U.S. Supreme Court Pennsylvania v. Muniz, 496
U.S. 582 (1990) Pennsylvania v. Muniz No. 89-213 Argued Feb. 27, 1990 Decided June 18, 1990 496
U.S. 582 CERTIORARI TO THE SUPERIOR COURT OF
PENNSYLVANIA Syllabus Respondent Muniz was arrested for driving while under the
influence on a Pennsylvania highway. Without being advised of his
rights under Miranda v. Arizona, 384 U.
S. 436 , he was taken to a Booking Center where, as was
the routine practice, he was told that his actions and voice would
be videotaped. He then answered seven questions regarding his name,
address, height, weight, eye color, date of birth, and current age,
stumbling over two responses. He was also asked, and was unable to
give, the date of his sixth birthday. In addition, he made several
incriminating statements while he performed physical sobriety tests
and when he was asked to submit to a breathalyzer test. He refused
to take the breathalyzer test and was advised, for the first time,
of his Miranda rights. Both the video and audio portions
of the tape were admitted at trial, and he was convicted. His
motion for a new trial on the ground that the court should have
excluded, inter alia, the videotape was denied. The
Pennsylvania Superior Court reversed. While finding that the
videotape of the sobriety testing exhibited physical rather than
testimonial evidence within the meaning of the Fifth Amendment, the
court concluded that Muniz's answers to questions and his other
verbalizations were testimonial and, thus, the audio portion of the
tape should have been suppressed in its entirety. Held: The judgment is vacated and remanded.

															377 Pa.Super. 382, 547
A.2d 419 , (1988), vacated and remanded.

															Justice BRENNAN delivered the opinion of the Court with respect
to Parts I, II, III-A, III-B, and IV, concluding that only Muniz's
response to the sixth birthday question constitutes a testimonial
response to custodial interrogation for purposes of the
Self-Incrimination Clause of the Fifth Amendment. Pp. 496 U. S.
588 -600, 496 U. S.
602 -605.

															(a) The privilege against self-incrimination protects an
"accused from being compelled to testify against himself, or
otherwise provide the State with evidence of a testimonial or
communicative nature," Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 ,
but not from being compelled by the State to produce "real or
physical evidence," id. at 384 U. S. 764 .
To be testimonial, the communication must, "explicitly or
implicitly, relate a factual assertion or disclose information." Doe v. United States, 487 U. S. 201 , 487 U. S. 210 .
Pp. 496 U. S.
588 -590. Page 496 U. S. 583 (b) Muniz's answers to direct questions are not rendered
inadmissible by Miranda merely because the slurred nature
of his speech was incriminating. Under Schmerber and its
progeny, any slurring of speech and other evidence of lack of
muscular coordination revealed by his responses constitute
nontestimonial components of those responses. Requiring a suspect
to reveal the physical manner in which he articulates words, like
requiring him to reveal the physical properties of the sound of his
voice by reading a transcript, see United States v.
Dionisio, 410 U. S. 1 , does
not, without more, compel him to provide a "testimonial" response
for purposes of the privilege. Pp. 496 U. S.
590 -592.

															(c) However, Muniz's response to the sixth birthday question was
incriminating not just because of his delivery, but also because
the content of his answer supported an inference that his mental
state was confused. His response was testimonial because he was
required to communicate an express or implied assertion of fact or
belief and, thus, was confronted with the "trilemma" of truth,
falsity, or silence, the historical abuse against which the
privilege against self-incrimination was aimed. By hypothesis, the
custodial interrogation's inherently coercive environment precluded
the option of remaining silent, so he was left with the choice of
incriminating himself by admitting the truth that he did not then
know the date of his sixth birthday, or answering untruthfully by
reporting a date that he did not know was accurate (which would
also have been incriminating). Since the state court's holdings
that the sixth birthday question constituted an unwarned
interrogation and that Muniz's answer was incriminating were not
challenged, this testimonial response should have been suppressed.
Pp. 496 U. S.
592 -600.

															(d) Muniz's incriminating utterances during the sobriety and
breathalyzer tests were not prompted by an interrogation within the
meaning of Miranda, and should not have been suppressed.
The officer's dialogue with Muniz concerning the physical sobriety
tests consisted primarily of carefully scripted instructions as to
how the tests were to be performed that were not likely to be
perceived as calling for any verbal response. Therefore, they were
not "words or actions" constituting custodial interrogation, and
Muniz's incriminating utterances were "voluntary." The officer
administering the breathalyzer test also carefully limited her role
to providing Muniz with relevant information about the test and the
implied consent law. She questioned him only as to whether he
understood her instructions and wished to submit to the test. These
limited and focused inquiries were necessarily "attendant to" a
legitimate police procedure, and were not likely to be perceived as
calling for any incriminating response. Pp. 496 U. S.
602 -605.

															Justice BRENNAN, joined by Justice O'CONNOR, Justice SCALIA, and
Justice KENNEDY, concluded in Part III-C that the first seven Page 496 U. S. 584 questions asked Muniz fall outside Miranda protections
and need not be suppressed. Although they constituted custodial
interrogation, see Rhode Island v. Innis, 446 U.
S. 291 , they are nonetheless admissible because the
questions were asked "for recordkeeping purposes only," and
therefore they fall within a "routine booking question" exception
which exempts from Miranda's coverage questions to secure
the "biographical data necessary to complete booking or pretrial
services," United States v. Horton, 873 F.2d 180, 181, n.
2. Pp. 496 U. S.
600 -602.

															THE CHIEF JUSTICE, joined by Justice WHITE, Justice BLACKMUN,
and Justice STEVENS, concluded that Muniz's responses to the
"booking" questions were not testimonial, and therefore do not
warrant application of the privilege. P. 496 U. S.
608 .

															BRENNAN, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III-A, and
IV, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS,
O'CONNOR, SCALIA, and KENNEDY, JJ., joined, the opinion of the
Court with respect to Part III-B, in which MARSHALL, O'CONNOR,
SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to
Part III-C, in which O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
REHNQUIST, C.J., filed an opinion concurring in part, concurring in
the result in part, and dissenting in part, in which WHITE,
BLACKMUN, and STEVENS, JJ., joined, post, p. 496 U. S. 606 .
MARSHALL, J., filed an opinion concurring in part and dissenting in
part, post, p. 496 U. S.
608 .

															Justice BRENNAN delivered the opinion of the Court, except as to
Part III-C.

															We must decide in this case whether various incriminating
utterances of a drunk-driving suspect, made while performing a
series of sobriety tests, constitute testimonial responses to
custodial interrogation for purposes of the Self-Incrimination
Clause of the Fifth Amendment. Page 496 U. S. 585 I During the early morning hours of November 30, 1986, a patrol
officer spotted respondent Inocencio Muniz and a passenger parked
in a car on the shoulder of a highway. When the officer inquired
whether Muniz needed assistance, Muniz replied that he had stopped
the car so he could urinate. The officer smelled alcohol on Muniz's
breath and observed that Muniz's eyes were glazed and bloodshot and
his face was flushed. The officer then directed Muniz to remain
parked until his condition improved, and Muniz gave assurances that
he would do so. But as the officer returned to his vehicle, Muniz
drove off. After the officer pursued Muniz down the highway and
pulled him over, the officer asked Muniz to perform three standard
field sobriety tests: a "horizontal gaze nystagmus" test, a "walk
and turn" test, and a "one leg stand" test. [ Footnote 1 ] Muniz performed these tests poorly,
and he informed the officer that he had failed the tests because he
had been drinking.

															The patrol officer arrested Muniz and transported him to the
West Shore facility of the Cumberland County Central Booking
Center. Following its routine practice for receiving persons
suspected of driving while intoxicated, the Booking Center'
videotaped the ensuing proceedings. Muniz was informed that his
actions and voice were being recorded, but he Page 496 U. S. 586 was not at this time (nor had he been previously) advised of his
rights under Miranda v. Arizona, 384 U.
S. 436 (1966). Officer Hosterman first asked Muniz his
name, address, height, weight, eye color, date of birth, and
current age. He responded to each of these questions, stumbling
over his address and age. The officer then asked Muniz, "Do you
know what the date was of your sixth birthday?" After Muniz offered
an inaudible reply, the officer repeated, "When you turned six
years old, do you remember what the date was?" Muniz responded,
"No, I don't."

															Officer Hosterman next requested Muniz to perform each of the
three sobriety tests that Muniz had been asked to perform earlier
during the initial roadside stop. The videotape reveals that his
eyes jerked noticeably during the gaze test, that he did not walk a
very straight line, and that he could not balance himself on one
leg for more than several seconds. During the latter two tests, he
did not complete the requested verbal counts from one to nine and
from one to thirty. Moreover, while performing these tests, Muniz
"attempted to explain his difficulties in performing the various
tasks, and often requested further clarification of the tasks he
was to perform." 377 Pa.Super. 382, 390, 547
A.2d 419 , 423 (1988).

