At our training seminars we are often asked if an inmate has to be advised of their Miranda rights if they are being questions about a commission of a crime. Several years ago the court in Commonwealth v. Larkin 429 Mass. 426, 708 N.E. 2d 674 (1999) found that when certain conditions are met prisoners are not required to be advised of their Miranda rights. In upholding the incriminating statements, the court found that the inmate was "not in control of the troopers who were interrogating him." Some of the factors the court considered in reaching this conclusion were: The interview addressed an issue unrelated to the one for which the inmate was incarcerated; the interview was conducted in a room normally used for attorney conferences an not in the inmate's cell; the inmate was told that the interview was voluntary and signed a statement consenting to be voluntarily interviewed; and, the inmate was clearly told that he could end the interview at any time by simply signaling the guard outside the door. Most recently in a case decided November 30, 2006 the District of Columbia Court of Appeals reached the same conclusion. In the case of Lindsey v. US Nos. 99-CF-1295, 99-CF-1670, 03-CO-1283 and 03-CO-1286 the court that "as a matter of first impression, first defendant, who was a prisoner when he confessed to killing the victim, was not in custody for Miranda purposes at time of confession.

In their opinion the court said:

"When a suspect is incarcerated on other charges at the time of interrogation, the Miranda "in custody" analysis is somewhat different from the classic interrogation of the suspect at the police station. Although we have recognized that there is a question about whether an inmate is " 'in custody' for Miranda purposes merely because of his status as a prisoner," Smith v. United States, 586 A.2d 684, 685 (D.C.1991), we have never decided this issue.

Lindsey argues that Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), established that prisoners are always considered in custody under Miranda, and that Mathis thus controls the outcome of this appeal. We do not agree. In Mathis, the Supreme Court rejected the government's argument that Miranda applies "only to questioning one who is 'in custody' in connection with the very case under investigation." Id. at 4 (emphasis added). The Court found "nothing in the Miranda opinion which calls for a curtailment of the warnings to be given [to] persons under interrogation by officers based on the reason why the person is in custody." Id. at 4-5. This holding falls short of establishing that Miranda warnings must be given every time a prisoner is questioned regarding an ongoing criminal investigation or that a prisoner is per se in custody for Miranda purposes.

In fact, the interpretation of Mathis espoused by Lindsey in this case has been repeatedly rejected by other state and federal courts. For example, in Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978), the Ninth Circuit held:

In the prison situation, [custody] necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement. Thus, restriction is a relative concept, one not determined exclusively by lack of freedom to leave. Rather, we look to some act which places further limitations on the prisoner.

*5 Id. at 428. In so holding, Cervantes identified four factors that are relevant to the determination of whether a prisoner is "in custody" for Miranda purposes: "[1] the language used to summon the individual, [2] the physical surroundings of the interrogation, [3] the extent to which he is confronted with evidence of his guilt, and [4] the additional pressure exerted to detain him." Id. at 428. Most jurisdictions that have considered this issue have adopted standards similar to the one established in Cervantes. FN3 Because we find the rationale of Cervantes and its progeny to be persuasive and the factors considered by those courts to be significant in determining whether an inmate being questioned is in custody for Miranda purposes, we now apply them to the facts of this case.

Application of the Cervantes factors to this case leads us to conclude that Lindsey was not in custody at the time of his prison confession. With respect to the first factor-the words used to summon him-Lindsey was paged to the administration building, told that he had visitors and was led by a prison employee to the conference room where Heara and Brigidini were waiting. The prison employee then left the area. Thus, the record shows that Lindsey was summoned to the meeting in the same way that all inmates are called to meet with visitors, and, therefore, there was nothing unusual that occurred in this case from which we could conclude that he was subjected to any greater restraint on his movement than any other inmate.

With respect to the second factor, the physical surroundings of the interrogation, the interview took place in a minimum security prison where Lindsey was free to move around with almost no restrictions. He was permitted to leave the facility daily for a work release program. The conference room where the interview took place had a window that faced outside, a long table with several chairs and the door to the room was left unlocked. Importantly, the agents instructed Lindsey that he was not under arrest, and that he did not have to speak with them. And the trial court made a specific factual finding that he was free to leave the interrogation at any time.

The third factor is the extent to which Lindsey was confronted with evidence of his guilt. The agents explained that they were visiting him regarding Johnson's murder and provided him with a detailed recounting of the events before, during and after the murder, including Gayles' involvement and the motive for the murder. While they told him that it would be better if he cooperated, there was no discussion about his having an obligation to cooperate.

The fourth factor we consider is whether there was any additional pressure used to detain Lindsey or whether more restrictions were put upon him. The record shows there was no such effort, nor any "change in the surroundings ∑∑∑ which result[ed] in an added imposition on his freedom of movement." Cervantes, supra, 589 F.2d at 428. Not only was he not shackled or restrained in any way, no physical force whatsoever was used to get him to speak with the agents, nor to prevent him from terminating the interview and leaving the conference room. Thus, there is no reason to conclude that he perceived that he was in custody or that he was not free to leave if he wished, nor that any reasonable person in his position would have perceived that he was not free to leave.

*6 Based on these factors, we are satisfied that there was no greater restriction placed on Lindsey's freedom of movement as a result of his interview than was normal under the circumstances of his incarceration and therefore, for purposes of Miranda, he was not in custody. Thus, the officers were not required to give him the Miranda warnings, and the trial court did not err in finding that his statement was admissible on these grounds."