and leave, and whether the setting presented the same inherently coercive pressures as station-house questioning.^[10] The test looks at the objective circumstances of the questioning.^[10] Courts sort this out later, on a motion to suppress, which is covered in Motions to suppress evidence.

What are the warnings?

Before custodial questioning, a suspect must be warned:^[3]

1. That he or she has the right to remain silent.^[3]
2. That anything he or she says can be used against him or her in a court of law.^[3]
3. That he or she has the right to the presence of an attorney.^[3]
4. That if he or she cannot afford an attorney, one will be appointed before any questioning if he or she so desires.^[3]

Unless a person in custody has been given the warnings and still waives those rights, no evidence obtained as a result of the interrogation can be used against him or her.^[4] The consequence stated in that rule is about the evidence obtained from the interrogation; it does not provide for dismissal of the charge.^[4]

If you are the person being investigated

Three points come from the law above.

Statements made before arrest count. Because general on-the-scene questioning is not affected by Miranda, the lack of warnings does not keep out what a person who is not in custody says while officers are sorting out the call.^[2][1] A party's own statement is not hearsay when it is offered against that party.^[11] Officers are also required to write a narrative of the incident and record how injuries were sustained, so what each person says tends to go into the report that reaches the prosecutor.^[12][13]

Silence after arrest and warnings cannot be held against you. A prosecutor may not refer to a defendant's post-arrest, post-Miranda silence with the police.^[14] Silence earlier on is treated differently: the Court of Appeals has said a prosecutor may not comment on a defendant's silence in the face of accusation, but may comment on silence that occurred before any police contact.^[15] At trial, every defendant has the absolute right not to testify, and the jury must not consider that choice.^[16]

A lawyer can be present. The warnings include the right to the presence of an attorney during questioning, appointed if the person cannot afford one.^[3] Later, at arraignment, the court must also advise of the right to an attorney at all court proceedings.^[17] See The right to a lawyer.

In practical terms, a person who does not want to answer questions can say so plainly and politely, and can say that he or she wants to speak with a lawyer first. Staying silent is not the same as physically resisting; a person can decline to answer and still follow an officer's directions. Whether to give a statement in a particular case is a judgment call best made with a lawyer who knows the facts.

Two related traps are worth knowing:

• Polygraphs. Polygraph results are inadmissible, but statements a defendant makes before, during or after a polygraph examination are not automatically excluded.^[18][19] See Polygraph tests.
• Messages to the other person. A defendant's own threat is treated as an opposing party's statement, not hearsay, and a threat against a witness is generally admissible as conduct showing consciousness of guilt.^[20] A no-contact condition can also take effect while the defendant is still in jail.^[21] See Text messages and social media evidence.

If you are the person named as the victim, or a witness

The statutes described in this guide place duties on the officer: to investigate, to hand the victim a written notice of rights, and to write a report.^[22][23][12] They do not, in terms, order the person named as the victim to give a statement at the scene. Obligations for witnesses arrive later, through the court.

What you tell the officer can be used without you. Under MCL 768.27c, a statement that narrates, describes or explains the infliction or threat of physical injury on the person making it can be admitted in a domestic violence case if it was made to a law enforcement officer, at or near the time of the injury or threat, under circumstances that indicate its trustworthiness.^[5] The statute does not require that the person who made the statement be unavailable.^[24] A 911 call describing events as they happen is not barred by the Confrontation Clause, because statements made to meet an ongoing emergency are not "testimonial"; it still has to satisfy the hearsay rules.^[25][26][27] Statements given to officers after the emergency is over are treated differently under the Confrontation Clause.^[28] See Statements to police under MCL 768.27c and 911 calls as evidence.

You can be subpoenaed. If a person fails to comply with a properly served subpoena, the court may treat the failure as contempt of court.^[6] A witness who refuses to be sworn or to testify about a matter that is not privileged, after the court orders it, may also be held in contempt.^[7] Being married to the defendant does not usually change this, because the spousal privilege does not apply in a case growing out of a personal wrong or injury done by one spouse to the other.^[29] See Can a victim refuse to testify?

An earlier statement follows you into court. If a witness testifies differently from what she or he told the officer, either side may use the earlier statement to challenge the testimony.^[30] An unsworn earlier statement is generally not proof of the facts by itself unless a hearsay exception applies, but a prior inconsistent statement given under penalty of perjury at a hearing can be.^[31][32] If a witness can no longer recall, a statement written or adopted when the matter was fresh may be read into evidence.^[33]

Truthfulness matters in both directions. Making a false report of a crime requires proof that the report was false, that the person knew it was false, and that it was made intentionally.^[34] Perjury requires a false statement under oath in a court proceeding.^[35] See Recanting: when the accuser changes the story and False report of domestic violence.

Some conversations are protected. A confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent, except as provided in the child protection law.^[36] A conversation with a police officer has no such protection.

What people get wrong

"No Miranda warning means the case gets thrown out." Miranda applies only to custodial interrogation, and the remedy is exclusion of the statement.^[1][4]

"I was not under arrest, so what I said does not count." General on-the-scene questioning is not covered by Miranda, so the lack of warnings does not keep those answers out.^[2]

"If I tell the officer I do not want to prosecute, my statement goes away." The report goes to the prosecutor within 48 hours after the incident is reported, and the prosecutor alone decides whether to prosecute.^[13][37]

"If I stop cooperating, nothing I said earlier can be used." Statements to officers and to 911 can be admitted under the rules described above, and a subpoena can compel attendance.^[5][26][6] See Can the victim drop the charges?