“You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be appointed at no cost.”
TV and movies have drilled those warnings, known as the Miranda warnings, into our collective conscious. Yet like so many things, the media’s version does not reflect the real world. Today’s post is about the origin of the Miranda warnings, when they’re required, their effect on a legal matter, and most importantly, how to use Miranda to protect yourself.
Miranda v. Arizona
As I explain further below, Miranda doesn’t deal with a defendant being given rights. It doesn’t even revolve around a defendant being made aware of their rights, although that’s a bit closer. What Miranda truly cares about is the Fifth Amendment and the admissibility of confessions. Miranda cares about making sure only reliable, reasoned confessions are permitted in court.
You can read the full opinion here, but according to majority author Chief Justice Warren, Miranda dealt with “the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.” This simple-seeming issue revolved around very fundamental forces.
The first of those are our constitutional rights, specifically those granted to someone charged with a crime. The Fifth Amendment, the prohibition on compelled self-incrimination, was a response to a more barbaric time where people were tortured until they confessed to anything and everything. The Fifth Amendment, like almost all the others, can be waived. But that waiver must be knowing, intelligent, and voluntary (KIV), or it is (theoretically) ineffective.
The other force at play was the rights of the victims and police and prosecutors, specifically the executive power that allows the government to gather evidence and prosecute people charged with crimes.
The Court led off with a historical look at interrogation, (described as “inquisitional”) the colloquial “third degree,” and then the more modern psychological tactics of merely of establishing a false rapport. The Court noted the burden of custodial interrogation on a suspect, a process that “trades on the weakness of individuals.”
The exact case was actually a collection of similar issues, but for today’s post we’ll focus on the named party. Ernesto Miranda was accused of kidnapping and rape. He was a known suspect, and when pickup police put him in “Interrogation Room No. 2.” Eventually Mr. Miranda signed a full confession. At the top of the confession sheet was a preprinted block, that Mr. Miranda signed, that said Mr. Miranda was aware of his rights and KIV waived them.
At trial the confession was admitted, over the objections of defense counsel. Mr. Miranda was convicted and received 20-30 years.
The Supreme Court reversed. The Court held just because Mr. Miranda had signed a paper saying he KIV waived his rights, there was no evidence he was actually apprised of them. In other words, you could only effectively waive rights if you knew those rights consisted of. “For those unaware of the privilege, the warning is needed simply to make them aware of it — the threshold requirement for an intelligent decision as to its exercise.”
This holding also applied to the Fifth Amendment’s corollary: the Sixth Amendment. This is the right granting an attorney to whoever desires one during criminal matters. The right to an attorney is a very important one in these situations because it helps ensure a confession is KIV, i.e. the person understands the full nature of the proceedings against them. Having an advocate in these situations is crucial to explain the proceedings and make informed decisions.
Thus with little variation, the Court outlined the precise formula we hear today. The language used was taken from older cases, and interestingly, codified in the FBI manual for custodial interrogation. The Miranda case made FBI procedures applicable to law enforcement across the nation, which is as good a model as any to emulate.
I was inspired to write this when a friend asked if I saw a lot of cases get thrown out because someone wasn’t read their rights. I told him 1) being trained to Mirandize someone is Police Academy 101, so you don’t see many cops screwing that up, and 2) even if they do mess it up, it’s rare that a case gets completely tossed because of it.
Since Miranda is about confessions, it makes sense the Miranda warnings only apply when confession is relevant. That’s not as often as you might think. Certainly confessions are relevant to police work, when e.g. the police have evidence pointing towards someone, but not enough to get a conviction.
But sometimes a confession is irrelevant. If the police actually see someone tagging a wall, their personal observations are plenty good enough for a conviction. They probably will try to get a confession anyway, because why not, but even if the person asks for a lawyer in his first breath he’s probably screwed.
This all leads to the second point, which is the remedy for Miranda errors. Again, since we’re dealing with confessions, the remedy is simple: No Miranda, no confession. If the suspect wasn’t given Miranda, and if there was custodial interrogation, and if the suspect’s confession tied the whole case together, then sure the person might walk. But those are big ifs, and while it happens, it’s pretty rare in this day and age.
Believe it or not, the real fight in the courts is not whether Miranda was given, but when. We can expect the police to deliver the language correctly. All police carry a little laminated card in their wallet. But the whole crux of the Miranda case, and the Miranda warnings, is a response to custodial interrogation.
The fight revolves precisely when the person is no longer free to leave and/or when they are being questioned. This can be a complex issue so I’ll give some examples.
If an officer is walking down the street and a person comes up and confesses to robbing a bank, that confession is admissible. The person voluntarily went up to the officer and spilled his guts, with no prodding whatsoever.
If a person is cuffed to a chair at the station and grilled on a bank robbery, Miranda certainly comes into play. The police are welcome to ask whatever they want, but if they want the answers to be read to a jury, there better be Miranda warnings first.
What about someone cuffed in the back of a cruiser on the way to the station? This is a little trickier because while the person is in custody, they are not being interrogated. If the police are completely silent and the suspect wants to confess on his own initiative, it’s probably admissible. But the police better be sure they’re quiet, because courts can construe a dialogue as subtle interrogation. Which is why it’s standard practice to give Miranda even if no interrogation will take place, just to avoid the problem.
What about being stopped by the police? Another complex area. I went over Terry stops here, but the short version is that it depends on the length and purpose of the stop. A quick license check on the side of the road for example, does not rise to an arrest and thus does not trigger Miranda.