															Finally, Officer Deyo asked Muniz to submit to a breathalyzer
test designed to measure the alcohol content of his expelled
breath. Officer Deyo read to Muniz the Commonwealth's Implied
Consent Law, 75 Pa.Cons.Stat. § 1547 (1987), and explained that,
under the law, his refusal to take the test would result in
automatic suspension of his drivers' license for one year. Muniz
asked a number of questions about the law, commenting in the
process about his state of inebriation. Muniz ultimately refused to
take the breath test. At this point, Muniz was for the first time
advised of his Miranda rights. Muniz then signed a
statement waiving his rights and admitted in response to further
questioning that he had been driving while intoxicated. Page 496 U. S. 587 Both the video and audio portions of the videotape were admitted
into evidence at Muniz' bench trial, [ Footnote 2 ] along with the arresting officer's testimony
that Muniz failed the roadside sobriety tests and made
incriminating remarks at that time. Muniz was convicted of driving
under the influence of alcohol in violation of 75 Pa.Cons.Stat. §
3731(a)(1) (1987). Muniz filed a motion for a new trial, contending
that the court should have excluded the testimony relating to the
field sobriety tests and the videotape taken at the Booking Center
"because they were incriminating and completed prior to [Muniz's]
receiving his Miranda warnings." App. to Pet. for Cert.
C5-C6. The trial court denied the motion, holding that

															"requesting a driver, suspected of driving under the influence
of alcohol, to perform physical tests or take a breath analysis
does not violate [his] privilege against self-incrimination because
[the] evidence procured is of a physical nature rather than
testimonial, and therefore no Miranda warnings are
required." id. at C6, quoting Commonwealth v. Benson, 280
Pa.Super. 20, 29, 421
A.2d 383 , 387 (1980).

															On appeal, the Superior Court of Pennsylvania reversed. The
appellate court agreed that when Muniz was asked "to submit to a
field sobriety test, and later perform these tests before the
videotape camera, no Miranda warnings were required"
because such sobriety tests elicit physical rather than testimonial
evidence within the meaning of the Fifth Amendment. 377 Pa.Super.
at 387, 547 A.2d at 422. The court concluded, however, that

															"when the physical nature of the tests begins to yield
testimonial and communicative statements . . . the protections
afforded by Miranda are invoked." Ibid. The court explained that Muniz's answer to the
question regarding his sixth birthday and the statements and
inquiries he made while performing the physical Page 496 U. S. 588 dexterity tests and discussing the breathalyzer test "are
precisely the sort of testimonial evidence that we expressly
protected in [previous cases]," id. at 390, 547 A.2d at
423, because they "reveal[ed] his thought processes." Id. at 389, 547 A.2d at 423. The court further explained:

															"[N]one of Muniz's utterances were spontaneous, voluntary
verbalizations. Rather, they were clearly compelled by the
questions and instructions presented to him during his detention at
the Booking Center. Since the . . . responses and communications
were elicited before Muniz received his Miranda warnings,
they should have been excluded as evidence." Id. at 390, 547 A.2d at 423. [ Footnote 3 ] Concluding that the audio portion of the
videotape should have been suppressed in its entirety, the court
reversed Muniz's conviction and remanded the case for a new trial.
[ Footnote 4 ] After the
Pennsylvania Supreme Court denied the Commonwealth's application
for review, 522 Pa. 575, 559 A.2d 36 (1989), we granted certiorari.
493 U.S. 916 (1989). II The Self-Incrimination Clause of the Fifth Amendment [ Footnote 5 ] provides that no "person .
. . shall be compelled in any criminal case to be a witness against
himself." U.S. Const., Amdt. 5. Although the text does not
delineate the ways in which a person might be made Page 496 U. S. 589 a "witness against himself," cf. Schmerber v.
California, 384 U. S. 757 , 384 U. S.
761 -762, n. 6 (1966), we have long held that the
privilege does not protect a suspect from being compelled by the
State to produce "real or physical evidence." Id. at 384 U. S. 764 .
Rather, the privilege "protects an accused only from being
compelled to testify against himself, or otherwise provide the
State with evidence of a testimonial or communicative nature." Id. at 384 U. S.
761 .

															"[I]n order to be testimonial, an accused's communication must
itself, explicitly or implicitly, relate a factual assertion or
disclose information. Only then is a person compelled to be a
'witness' against himself." Doe v. United States, 487 U. S. 201 , 487 U. S. 210 (1988).

															In Miranda v. Arizona, 384 U.
S. 436 (1966), we reaffirmed our previous understanding
that the privilege against self-incrimination protects individuals
not only from legal compulsion to testify in a criminal courtroom
but also from "informal compulsion exerted by law-enforcement
officers during in-custody questioning." Id. at 384 U. S. 461 .
Of course, voluntary statements offered to police officers "remain
a proper element in law enforcement." Id. at 384 U. S. 478 .
But

															"without proper safeguards, the process of in-custody
interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the
individual's will to resist and to compel him to speak where he
would not otherwise do so freely." Id. at 384 U. S. 467 .
Accordingly, we held that protection of the privilege against
self-incrimination during pretrial questioning requires application
of special "procedural safeguards." Id. at 384 U. S.
444 .

															"Prior to any questioning, the person must be warned that he has
a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed." Ibid. Unless a suspect "voluntarily, knowingly and
intelligently" waives these rights, ibid., any
incriminating responses to questioning may not be introduced into
evidence in the prosecution's case in chief in a subsequent
criminal proceeding. Page 496 U. S. 590 This case implicates both the "testimonial" and "compulsion"
components of the privilege against self-incrimination in the
context of pretrial questioning. Because Muniz was not advised of
his Miranda rights until after the videotaped proceedings
at the Booking Center were completed, any verbal statements that
were both testimonial in nature and elicited during custodial
interrogation should have been suppressed. We focus first on
Muniz's responses to the initial informational questions, then on
his questions and utterances while performing the physical
dexterity and balancing tests, and finally on his questions and
utterances surrounding the breathalyzer test. III In the initial phase of the recorded proceedings, Officer
Hosterman asked Muniz his name, address, height, weight, eye color,
date of birth, current age, and the date of his sixth birthday.
Both the delivery and content of Muniz's answers were
incriminating. As the state court found,

															"Muniz's videotaped responses . . . certainly led the finder of
fact to infer that his confusion and failure to speak clearly
indicated a state of drunkenness that prohibited him from safely
operating his vehicle."

															377 Pa.Super. at 390, 547 A.2d at 423. The Commonwealth argues,
however, that admission of Muniz's answers to these questions does
not contravene Fifth Amendment principles because Muniz's statement
regarding his sixth birthday was not "testimonial" and his answers
to the prior questions were not elicited by custodial
interrogation. We consider these arguments in turn. A We agree with the Commonwealth's contention that Muniz's answers
are not rendered inadmissible by Miranda merely because
the slurred nature of his speech was incriminating. The physical
inability to articulate words in a clear manner due to "the lack of
muscular coordination of his tongue and mouth," Brief for
Petitioner 16, is not itself a testimonial Page 496 U. S. 591 component of Muniz's responses to Officer Hosterman's
introductory questions. In Schmerber v. California, supra, we drew a distinction between "testimonial" and "real or physical
evidence" for purposes of the privilege against self-incrimination.
We noted that, in Holt v. United States, 218 U.
S. 245 , 218 U. S.
252 -253 (1910), Justice Holmes had written for the Court
that

															"[t]he prohibition of compelling a man in a criminal court to be
witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material."

															384 U.S. at 384 U. S. 763 .
We also acknowledged that

															"both federal and state courts have usually held that it offers
no protection against compulsion to submit to fingerprinting,
photographing, or measurements, to write or speak for
identification, to appear in court, to stand, to assume a stance,
to walk, or to make a particular gesture." Id. at 384 U. S. 764 .
Embracing this view of the privilege's contours, we held that

															"the privilege is a bar against compelling 'communications' or
'testimony,' but that compulsion which makes a suspect or accused
the source of 'real or physical evidence' does not violate it." Ibid. Using this "helpful framework for analysis," ibid., we held that a person suspected of driving while
intoxicated could be forced to provide a blood sample, because that
sample was "real or physical evidence" outside the scope of the
privilege and the sample was obtained in manner by which
"[p]etitioner's testimonial capacities were in no way implicated." Id. at 384 U. S.
765 .

