Miranda Warnings (Rights) Exposing the Myths

If you are a fan of shows such as Law and Order, then you are familiar with the following:

You have the right to remain silent.

If you give up the right to remain silent, anything you say can and will be used against you in a court of law.

You have the right to speak with an attorney and have one present during questioning if you so desire.

If you cannot afford to hire an attorney, one will be appointed to represent you and be present during questioning if you so desire.

We hear this right after the detective tells the perp he is under arrest and as the perp is being handcuffed in his home with Mozart playing on the guy’s stereo system. Then one of the detectives say, “Where you’re going, the only classical music you’re gonna hear is from the Rikers Inmate Orchestra. The flatulence of Bubba, in the cell next to yours, I hear, takes up the entire wind section.” Da Dunk!! (sorry, don’t really know how to properly pronounce that sound effect).

So, how close to reality is this scene? I can tell you one thing–I have never known any detective that was so witty and ready with the quips all the time as the detectives you see on investigative shows. It’s done for drama and so you don’t nod off as they go to the next scene or opening credits. How about the events leading up to and during the real reading of the Miranda Warnings (some call it Miranda Rights)? Is what we watch on television really that which happens in real life?

In this post, I am going to expose some false beliefs of the Miranda Warnings so that you will be more informed if, unfortunately, they get read to you. But first, where did the Miranda Warnings originate?

On March 2, 1963, a Phoenix 18 year old woman reported to police that she was abducted, taken out in the desert and raped. When the police decided to polygraph her due to her story sounding doubtful, the results came back inconclusive. However, when they tracked down Ernesto Miranda with a license plate similar to the one thought to be the offender’s, they brought him into the station. The woman could not pick him out of a lineup, but they sat him down anyway and interrogated him. They eventually came out with a weak confession. He was appointed an attorney, but the attorney did not put up much of a fight in court. Ernesto Miranda was convicted and sent to prison. His complaint was he did not know he could keep silent while being interrogated.

The ACLU took up the appeal and it went to the US Supreme Court under the title Miranda v.Arizona where Miranda recanted his confession. On June 13, 1966, the conviction was overturned and the US Supreme Court ruling compelled all law enforcement to advise those arrested of the right to silence and the right to an attorney before they interrogate them. On October of the same year, Ernesto Miranda was retried and he was found guilty. He was in Arizona State Penitentiary until 1972. On January 1976, he was stabbed to death in a bar restroom after a game of poker. That was a brief summary of its origin. Now let’s look at the beliefs that the public may have concerning the Miranda Warnings that are, in fact, false.

Myth #1–Anytime a police officer arrests someone, he or she must read them their Miranda rights.

Would it shock some of you that at least half of the individuals I arrested in my 20 year career as a police officer I DID NOT read them or quote them their Miranda Warnings? Oh, the horror!!! Bad cop, no doughnut!!

Miranda v. Arizona made it perfectly clear that two qualifications need to exist before officers are mandated to advise the arrested party of their Miranda Rights:

1. Custody
2. Interrogation

These two must be occurring in the encounter or there is no mandate for Miranda Warnings. So, for instance, if I arrest someone (custody), and I wish to speak to them about the crime they allegedly committed (interrogation), I would read them their Miranda Rights, make sure that they understood them and are voluntarily waiving those rights. But let’s say, I arrested someone for public intoxication. If that’s the only charge, I really don’t need to talk to them to get anymore evidence. I mean, here he is staggering down the road, smelling like a brewery, blood shot eyes, and the speech can be so slurred sometimes interrogating him or her would be fruitless because either they wouldn’t understand my questions or I couldn’t understand their speech. And then you have the occasional barfing in the back seat of my cruiser. What more do I need? So, I would not advise that individual of their Miranda Warnings. It is unnecessary.

Other crimes, such as those I caught in the middle of the commission of the behavior, a bench warrant like Failure to Appear (I don’t need to get the reason why they didn’t show up in court. That’s the judge’s job.) or warrants from other jurisdictions where I had no involvement in the investigation, are examples that do not require the reading of Miranda. Those would be situations where I had custody, but did not interrogate the one arrested.