Similarly, if a person was detained but is subsequently free to go, they are not in custody and thus not subject to Miranda protections. If you are stopped on the side of the road and the matter is complete, but you stick around to chat, your statements can and will be used against you.
Of course all this comes back to the point I continually make: when you’re dealing with the police, stop talking. Sometimes confessions can be suppressed, but sometimes they can’t. The best practice is to avoid making statements in the first place. Your Fifth Amendment rights exist whether you’re apprised of them or not. When you are the subject of a criminal investigation, you never have to engage with the police, and you almost never should.
As I’ve explained, Miranda warnings exist so a person can be KIV in choosing whether to waive their Fifth and Sixth Amendment privileges. An important aspect of this is that interrogation must cease when someone said they’re going to assert their Fifth Amendment rights. And the police must assist in getting someone an attorney if the person asserts they want one.
One would think that a suspect, usually an unsophisticated or naïve party, would be given the benefit of the doubt on a waiver of constitutional rights. After all, unlike attorneys or judge or police, the average interrogated person has not studied the minutia of confession law.
And yet, you would be wrong. Any statements made by a suspect are almost always construed against the speaker. An assertion of Miranda requires an unequivocal statement of invoking your rights. A waiver of Miranda, on the other hand, is everything else.
The Court recently confronted this issue in Berguis v. Thompkins. The Court held that until the police are told different by invoking Miranda, the police may continue an interrogation. In other words, a person must unequivocally state “I will make no statements” before the police must stop interrogation. The dissent thought this was problematic for a number of reasons, which I agree with.
First, requiring someone to verbalize a desire not to talk is somewhat absurd. Secondly, as I discussed above, the dynamics here are unbelievably slanted. Most people do not spend much time withstanding interrogation, while police literally administer interrogation for a living. Further, any individual officer can take a break and have a colleague take over. They’re allowed to use the bathroom without asking permission. They’re allowed to withhold information. They’re allowed to lie. The police are absolutely holding all the cards, and all the suspect has is Miranda. I don’t like any holding that widens the gap even further.
But past all that, the requirement of making an assertive statement is not necessarily natural to a person. We’re trained at a very young age to respect authority, especially police. While someone may be able to decline to give a confession, or request an attorney, Berguis requires something above a mere request or indecisive statement. Examples?
These statements are all ineffective at invoking rights as far as Miranda jurisprudence is concerned:
“I think I should stop talking.”
“I think I need a lawyer.”
“Do you think I should get an attorney?”
“Should I shut up?”
“Would an attorney be helpful here?”
“I don’t have to keep talking, right?”
As I said, one of the crucial aspects of asserting rights is a break from the interrogation. Police must stop trying to elicit statements once rights are correctly invoked. But if they’re invoked incorrectly like the examples above, the police can keep right on interrogating you. And they have no duty to secure you an attorney either. Everyone in the world knows what those statements mean, but if the person doesn’t use the correct language, they don’t get what they’re looking for.
A somewhat insidious aspect of the holding is the wide brush it paints people with. For personal or cultural reasons, some people are not drawn to make the unequivocal, assertive statements Berguis required.
In law school, a professor of mine, Janet Ainsworth, wrote a fascinating article on this phenomenon, which you can read here. Professor Ainsworth argues, and I agree, that legally naïve people are not proficient with the language needed to achieve their desired outcome. In other words, while someone may want to assert their rights, they don’t know the secret code to actually execute it.
Professor Ainsworth also argued that, culturally, women are taught at an early age to use less assertive language. Both genders may have the same motivation in a given situation, but only a “masculine” use of language will achieve it. This is probably true, and I think it could be expanded to other demographics, e.g. age or ethnicity. I’ll leave it as an exercise to the reader to see whether their communication style would be effective in asserting Miranda. Regardless, to be sufficient, the statements must be assertive and unequivocal. These statements are effective:
“I will make no statements.”
“I have nothing to say.”
“I am asserting my Fifth Amendment privilege.”
“I want a lawyer.”
“Please bring me a phone. I will be calling my attorney.”
Talk like that and the police will know they’re dealing with a sophisticated party. That’s a good thing.
Modern Miranda requirements are a safeguard against excessive, unfettered police interrogation. History is rife with examples of injustice when law enforcement can extract a confession through any means.
But Miranda is a not a catch-all. You need to be an active participant, asserting your rights and not making a bad situation worse. Confessing, trying to explain away the situation, is a common inclination, but it is not in your best interest. Listen to the Miranda warnings. The warnings exist for a very good reason, and you’re well served by following them. Your chances of ending with a good result go way up if you unequivocally assert your rights, stay quiet, and wait for your attorney to show up.
Epilogue: Whatever happened to Ernesto Miranda?
After Mr. Miranda had his conviction reversed, the State tried him again, this time without the faulty confession. He was again convicted and served one third of his sentence before being let out on parole. Mr. Miranda was later arrested for possession of a gun in violation of his parole and sent back to prison for another year.
After he got out, Mr. Miranda spent time generally drinking, gambling, and working odd jobs. Mr. Miranda would occasionally get into trouble with the law, but he also sold autographed Miranda cards to people, including the police, for $1.50.
On January 31, 1976, at the age of 34, Mr. Miranda was stabbed to death during a card game. A suspect was apprehended, and after being given the Miranda warnings, declined to give a statement. Because the police had no evidence and no confession, the charges were later dropped. To this day Mr. Miranda’s murder remains unsolved.