															We have since applied the distinction between "real or physical"
and "testimonial" evidence in other contexts where the evidence
could be produced only through some volitional act on the part of
the suspect. In United States v. Wade, 388 U.
S. 218 (1967), we held that a suspect could be compelled
to participate in a lineup and to repeat a phrase provided by the
police so that witnesses could view him and listen to his voice. We
explained that requiring his presence and speech at a lineup
reflected "compulsion of the accused to Page 496 U. S. 592 exhibit his physical characteristics, not compulsion to disclose
any knowledge he might have." Id. at 388 U. S. 222 ; see id. at 388 U. S.
222 -223 (suspect was "required to use his voice as an
identifying physical characteristic"). In Gilbert v.
California, 388 U. S. 263 (1967), we held that a suspect could be compelled to provide a
handwriting exemplar, explaining that such an exemplar,

															"in contrast to the content of what is written, like the voice
or body itself, is an identifying physical characteristic outside
[the privilege's] protection." Id. at 388 U. S.
266 -267. And in United States v. Dionisio, 410 U. S. 1 (1973),
we held that suspects could be compelled to read a transcript in
order to provide a voice exemplar, explaining that the

															"voice recordings were to be used solely to measure the physical
properties of the witnesses' voices, not for the testimonial or
communicative content of what was to be said." Id. at 410 U. S. 7 .

															Under Schmerber and its progeny, we agree with the
Commonwealth that any slurring of speech and other evidence of lack
of muscular coordination revealed by Muniz's responses to Officer
Hosterman's direct questions constitute nontestimonial components
of those responses. Requiring a suspect to reveal the physical
manner in which he articulates words, like requiring him to reveal
the physical properties of the sound produced by his voice, see
Dionisio, supra, does not, without more, compel him to provide
a "testimonial" response for purposes of the privilege. B This does not end our inquiry, for Muniz's answer to the sixth
birthday question was incriminating, not just because of his
delivery, but also because of his answer's content; the trier of
fact could infer from Muniz's answer (that he did not know the
proper date) that his mental state was confused. [ Footnote 6 ] Page 496 U. S. 593 The Commonwealth and United States as amicus curiae, argue that this incriminating inference does not trigger the
protections of the Fifth Amendment privilege because the inference
concerns "the physiological functioning of [Muniz's] brain," Brief
for Petitioner 21, which is asserted to be every bit as "real or
physical" as the physiological makeup of his blood and the timbre
of his voice.

															But this characterization addresses the wrong question; that the
"fact" to be inferred might be said to concern the physical status
of Muniz's brain merely describes the way in which the inference is
incriminating. The correct question for present purposes is whether
the incriminating inference of mental confusion is drawn from a
testimonial act or from physical evidence. In Schmerber, for example, we held that the police could compel a suspect to
provide a blood sample in order to determine the physical makeup of
his blood, and thereby draw an inference about whether he was
intoxicated. This compulsion was outside of the Fifth Amendment's
protection, not simply because the evidence concerned the suspect's
physical body, but rather because the evidence was obtained in a
manner that did not entail any testimonial act on the part of the
suspect:

															"[n]ot even a shadow of testimonial compulsion upon or enforced
communication by the accused was involved either in the extraction
or in the chemical analysis."

															384 U.S. at 384 U. S. 765 .
In contrast, had the police instead asked the suspect directly
whether his blood contained a high concentration of alcohol, his
affirmative response would have been testimonial even though it
would have been used to draw the same inference concerning his
physiology. See ibid. ("[T]he blood test evidence . . .
was neither [suspect's] testimony nor evidence relating to some
communicative act"). In this case, the question is not whether a
suspect's "impaired mental faculties" can fairly be characterized
as an aspect of his physiology, but rather whether Muniz's
response Page 496 U. S. 594 to the sixth birthday question that gave rise to the inference
of such an impairment was testimonial in nature. [ Footnote 7 ]

															We recently explained in Doe v. United States, 487 U. S. 201 (1988), that

															"in order to be testimonial, an accused's communication must
itself, explicitly or implicitly, relate a factual assertion or
disclose information." Id. at 487 U. S. 210 .
We reached this conclusion after addressing our reasoning in Schmerber, supra, and its progeny:

															"The Court accordingly held that the privilege was not
implicated in [the line of cases beginning with Schmerber ]
because the suspect was not required 'to disclose any knowledge he
might have,' or 'to speak his guilt.' Wade, 388 U.S. at 388 U. S. 222 -223. See
Dionisio, 410 U.S. at 410 U. S.
7 ; Gilbert, 388 U.S. at 388 U. S.
266 -267. It is the 'extortion of information from the
accused,' Couch v. United States , 409
U.S. [322] at 409 U. S. 328 , the attempt
to force him 'to disclose the contents of his own mind,' Curcio
v. United States, 354 U. S. 118 , 354 U. S.
128 (1957), that implicates the Self-Incrimination
Clause. . . . 'Unless some attempt is made to secure a
communication -- written, oral or otherwise -- upon which reliance
is to be placed as involving [the accused's] consciousness of the
facts and the operations of his mind in expressing it, the demand
made upon Page 496 U. S. 595 him is not a testimonial one.' 8 Wigmore § 2265, p. 386."

															487 U.S. at 487 U. S.
210 -211. After canvassing the purposes of the privilege
recognized in prior cases, [ Footnote 8 ] we concluded that

															"[t]hese policies are served when the privilege is asserted to
spare the accused from having to reveal, directly or indirectly,
his knowledge of facts relating him to the offense or from having
to share his thoughts and beliefs with the Government. [ Footnote 9 ]" Id. at 487 U. S.
213 .

															This definition of testimonial evidence reflects an awareness of
the historical abuses against which the privilege against
self-incrimination was aimed.

															"Historically, the privilege was intended to prevent the use of
legal compulsion to extract from the accused a sworn communication
of facts which would incriminate him. Such was the process of
the Page 496 U. S. 596 ecclesiastical courts and the Star Chamber -- the inquisitorial
method of putting the accused upon his oath and compelling him to
answer questions designed to uncover uncharged offenses, without
evidence from another source. The major thrust of the policies
undergirding the privilege is to prevent such compulsion." Id. at 487 U. S. 212 (citations omitted); see also Andresen v. Maryland, 427 U. S. 463 , 427 U. S.
470 -471 (1976). At its core, the privilege reflects our
fierce " unwillingness to subject those suspected of crime to
the cruel trilemma of self-accusation, perjury or contempt,'" Doe, supra, at 487 U. S. 212 (citation omitted), that defined the operation of the Star Chamber,
wherein suspects were forced to choose between revealing
incriminating private thoughts and forsaking their oath by
committing perjury. See United States v. Nobles, 422 U. S. 225 , 422 U. S. 233 (1975) ("The Fifth Amendment privilege against compulsory
self-incrimination . . . protects `a private inner sanctum of
individual feeling and thought and proscribes state intrusion to
extract self-condemnation'") (quoting Couch v. United
States, 409 U. S. 322 , 409 U. S. 327 (1973)). We need not explore the outer boundaries of what is
"testimonial" today, for our decision flows from the concept's core
meaning. Because the privilege was designed primarily to prevent "a
recurrence of the Inquisition and the Star Chamber, even if not in
their stark brutality," Ullmann v. United States, 350 U. S. 422 , 350 U. S. 428 (1956), it is evident that a suspect is "compelled . . . to be a
witness against himself" at least whenever he must face the
modern-day analog of the historic trilemma -- either during a
criminal trial where a sworn witness faces the identical three
choices or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar
concerns. [ Footnote 10 ]
Whatever Page 496 U. S. 597 else it may include, therefore, the definition of "testimonial"
evidence articulated in Doe must encompass all responses
to questions that, if asked of a sworn suspect during a criminal
trial, could place the suspect in the "cruel trilemma." This
conclusion is consistent with our recognition in Doe that
"[t]he vast majority of verbal statements thus will be testimonial"
because "[t]here are very few instances in which a verbal
statement, either oral or written, will not convey information or
assert facts." 487 U.S. at 487 U. S. 213 . Whenever a suspect is asked for a
response requiring him to communicate an express or implied
assertion of fact or belief, [ Footnote 11 ] the suspect confronts the "trilemma" of
truth, falsity, or silence, and hence the response (whether based
on truth or falsity) contains a testimonial component.