The flip side is when you interrogate someone but they are not in custody. Some of these situations are delicate because the whole time you are questioning a person of interest, they must feel, or most people in the same situation must feel, that they can leave at any time. If the investigator makes them feel that they cannot leave, then it gets into a custody situation where the reading of the Miranda Warnings is required.

(EDIT) I appreciate Gary who commented below and made me look at my statement. Of course, brief detainments such as a Terry stop or even a traffic stop do not require the need for Miranda. When I stated that the suspect must feel they can leave at any time, what I meant to say was that when a suspect is being interrogated by the police in such a way that he is not able to leave and will probably be arrested, the officer goes into that fine gray line from detainment interview into custodial interrogation. Sorry for my misstatement and thanks to Gary for the correction.

Sometimes the questioning is in the home. It must explained to the individual that at any time during the questioning they have the right to stop answering questions and ask the investigators to leave the home.

There is another situation where I have questioned a suspect for 2 1/2 hours concerning his involvement in the crime, having the probable cause of his involvement even before I interrogated him, and never once read him his Miranda Warnings. It was because I had called him on his phone. I asked some personal information questions to secure his identity, and then I grilled him. No need to read his Miranda Warnings because there was no possible way for him to be in my custody. I didn’t even know where he was at the time. He gave a solid confession to his involvement that, when presented, held up in court. If at any time he did not want to speak with me, all he had to do is tell me not to call him anymore (which I would be legally bound to comply with) and hang up. He voluntarily held the phone to his ear and answered all of my questions. No custody and no reading Miranda Rights.

Myth #2–You must read the Miranda Rights to someone at the exact time he or she is being arrested.

Once again I go to my favorite show where it seems no one gets arrested without the police officer or detective giving them their Miranda Warnings. It justifies what the detective is doing behind the guys back. Oh, so he’s cuffing him because I can hear him say, “You have the right to remain silent…” Most believe one cannot be done without the other. They go hand in glove. However, the truth is that there have been those in custody that were not officially under arrest. And, as I said before, there were those under arrest, but were never advised of their Miranda Warnings.

Actually, during most arrests, you will not be advised of your Miranda Warnings until you go down to the station where a police officer or a detective will question you. FULL WARNING: At this time, if you have been nodding off reading this long post, you need to pay attention. Go get some coffee or slap cold water on your face. Here goes: If you, God forbid, are ever arrested and placed into the back seat of the vehicle, even though your Miranda Warnings have not been given to you, things you say in the cruiser are probably being recorded by the dash or body cam and are admissible in court as evidence against you. The officer cannot ask you questions concerning the crime or make a statement to you that would lure you into giving a confession, such as, “I cannot believe you did what you did back there. That’s incredible!” If he does, whatever you said as a result of the statement the police gave you should be thrown out of court.

However, the officer can talk to you about the weather or sports, something like that. But, if you make the statement without the prompting of the officer, such as, “That was a stupid thing to do. I know I shouldn’t have robbed that convenience store”, that, my friend, is what the legal community calls a “spontaneous utterance”, and that is admissible all day in court as your confession. Oh, the investigators will want to get you to the station, read you the Miranda Warnings and get you to elaborate, but your goose is already cooked ready for Thanksgiving. You might as well cancel your holiday plans while you’re at it, because you are going to be in prison eating processed turkey that came out of a can.

Sometimes the detectives will tell the officers not to read them their Miranda Warnings because they want to handle all of the questioning, which is perfectly legal. So, just be careful what you say in the cruiser if you think by remaining silent is the way to go.

Myth #3–I was told by the officer I had the right to remain silent, so I don’t have to say a d%#& thing!