															This approach accords with each of our post- Schmerber cases finding that a particular oral or written response to express
or implied questioning was nontestimonial; the questions presented
in these cases did not confront the suspects with this trilemma. As
we noted in Doe, 487 U.S. at 487 U. S.
210 -211, the cases upholding compelled writing and voice
exemplars did not involve situations in which suspects were asked
to communicate any personal beliefs or knowledge of facts, and
therefore the suspects were not forced to choose between Page 496 U. S. 598 truthfully or falsely revealing their thoughts. We carefully
noted in Gilbert v. California, 388 U.
S. 263 (1967), for example, that a

															"mere handwriting exemplar, in contrast to the content of
what is written, like the voice or body itself, is an
identifying physical characteristic outside [the privilege's]
protection." Id. at 388 U. S.
266 -267 (emphasis added). Had the suspect been asked to
provide a writing sample of his own composition, the content of the
writing would have reflected his assertion of facts or beliefs, and
hence would have been testimonial; but in Gilbert, "[n]o
claim [was] made that the content of the exemplars was testimonial
or communicative matter." Id. at 388 U. S. 267 .
[ Footnote 12 ] And in Doe, the suspect was asked merely to sign a consent form
waiving a privacy interest in foreign bank records. Because the
consent form spoke in the hypothetical and did not identify any
particular banks, accounts, or private records, the form neither
"communicate[d] any factual assertions, implicit or explicit, [n]or
convey[ed] any information to the Government." 487 U.S. at 487 U. S. 215 .
We concluded, therefore, that compelled execution of the consent
directive did not "forc[e] [the suspect] to express the contents of
his mind," id. at 487 U. S. 210 , n. 9, but rather forced the suspect only
to make a "nonfactual statement." Id. at 487 U. S. 213 ,
n. 11.

															In contrast, the sixth birthday question in this case required a
testimonial response. When Officer Hosterman Page 496 U. S. 599 asked Muniz if he knew the date of his sixth birthday and Muniz,
for whatever reason, could not remember or calculate that date, he
was confronted with the trilemma. By hypothesis, the inherently
coercive environment created by the custodial interrogation
precluded the option of remaining silent, see n 10, supra. Muniz was left
with the choice of incriminating himself by admitting that he did
not then know the date of his sixth birthday or answering
untruthfully by reporting a date that he did not then believe to be
accurate (an incorrect guess would be incriminating as well as
untruthful). The content of his truthful answer supported an
inference that his mental faculties were impaired, because his
assertion (he did not know the date of his sixth birthday) was
different from the assertion (he knew the date was [correct date])
that the trier of fact might reasonably have expected a lucid
person to provide. Hence, the incriminating inference of impaired
mental faculties stemmed, not just from the fact that Muniz slurred
his response, but also from a testimonial aspect of that response.
[ Footnote 13 ] Page 496 U. S. 600 The state court held that the sixth birthday question
constituted an unwarned interrogation for purposes of the privilege
against self-incrimination, 377 Pa.Super. at 390, 547 A.2d at 423,
and that Muniz's answer was incriminating. Ibid. The
Commonwealth does not question either conclusion. Therefore,
because we conclude that Muniz's response to the sixth birthday
question was testimonial, the response should have been
suppressed. C The Commonwealth argues that the seven questions asked by
Officer Hosterman just prior to the sixth birthday question --
regarding Muniz's name, address, height, weight, eye color, date of
birth, and current age -- did not constitute custodial
interrogation as we have defined the term in Miranda and
subsequent cases. In Miranda, the Court referred to
"interrogation" as actual "questioning initiated by law enforcement
officers." 384 U.S. at 384 U. S. 444 .
We have since clarified that definition, finding that the

															"goals of the Miranda safeguards could be effectuated
if those safeguards extended not only to express questioning, but
also to 'its functional equivalent.'" Arizona v. Mauro, 481 U. S. 520 , 481 U. S. 526 (1987). In Rhode Island v. Innis, 446 U.
S. 291 (1980), the Court defined the phrase "functional
equivalent" of express questioning to include

															"any words or actions on the part of the police (other than
those normally attendant to arrest and custody) Page 496 U. S. 601 that the police should know are reasonably likely to elicit an
incriminating response from the suspect. The latter portion of this
definition focuses primarily upon the perceptions of the suspect,
rather than the intent of the police." Id. at 446 U. S. 301 (footnotes omitted); see also Illinois v. Perkins, ante at 496 U. S. 296 .
However,

															"[a]ny knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion
might be an important factor in determining"

															what the police reasonably should have known. Innis,
supra, 446 U.S. at 446 U. S. 302 ,
n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning and also words
or actions that, given the officer's knowledge of any special
susceptibilities of the suspect, the officer knows or reasonably
should know are likely to "have . . . the force of a question on
the accused," Harryman v. Estelle, 616 F.2d 870, 874 (CA5
1980), and therefore be reasonably likely to elicit an
incriminating response.

															We disagree with the Commonwealth's contention that Officer
Hosterman's first seven questions regarding Muniz's name, address,
height, weight, eye color, date of birth, and current age do not
qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not
intended to elicit information for investigatory purposes. As
explained above, the Innis test focuses primarily upon
"the perspective of the suspect." Perkins, ante, at 496 U. S. 296 .
We agree with amicus United States, however, that Muniz's
answers to these first seven questions are nonetheless admissible
because the questions fall within a "routine booking question"
exception which exempts from Miranda's coverage questions
to secure the "biographical data necessary to complete booking or
pretrial services." Brief for the United States as Amicus
Curiae 12, quoting United States v. Horton, 873 F.2d
180, 181, n. 2 (CA8 1989). The state court found that the first
seven questions were "requested for recordkeeping purposes only,"
App. B16, and therefore the questions appear reasonably related to
the police's administrative Page 496 U. S. 602 concerns. [ Footnote 14 ]
In this context, therefore, the first seven questions asked at the
Booking Center fall outside the protections of Miranda and
the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer
Hosterman asked Muniz to perform the same three sobriety tests that
he had earlier performed at roadside prior to his arrest: the
"horizontal gaze nystagmus" test, the "walk and turn" test, and the
"one leg stand" test. While Muniz was attempting to comprehend
Officer Hosterman's instructions and then perform the requested
sobriety tests, Muniz made several audible and incriminating
statements. [ Footnote 15 ]
Muniz argued to the state court that both the videotaped
performance of the physical tests themselves and the audiorecorded
verbal statements were introduced in violation of Miranda .

															The court refused to suppress the videotaped evidence of Muniz's
paltry performance on the physical sobriety tests, reasoning
that

															"[r]equiring a driver to perform physical [sobriety] tests . . .
does not violate the privilege against self-incrimination because
the evidence procured is of a physical nature rather than
testimonial."

															377 Pa.Super. at 387, 547 A.2d at 422 (quoting Commonwealth
v. Benson, 280 Pa.Super. Page 496 U. S. 603 at 29, 421 A.2d at 387). [ Footnote 16 ] With respect to Muniz's verbal statements,
however, the court concluded that "none of Muniz's utterances were
spontaneous, voluntary verbalizations," 377 Pa.Super. at 390, 547
A.2d at 423, and because they were "elicited before Muniz received
his Miranda warnings, they should have been excluded as
evidence." Ibid. We disagree. Officer Hosterman's dialogue with Muniz concerning
the physical sobriety tests consisted primarily of carefully
scripted instructions as to how the tests were to be performed.
These instructions were not likely to be perceived as calling for
any verbal response, and therefore were not "words or actions"
constituting custodial interrogation, with two narrow exceptions
not relevant here. [ Footnote
17 ] The dialogue also contained limited and carefully worded
inquiries as to whether Muniz understood those instructions, but
these focused inquiries were necessarily "attendant to" the
police Page 496 U. S. 604 procedure held by the court to be legitimate. Hence, Muniz's
incriminating utterances during this phase of the videotaped
proceedings were "voluntary" in the sense that they were not
elicited in response to custodial interrogation. [ Footnote 18 ] See South Dakota v.
Neville, 459 U. S. 553 , 459 U. S. 564 ,
n. 15 (1983) (drawing analogy to "police request to submit to
fingerprinting or photography" and holding that police inquiry
whether suspect would submit to blood-alcohol test was not
"interrogation within the meaning of Miranda ").

															Similarly, we conclude that Miranda does not require
suppression of the statements Muniz made when asked to submit to a
breathalyzer examination. Officer Deyo read Muniz a prepared script
explaining how the test worked, the nature of Pennsylvania's
Implied Consent Law, and the legal consequences that would ensue
should he refuse. Officer Deyo then asked Muniz whether he
understood the nature of the test and the law and whether he would
like to submit to the test. Muniz asked Officer Deyo several
questions concerning the legal consequences of refusal, which Deyo
answered directly, and Muniz then commented upon his state of
inebriation. 377 Pa.Super. at 387, 547 A.2d at 422. After offering
to take the test only after waiting a couple of hours or drinking
some water, Muniz ultimately refused. [ Footnote 19 ] Page 496 U. S. 605 We believe that Muniz's statements were not prompted by an
interrogation within the meaning of Miranda, and therefore
the absence of Miranda warnings does not require
suppression of these statements at trial. [ Footnote 20 ] As did Officer Hosterman when
administering the three physical sobriety tests, see
supra, at 496 U. S.
603 -604, Officer Deyo carefully limited her role to
providing Muniz with relevant information about the breathalyzer
test and the implied consent law. She questioned Muniz only as to
whether he understood her instructions and wished to submit to the
test. These limited and focused inquiries were necessarily
"attendant to" the legitimate police procedure, see Neville,
supra, at 496 U. S. 564 ,
n. 15, and were not likely to be perceived as calling for any
incriminating response. [ Footnote 21 ] V We agree with the state court's conclusion that Miranda requires suppression of Muniz's response to the question regarding
the date of his sixth birthday, but we do not agree that the entire
audio portion of the videotape must be suppressed. [ Footnote 22 ] Accordingly, the court's
judgment reversing Page 496 U. S. 606 Muniz's conviction is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ]

															The "horizontal gaze nystagmus" test measures the extent to
which a person's eyes jerk as they follow an object moving from one
side of the person's field of vision to the other. The test is
premised on the understanding that, whereas everyone's eyes exhibit
some jerking while turning to the side, when the subject is
intoxicated "the onset of the jerking occurs after fewer degrees of
turning, and the jerking at more extreme angles becomes more
distinct." I. R. Erwin et al., Defense of Drunk Driving
Cases § 8 A. 99, pp. 8A-43, 8A-45 (1989). The "walk and turn" test
requires the subject to walk heel-to-toe along a straight line for
nine paces, pivot, and then walk back heel-to-toe along the line
for another nine paces. The subject is required to count each pace
aloud from one to nine. The "one leg stand" test requires the
subject to stand on one leg with the other leg extended in the air
for 30 seconds, while counting aloud from one to thirty.

															[ Footnote 2 ]

															There was a 14-minute delay between the completion of the
physical sobriety tests and the beginning of the breathalyzer test.
During this period, Muniz briefly engaged in conversation with
Officer Hosterman. This 14-minute segment of the videotape was not
shown at trial. App. 29.

															[ Footnote 3 ]

															The court did not suppress Muniz's verbal admissions to the
arresting officer during the roadside tests, ruling that Muniz was
not taken into custody for purposes of Miranda until he
was arrested after the roadside tests were completed. See
Pennsylvania v. Bruder, 488 U. S. 9 (1988).

															[ Footnote 4 ]

															The Superior Court's opinion refers to Art. 1, § 9 of the
Pennsylvania Constitution, but explains that this provision
" offers a protection against self-incrimination identical to
that provided by the Fifth Amendment.'" 377 Pa.Super. 382, 386, 547
A.2d 419 , 421 (1988) (quoting Commonwealth v. Conway, 368 Pa.Super. 488, 498, 534
A.2d 541 , 546 (1987)). The decision therefore does not rest on
an independent and adequate state ground. See Michigan v.
Long, 463 U. S. 1032 (1983). [ Footnote 5 ]

															In Malloy v. Hogan, 378 U. S. 1 (1964),
we held the privilege against self-incrimination applicable to the
States through the Fourteenth Amendment.

															[ Footnote 6 ]

															Under Pennsylvania law, driving under the influence of alcohol
consists of driving while intoxicated to a degree

															"which substantially impairs [suspect's] judgment, or clearness
of intellect, or any of the normal faculties essential to the safe
operation of an automobile." Commonwealth v. Griscavage, 512 Pa. 540, 545, 517 A.2d
1256 , 1258 (1986).

															[ Footnote 7 ] See, e.g., Doe v. United States, 487 U.
S. 201 , 487 U. S. 211 ,
n. 10 (1988) ("[T]he Schmerber line of cases does not draw
a distinction between unprotected evidence sought for its physical
characteristics and protected evidence sought for its [other]
content. Rather, the Court distinguished between the suspect's
being compelled himself to serve as evidence and the
suspect's being compelled to disclose or communicate
information or facts that might serve as or lead to
incriminating evidence") (emphasis added); cf. Baltimore Dept.
of Social Serv. v. Bouknight, 493 U.
S. 549 , 493 U. S. 555 (1990) (individual compelled to produce document or other tangible
item to State "may not claim the [Fifth] Amendment's protections
based upon the incrimination that may result from the contents or
nature of the thing demanded" but may "clai[m] the benefits of the
privilege because the act of production would amount to
testimony").

															[ Footnote 8 ] See Doe, supra, at 487 U. S.
212 -213 (quoting Murphy v. Waterfront Comm'n of New
York Harbor, 378 U. S. 52 , 378 U. S. 55 (1964) (internal citations omitted)):

															"[T]he privilege is founded on "our unwillingness to subject
those suspected of crime to the cruel trilemma of self-accusation,
perjury or contempt; our preference for an accusatorial rather than
an inquisitorial system of criminal justice; our fear that
self-incriminating statements will be elicited by inhumane
treatment and abuses; our sense of fair play which dictates a
fair state-individual balance by requiring the government . . . in
its contest with the individual to shoulder the entire load,' . . .
; our respect for the inviolability of the human personality and of
the right of each individual `to a private enclave where he may
lead a private life,' . . . ; our distrust of self-deprecatory
statements; and our realization that the privilege, while sometimes
`a shelter to the guilty,' is often `a protection to the
innocent."" [ Footnote 9 ]

															This definition applies to both verbal and nonverbal conduct;
nonverbal conduct contains a testimonial component whenever the
conduct reflects the actor's communication of his thoughts to
another. See Doe, supra, at 487 U. S.
209 -210, and n. 8; Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 ,
n. 5 (1966) ("A nod or head-shake is as much a testimonial' or
`communicative' act in this sense as are spoken words"); see
also Braswell v. United States, 487 U. S.
99 , 487 U. S. 122 (1988) (KENNEDY, J., dissenting) ("Those assertions [contained
within the act of producing subpoenaed documents] can convey
information about that individual's knowledge and state of mind as
effectively as spoken statements, and the Fifth Amendment protects
individuals from having such assertions compelled by their own
acts"). [ Footnote 10 ]

															During custodial interrogation, the pressure on the suspect to
respond flows not from the threat of contempt sanctions, but rather
from the

															"inherently compelling pressures which work to undermine the
individual's will to resist and to compel him to speak where he
would not otherwise do so freely." Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 (1966). Moreover, false testimony does not give rise directly to
sanctions (either religious sanctions for lying under oath or
prosecutions for perjury), but only indirectly (false testimony
might itself prove incriminating, either because it links (albeit
falsely) the suspect to the crime or because the prosecution might
later prove at trial that the suspect lied to the police, giving
rise to an inference of guilty conscience). Despite these
differences, however,

															"[w]e are satisfied that all the principles embodied in the
privilege apply to informal compulsion exerted by law enforcement
officers during in-custody questioning." Id. at 384 U. S. 461 ; see id. at 384 U. S. 458 (noting "intimate connection between the privilege against
self-incrimination and police custodial questioning").

															[ Footnote 11 ]

															As we explain infra at 496 U. S.
600 -601, for purposes of custodial interrogation, such a
question may be either express, as in this case, or else implied
through words or actions reasonably likely to elicit a
response.

															[ Footnote 12 ] See also United States v. Wade, 388 U.
S. 218 , 388 U. S.
222 -223 (1967) ("[T]o utter words purportedly uttered by
the robber [and dictated to the suspect by the police] was not
compulsion to utter statements of a testimonial' nature; [the
suspect] was required to use his voice as an identifying physical
characteristic, not to speak his guilt" because the words did not
reflect any facts or beliefs asserted by the suspect); United
States v. Dionisio, 410 U. S. 1 , 410 U. S. 7 (1973)
(where suspects were asked to create voice exemplars by reading
already-prepared transcripts, the "voice recordings were to be used
solely to measure the physical properties of the witnesses' voices,
not for the testimonial or communicative content of what was to be
said" because the content did not reflect any facts or beliefs
asserted by the suspects). [ Footnote 13 ]

															The Commonwealth's protest that it had no investigatory interest
in the actual date of Muniz's sixth birthday, see Tr. of
Oral Arg. 18, is inapposite. The critical point is that the
Commonwealth had an investigatory interest in Muniz's assertion of
belief that was communicated by his answer to the question. Putting
it another way, the Commonwealth may not have cared about the
correct answer, but it cared about Muniz's answer. The
incriminating inference stems from the then-existing contents of
Muniz's mind as evidenced by his assertion of his knowledge at that
time.

															This distinction is reflected in Estelle v. Smith, 451 U. S. 454 (1981), where we held that a defendant's answers to questions
during a psychiatric examination were testimonial in nature. The
psychiatrist asked a series of questions, some focusing on the
defendant's account of the crime. After analyzing both the
"statements [the defendant] made, and remarks he omitted," id. at 451 U. S. 464 ,
the psychiatrist made a prognosis as to the defendant's "future
dangerousness" and testified to this effect at his capital
sentencing hearing. The psychiatrist had no investigative interest
in whether the defendant's account of the crime and other
disclosures were either accurate or complete as a historical
matter; rather, he relied on the remarks -- both those made and
omitted -- to infer that the defendant would likely pose a threat
to society in the future because of his state of mind. We
nevertheless explained that the

															"Fifth Amendment privilege . . . is directly involved here
because the State used as evidence against [the defendant] the substance of his disclosures during the pretrial
psychiatric examination." Id. at 451 U. S.
464 -465 (emphasis added). The psychiatrist may have
presumed the defendant's remarks to be truthful for purposes of
drawing his inferences as to the defendant's state of mind, see
South Dakota v. Neville, 459 U. S. 553 , 459 U. S.
561 -562, n. 12 (1983), but that is true in Muniz's case
as well: the incriminating inference of mental confusion is based
on the premise that Muniz was responding truthfully to Officer
Hosterman's question when he stated that he did not then know the
date of his sixth birthday.

															[ Footnote 14 ]

															As amicus United States explains,

															"[r]ecognizing a 'booking exception' to Miranda does
not mean, of course, that any question asked during the booking
process falls within that exception. Without obtaining a waiver of
the suspect's Miranda rights, the police may not ask
questions, even during booking, that are designed to elicit
incriminatory admissions."

															Brief for United States as Amicus Curiae 13. See,
e.g., United States v. Avery, 717 F.2d 1020, 1024-1025 (CA6
1983); United States v. Mata-Abundiz, 717 F.2d 1277, 1280
(CA9 1983); United States v. Glen-Archila, 677 F.2d 809,
816, n. 18 (CA11 1982).

															[ Footnote 15 ]

															Most of Muniz's utterances were not clearly discernible, though
several of them suggested excuses as to why he could not perform
the physical tests under these circumstances.

															[ Footnote 16 ]

															This conclusion is in accord with that of many other state
courts, which have reasoned that standard sobriety tests measuring
reflexes, dexterity, and balance do not require the performance of
testimonial acts. See, e.g., Weatherford v. State, 286
Ark. 376, 692 S.W.2d
605 (1985); People v. Boudreau, 115 App.Div.2d 652,
496 N.Y.S.2d 489 (1985); Commonwealth v. Brennan, 386
Mass. 772, 438
N.E.2d 60 (1982); State v. Badon, 401 So. 2d
1178 (La.1981); State v. Arsenault, 115 N.H. 109, 336
A.2d 244 (1975). Muniz does not challenge the state court's
conclusion on this point, and therefore we have no occasion to
review it.

															[ Footnote 17 ]

															The two exceptions consist of Officer Hosterman's requests that
Muniz count aloud from one to nine while performing the
"walk-the-line" test and that he count aloud from one to thirty
while balancing during the "one leg stand" test. Muniz's counting
at the officer's request qualifies as a response to custodial
interrogation. However, as Muniz counted accurately (in Spanish)
for the duration of his performance on the "one leg stand" test
(though he did not complete it), his verbal response to this
instruction was not incriminating except to the extent that it
exhibited a tendency to slur words, which we have already explained
is a nontestimonial component of his response. See supra at 496 U. S.
590 -592. Muniz did not count during the "walk and turn"
test, and he does not argue that his failure to do so has any
independent incriminating significance. We therefore need not
decide today whether Muniz's counting (or not) itself was
"testimonial" within the meaning of the privilege.

															[ Footnote 18 ]

															We cannot credit the state court's contrary determination that
Muniz's utterances (both during this phase of the proceedings and
during the next when he was asked to provide a breath sample) were
compelled rather than voluntary. 377 Pa.Super. at 390, 547 A.2d at
423. The court did not explain how it reached this conclusion, nor
did it cite Innis or any other case defining custodial
interrogation.

															[ Footnote 19 ]

															Muniz does not and cannot challenge the introduction into
evidence of his refusal to submit to the breathalyzer test. In South Dakota v. Neville, 459 U. S. 553 (1983), we held that, since submission to a blood test could itself
be compelled, see Schmerber v. California, 384 U.
S. 757 (1966), a State's decision to permit a suspect to
refuse to take the test but then to comment upon that refusal at
trial did not "compel" the suspect to incriminate himself, and
hence did not violate the privilege. Neville, supra, 459
U.S. at 459 U. S.
562 -564. We see no reason to distinguish between
chemical blood tests and breathalyzer tests for these purposes. Cf. Schmerber, supra, 384 U.S. at 384 U. S.
765 -766, n. 9.

															[ Footnote 20 ]

															We noted in Schmerber that

															"there may be circumstances in which the pain, danger, or
severity of an operation [or other test seeking physical evidence]
would almost inevitably cause a person to prefer confession to
undergoing the 'search,' 384 U.S. at 384 U. S.
765 , n. 9, and in such cases,"

															"[i]f it wishes to compel persons to submit to such attempts to
discover evidence, the State may have to forgo the advantage of any
testimonial products of administering the test." Ibid. See also Neville, supra, 459 U.S. at 459 U. S. 563 ("Fifth Amendment may bar the use of testimony obtained when the
proffered alternative was to submit to a test so painful,
dangerous, or severe, or so violative of religious beliefs, that
almost inevitably a person would prefer confession'"). But
Muniz claims no such extraordinary circumstance here. [ Footnote 21 ] See n 18, supra. [ Footnote 22 ]

															The parties have not asked us to decide whether any error in
this case was harmless. The state court is free, of course, to
consider this question upon remand.

															Chief Justice REHNQUIST, with whom Justice WHITE, Justice
BLACKMUN and Justice STEVENS join, concurring in part, concurring
in the result in part, and dissenting in part.

															I join Parts I, II, III-A, and IV of the Court's opinion. In
addition, although I agree with the conclusion in Part III-C that
the seven "booking" questions should not be suppressed, I do so for
a reason different from that of Justice BRENNAN. I dissent from the
Court's conclusion that Muniz's response to the "sixth birthday
question" should have been suppressed.

															The Court holds that the sixth birthday question Muniz was asked
required a testimonial response, and that its admission at trial
therefore violated Muniz's privilege against compulsory
self-incrimination. The Court says that

															"[w]hen Officer Hosterman asked Muniz if he knew the date of his
sixth birthday and Muniz, for whatever reason, could not remember
or calculate that date, he was confronted with the trilemma
[ i.e. the 'trilemma' of 'truth, falsity, or silence,' see ante at 496 U. S. 597 . . . . Muniz
was left with the choice of incriminating himself by admitting that
he did not then know the date of his sixth birthday or answering
untruthfully by reporting a date that he did not then believe to be
accurate (an incorrect guess would be incriminating as well as
untruthful)." Ante at 496 U. S.
598 -599. As an assumption about human behavior, this
statement is wrong. Muniz would no more have felt compelled to
fabricate a false date than one who cannot read the letters on an
eye-chart feels compelled to fabricate false letters; nor does a
wrong guess call into question a speaker's veracity. The Court's
statement is also a flawed predicate on which to base its
conclusion that Muniz's answer to this question was "testimonial"
for purposes of the Fifth Amendment. Page 496 U. S. 607 The need for the use of the human voice does not automatically
make an answer testimonial, United States v. Wade, 388 U. S. 218 , 388 U. S.
222 -223 (1967), any more than does the fact that a
question calls for the exhibition of one's handwriting in written
characters. Gilbert v. California, 388 U.
S. 263 , 388 U. S.
266 -267 (1967). In Schmerber v. California, 384 U. S. 757 (1966), we held that the extraction and chemical analysis of a
blood sample involved no "shadow of testimonial compulsion upon or
enforced communication by the accused." Id. at 384 U. S. 765 .
All of these holdings were based on Justice Holmes' opinion in Holt v. United States, 218 U. S. 245 (1910), where he said for the Court that

															"the prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material." Id. at 218 U. S.
252 -253.

															The sixth birthday question here was an effort on the part of
the police to check how well Muniz was able to do a simple
mathematical exercise. Indeed, had the question related only to the
date of his birth, it presumably would have come under the "booking
exception" to Miranda v. Arizona, 384 U.
S. 436 (1966), to which the Court refers elsewhere in
its opinion. The Court holds in this very case that Muniz may be
required to perform a "horizontal gaze nystagmus" test, the "walk
and turn" test, and the "one leg stand" test, all of which are
designed to test a suspect's physical coordination. If the police
may require Muniz to use his body in order to demonstrate the level
of his physical coordination, there is no reason why they should
not be able to require him to speak or write in order to determine
his mental coordination. That was all that was sought here. Since
it was permissible for the police to extract and examine a sample
of Schmerber's blood to determine how much that part of his system
had been affected by alcohol, I see no reason why they may not
examine the functioning of Muniz's mental processes for the same
purpose. Page 496 U. S. 608 Surely, if it were relevant, a suspect might be asked to take an
eye examination in the course of which he might have to admit that
he could not read the letters on the third line of the chart. At
worst, he might utter a mistaken guess. Muniz likewise might have
attempted to guess the correct response to the sixth birthday
question instead of attempting to calculate the date or answer "I
don't know." But the potential for giving a bad guess does not
subject the suspect to the truth-falsity-silence predicament that
renders a response testimonial and, therefore, within the scope of
the Fifth Amendment privilege.

															For substantially the same reasons, Muniz's responses to the
videotaped "booking" questions were not testimonial and do not
warrant application of the privilege. Thus, it is unnecessary to
determine whether the questions fall within the "routine booking
question" exception to Miranda JUSTICE BRENNAN
recognizes.

															I would reverse in its entirety the judgment of the Superior
Court of Pennsylvania. But given the fact that five members of the
Court agree that Muniz's response to the sixth birthday question
should have been suppressed, I agree that the judgment of the
Superior Court should be vacated so that, on remand, the court may
consider whether admission of the response at trial was harmless
error.

															Justice MARSHALL, concurring in part and dissenting in part.

															I concur in Part III-B of the Court's opinion that the "sixth
birthday question" required a testimonial response from respondent
Muniz. For the reasons discussed below, see infra, at ___,
n. 1, that question constituted custodial interrogation. Because
the police did not apprise Muniz of his Miranda rights
before asking the question, his response should have been
suppressed.

															I disagree, however, with the plurality's recognition in Part
III-C of a "routine booking question" exception to Miranda. Moreover, even were such an exception
warranted, Page 496 U. S. 609 it should not extend to booking questions that the police should
know are reasonably likely to elicit incriminating responses.
Because the police in this case should have known that the seven
booking questions were reasonably likely to elicit incriminating
responses, and because those questions were not preceded by Miranda warnings, Muniz's testimonial responses should
have been suppressed.

															I dissent from the Court's holding in Part IV that Muniz's
testimonial statements in connection with the three sobriety tests
and the breathalyzer test were not the products of custodial
interrogation. The police should have known that the circumstances
in which they confronted Muniz, combined with the detailed
instructions and questions concerning the tests and the State's
Implied Consent Law, were reasonably likely to elicit an
incriminating response, and therefore constituted the "functional
equivalent" of express questioning. Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 301 (1980). Muniz's statements to the police in connection with these
tests thus should have been suppressed because he was not first
given the Miranda warnings.

															Finally, the officer's directions to Muniz to count aloud during
two of the sobriety tests sought testimonial responses, and Muniz's
responses were incriminating. Because Muniz was not informed of his Miranda rights prior to the tests, those responses also
should have been suppressed. I A The plurality would create yet another exception to Miranda
v. Arizona, 384 U. S. 436 (1966): the "routine booking question" exception. See also
Illinois v. Perkins, ante at 496 U. S. 292 (1990) (creating exception to Miranda for custodial
interrogation by an undercover police officer posing as the
suspect's fellow prison inmate). Such exceptions undermine Miranda's fundamental principle that the doctrine should
be clear so that it can be easily applied by both police and
courts. See Miranda, supra, 384 U.S. at 384 U. S.
441 -442; Page 496 U. S. 610 Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979); Perkins, ante, at 496 U. S.
308 -309 (MARSHALL, J., dissenting). The plurality's
position, were it adopted by a majority of the Court, would
necessitate difficult, time-consuming litigation over whether
particular questions asked during booking are "routine," whether
they are necessary to secure biographical information, whether that
information is itself necessary for recordkeeping purposes, and
whether the questions are -- despite their routine nature --
designed to elicit incriminating testimony. The far better course
would be to maintain the clarity of the doctrine by requiring
police to preface all direct questioning of a suspect with Miranda warnings if they want his responses to be
admissible at trial. B The plurality nonetheless asserts that Miranda does not
apply to express questioning designed to secure " biographical
data necessary to complete booking or pretrial services,'" ante at 496 U. S. 601 (citation omitted), so long as the questioning is not "`designed to
elicit incriminatory admissions,'" ante at 496 U. S. 602 ,
n. 14 (quoting Brief for United States as Amicus Curiae 13; citing United States v. Avery, 717 F.2d 1020,
1024-1025 (CA6 1983) (acknowledging that "[e]ven a relatively
innocuous series of questions may, in light of the factual
circumstances and the susceptibility of a particular suspect, be
reasonably likely to elicit an incriminating response"); United
States v. Mata-Abundiz, 717 F.2d 1277, 1280 (CA9 1983)
(holding that routine booking question exception does not apply if
"the questions are reasonably likely to elicit an incriminating
response in a particular situation"); United States v.
Glen-Archila, 677 F.2d 809, 816, n. 18 (CA11 1982) ("Even
questions that are usually routine must be proceeded [sic] by Miranda warnings if they are intended to produce answers
that are incriminating")). Even if a routine booking question
exception to Miranda were warranted, that exception should
not extend to any booking question Page 496 U. S. 611 that the police should know is reasonably likely to elicit an
incriminating response, cf. Innis, 446 U.S. at 446 U. S. 301 ,
regardless of whether the question is "designed" to elicit an
incriminating response. Although the police's intent to obtain an
incriminating response is relevant to this inquiry, the key
components of the analysis are the nature of the questioning, the
attendant circumstances, and the perceptions of the suspect. Cf. id. at 446 U. S. 301 ,
n. 7. Accordingly, Miranda warnings are required before
the police may engage in any questioning reasonably likely to
elicit an incriminating response.

															Here, the police should have known that the seven booking
questions -- regarding Muniz's name, address, height, weight, eye
color, date of birth, and age -- were reasonably likely to elicit
incriminating responses from a suspect whom the police believed to
be intoxicated. Cf. id. at 446 U. S. 302 ,
n. 8 ("Any knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion
might be an important factor in determining whether the police
should have known that their words or actions were reasonably
likely to elicit an incriminating response from the suspect").
Indeed, as the Court acknowledges, Muniz did in fact "stumbl[e]
over his address and age," ante at 496 U. S. 586 ;
more specifically, he was unable to give his address without
looking at his license and initially told police the wrong age.
Moreover, the very fact that, after a suspect has been arrested for
driving under the influence, the Pennsylvania police regularly
videotape the subsequent questioning strongly implies a purpose to
the interrogation other than "recordkeeping." The seven questions
in this case, then, do not fall within the routine booking question
exception even under the majority's standard. [ Footnote 1/1 ] Page 496 U. S. 612 C Although the plurality does not address this issue, the booking
questions sought "testimonial" responses for the same reason the
sixth birthday question did: because the content of the answers
would indicate Muniz's state of mind. Ante at 496 U. S.
598 -599, and n. 12. See also Estelle v. Smith, 451 U. S. 454 , 451 U. S.
464 -465 (1981). The booking questions, like the sixth
birthday question, required Muniz to (1) answer correctly,
indicating lucidity, (2) answer incorrectly, implying that his
mental faculties were impaired, or (3) state that he did not know
the answer, also indicating impairment. Muniz's initial incorrect
response to the question about his age and his inability to give
his address without looking at his license, like his inability to
answer the sixth birthday question, in fact gave rise to the
incriminating inference that his mental faculties were impaired.
Accordingly, because the police did not inform Muniz of his Miranda rights before asking the booking questions, his
responses should have been suppressed. II A The Court finds in Part IV of its opinion that Miranda is inapplicable to Muniz's statements made in connection with the
three sobriety tests and the breathalyzer examination because those
statements (which were undoubtedly testimonial) were not the
products of "custodial interrogation." In my view, however, the
circumstances of this case -- in particular, Muniz's apparent
intoxication -- rendered the officers' words and actions the
"functional equivalent" of express questioning Page 496 U. S. 613 because the police should have known that their conduct was
"reasonably likely to evoke an incriminating response." Innis,
supra, 446 U.S. at 446 U. S. 301 .
As the Court recounts ante at 496 U. S.
602 -604, Officer Hosterman instructed Muniz how to
perform the sobriety tests, inquired whether Muniz understood the
instructions, and then directed Muniz to perform the tests. Officer
Deyo later explained the breathalyzer examination and the nature of
the State's Implied Consent Law, and asked several times if Muniz
understood the Law and wanted to take the examination. Ante at 496 U. S. 604 .
Although these words and actions might not prompt most sober
persons to volunteer incriminating statements, Officers Hosterman
and Deyo had good reason to believe -- from the arresting officer's
observations, App. 13-19 (testimony of Officer Spotts), from
Muniz's failure of the three roadside sobriety tests, id. at 19, and from their own observations -- that Muniz was
intoxicated. The officers thus should have known that Muniz was
reasonably likely to have trouble understanding their instructions
and their explanation of the Implied Consent Law, and that he was
reasonably likely to indicate, in response to their questions, that
he did not understand the tests or the Law. Moreover, because Muniz
made several incriminating statements regarding his intoxication
during and after the roadside tests, id. at 20-21, the
police should have known that the same tests at the Booking Center
were reasonably likely to prompt similar incriminating
statements.

															The Court today, however, completely ignores Muniz's condition
and focuses solely on the nature of the officers' words and
actions. As the Court held in Innis, however, the focus in
the "functional equivalent" inquiry is on "the perceptions of the
suspect," not on the officers' conduct viewed in isolation. 446
U.S. at 446 U. S. 301 .
Moreover, the Innis Court emphasized that the officers' knowledge
of any "unusual susceptibility" of a suspect to a particular means
of eliciting information is relevant to the question whether they
should have known that their conduct was reasonably likely to
elicit Page 496 U. S. 614 an incriminating response. Id. at 446 U. S. 302 ,
n. 8; supra at 496 U. S.
610 -611. See also Arizona v. Mauro, 481 U. S. 520 , 481 U. S. 531 (1987) (STEVENS, J., dissenting) (police "interrogated" suspect by
allowing him to converse with his wife "at a time when they knew
[the conversation] was reasonably likely to produce an
incriminating statement"). Muniz's apparent intoxication, then, and
the police's knowledge of his statements during and after the
roadside tests compel the conclusion that the police should have
known that their words and actions were reasonably likely to elicit
an incriminating response. [ Footnote
1/2 ] Muniz's statements were thus the product of custodial
interrogation and should have been suppressed because Muniz was not
first given the Miranda warnings. B The Court concedes that Officer Hosterman's directions that
Muniz count aloud to 9 while performing the "walk-the-line" test
and to 30 while performing the "one-leg-stand" test constituted
custodial interrogation. Ante at 496 U. S. 603 ,
and n. 17. Also indisputable is the testimonial nature of the
responses sought by those directions; the content of Muniz's
counting, just like his answers to the sixth birthday and the
booking questions, would provide the basis for an inference
regarding his state of mind. Cf. ante at 496 U. S. 599 ; supra at 496 U. S. 612 .
The Court finds the admission at trial of Muniz's responses
permissible, however, because they were not incriminating "except
to the extent [they] exhibited a tendency to slur words, Page 496 U. S. 615 which [the Court already found to be] nontestimonial
[evidence]." Ante at 496 U. S. 603 ,
n. 17. The Court's conclusion is wrong for two reasons. First, as a
factual matter, Muniz's responses were incriminating for a
reason other than his apparent slurring. Muniz did not count at all
during the walk-the-line test, supporting the inference that he was
unable to do so. [ Footnote 1/3 ]
And, contrary to the Court's assertion, ibid. during the
one-leg-stand test, Muniz incorrectly counted in Spanish from one
to six, skipping the number two. Even if Muniz had not skipped
"two," his failure to complete the count was incriminating in
itself.

															Second, and more importantly, Muniz's responses would have been
"incriminating" for purposes of Miranda even if he had
fully and accurately counted aloud during the two tests. As the
Court stated in Innis, "[b]y incriminating response'
we refer to any response -- whether inculpatory or exculpatory --
that the prosecution may seek to introduce at trial." 446
U.S. at 446 U. S. 301 ,
n. 5. See also Miranda, 384 U.S. at 384 U. S.
476 -477 ("The privilege against self-incrimination
protects the individual from being compelled to incriminate himself
in any manner; it does not distinguish degrees of incrimination.
Similarly, for precisely the same reason, no distinction may be
drawn between inculpatory statements and statements alleged to be
merely `exculpatory'"). Thus, any response by Page 496 U. S. 616 Muniz that the prosecution sought to use against him was
incriminating under Miranda. That the majority thinks
Muniz's responses were incriminating only because of his slurring
is therefore irrelevant. Because Muniz did not receive the Miranda warnings, then, his responses should have been
suppressed. III All of Muniz's responses during the videotaped session were
prompted by questions that sought testimonial answers during the
course of custodial interrogation. Because the police did not read
Muniz the Miranda warnings before he gave those responses,
the responses should have been suppressed. I would therefore affirm
the judgment of the state court. [ Footnote 1/4 ]

															[ Footnote 1/1 ]

															The sixth birthday question also clearly constituted custodial
interrogation because it was a form of "express questioning." Rhode Island v. Innis, 446 U. S. 291 , 446 U. S.
300 -301 (1980). Furthermore, that question would not
fall within the plurality's proposed routine booking question
exception. The question serves no apparent recordkeeping need, as
the police already possessed Muniz's date of birth. The absence of
any administrative need for the question, moreover, suggests that
the question was designed to obtain an incriminating response.
Regardless of any administrative need for the question and
regardless of the officer's intent, Miranda warnings were
required because the police should have known that the question was
reasonably likely to elicit an incriminating response. Supra, at 496 U. S.
610 -611.

															[ Footnote 1/2 ]

															An additional factor strongly suggests that the police expected
Muniz to make incriminating statements. Pursuant to their routine
in such cases, App. 28-29, the police allotted 20 minutes for the
three sobriety tests and for "observation." Because Muniz finished
the tests in approximately 6 minutes, the police required him to
wait another 14 minutes before they asked him to submit to the
breathalyzer examination. Given the absence of any apparent
technical or administrative reason for the delay and the stated
purpose of "observing" Muniz, the delay appears to have been
designed in part to give Muniz the opportunity to make
incriminating statements.

															[ Footnote 1/3 ]

															The Commonwealth could not use Muniz's failure to count against
him regardless of whether his silence during the walk-the-line test
was itself testimonial in those circumstances. Cf. ante at 496 U. S. 603 ,
n. 17. A defendant's silence in response to police questioning is
not admissible at trial, even if the silence is not, in the
particular circumstances, a form of communicative conduct. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 468 ,
n. 37 (1966) ("[I]t is impermissible to penalize an individual for
exercising his Fifth Amendment privilege when he is under police
custodial interrogation. The prosecution may not, therefore, use at
trial the fact that he stood mute or claimed his privilege in the
face of accusation"). Cf. Griffin v. California, 380 U. S. 609 , 380 U. S. 615 (1965) ("[T]he Fifth Amendment . . . forbids either comment by the
prosecution on the accused's silence or instructions by the court
that such silence is evidence of guilt").

															[ Footnote 1/4 ]

															I continue to have serious reservations about the Court's
limitation of the Fifth Amendment privilege to "testimonial"
evidence. See United States v. Mara, 410 U. S.
19 , 410 U. S. 32 -38
(1973) (MARSHALL, J., dissenting). I believe that privilege extends
to any evidence that a person is compelled to furnish against
himself. Id. at 410 U. S. 33 -35.
At the very least, the privilege includes evidence that can be
obtained only through the person's affirmative cooperation. Id. at 410 U. S. 36 -37.
Of course, a person's refusal to incriminate himself also cannot be
used against him. See 496
U.S. 582 fn1/3|>n. 3, supra. Muniz's performance of
the sobriety tests and his refusal to take the breathalyzer
examination are thus protected by the Fifth Amendment under this
interpretation. But cf. ante at 496 U. S.
604 -605, n. 19. Because Muniz does not challenge the
admission of the video portion of the videotape showing the
sobriety tests or of his refusal to take the breathalyzer
examination, however, those issues are not before this Court.

Summary:
Here is a summary of the Supreme Court case Pennsylvania v. Muniz (1990):

The case concerned a man, Muniz, who was arrested for driving under the influence and taken to a booking center without being read his Miranda rights. He was told his actions and voice were being videotaped and was asked several questions, including his name, address, and date of birth. He also performed physical sobriety tests and was asked to submit to a breathalyzer test, which he refused. The audio and video portions of the tape were admitted as evidence at his trial, and he was convicted.

The Supreme Court considered whether Muniz's answers to the questions and his verbalizations during the sobriety tests were testimonial and should have been suppressed under the Fifth Amendment's Self-Incrimination Clause.

The Court held that only Muniz's response to the question about his sixth birthday constituted a testimonial response to custodial interrogation under the Fifth Amendment. The Court reasoned that Muniz's slurred speech and lack of muscular coordination revealed by his responses were nontestimonial components of his responses. However, the Court also noted that the police should have known that the question about his sixth birthday was reasonably likely to elicit an incriminating response, and thus, Miranda warnings were required for that question.

The case discusses the distinction between testimonial and nontestimonial evidence and the protection provided by the Fifth Amendment's Self-Incrimination Clause.