Where this is mostly true, especially when it comes to the particulars of the crime you are accused of, there are a couple of things you must tell the police officer. When the officer arrested you, he did a thorough search (hopefully) and was able to find your wallet and get your name and address, along with your license number where he can run it to get your social security number. All is well, keep your lips locked and enjoy your stay at the city’s deluxe accommodations. However, if you do not have your identification on you and the police officer does not know who you are, they will ask you for your name and address. With most local people, they can look up on their computer with just that information and get all they need. So this is not the time to affirm your right to silence.You may think, “Wow, if they don’t know who I am, they can’t charge me, can they?” If you are resilient and stubborn enough to stick to your guns on this, let me tell you what will take place:

You will be taken to a magistrate or a judge and they will book you under John or Jane Doe and give you sort of a serial number. If you refuse to be fingerprinted, you will be placed in a cell and you WILL stay in jail until your identity is established. All the while you are cooling your heals the officer is still at work attempting to identify you. He will utilize mugshot books, he will contact jurisdictions around him, go to places where he thinks you’ve been and so on. If it comes to it, he will have one of the correctional guards to keep an eye on you. Once you have put your hand down on a smooth surface or you have discarded the paper cup you drank from, DNA evidence will be collected along with possible fingerprints. This can legally be done without a search warrant. Chances are, you will never know this was done until the officer booking you will come up to you and say, “Hello John Smith” or whatever your real name is. Surprise !! However your best hope is that the police officer secures your identity before you spend more time in jail than what the crime calls for. Oh, and for the officer’s troubles, you will be looking at an obstruction charge as well.

Myth#3–If you give up your right to remain silent, anything you say can and will be used against you in a court of law.

Wait a minute. Isn’t that word for word what the Miranda Warning says? Jonah, why are you saying it is a myth? Think about it. This means that anything you say can and will be used against you in a court of law. Anything? Really?

So, when you talk to the officer about, say, the hot weather we are having, does the officer go into court and proclaim to the judge, ” Your honor, based on the statement that he made to me that proved his disdain for this weather, I make a motion for him to be held in contempt of climate!!” Or maybe you’re talking to the officer about sports and you tell the officer you are a Cowboys fan. To be held against you in a court of law is unlikely. However, it will probably be held against you in the court of public opinion and good sense. (Please, I’m joking. I’m a Cowboys fan myself. No angry emails!!)

It is, for this reason, when I began my career with my police department, they had already changed their policy in the Miranda Warnings sheet to reflect the word “may” in the place of “can and will”. It is just more accurate.

Another thing that makes the “can and will be used against you” not true is a thing called exculpatory evidence. You may reveal a name of a witness that will support your alibi, or a receipt from a restaurant that shows you were there and not at the crime scene when the crime occurred. . The police will definitely follow up with the restaurant, gas station, or store that you have a receipt from and corroborate your defense and speak to your alibi individual. But how can that be used against you? Incidentally, the prosecutor of many a jurisdiction gets himself into hot water when he holds on to exculpatory evidence without providing it to the defense. They have to make it available to the defense. It’s the law. This evidence will not be held against you, but will help defend you. So the word “may” is appropriate.

Myth #4–During my interrogation by the police, if I demand an attorney, the police must either appoint me an attorney or provide a phone to call an attorney right there and then.

Many think that it is law enforcement’s responsibility to get up, call the public defender’s office at two in the morning, wait for them to get there so that they can continue with the interrogation. This comes again from Hollywood. Or how about that the investigators have to avail one phone call at the station. No they don’t. What will happen if you affirm your right to an attorney, they will put their pens in their shirt pocket, close up their binders and stand up. They must stop questioning you at that point. They will then either place cuffs on you, or if they do not have sufficient probable cause, they will release you. That’s it.

You will most likely get your one phone call (actually now that I think about it, it’s two phone calls in Suffolk) down at the booking room of the jail if you are arrested and booked (At least that is the way it is in VA. Your locality may have a different procedure). If you need a public defender, the judge will appoint one for you at your arraignment. If you can hire an attorney, you can use one of your phone calls for that. If you can’t make bail, your attorney will meet with you down at the jail. Don’t expect him or her to jump up right there and then to rush out to you. He will probably make an appointment to see you later in the week.

Myth #5–It doesn’t matter how it comes out, if I say the word attorney or lawyer in any way, the investigators must stop the questioning.

It’s not that simple. Let me give you some examples of times where the word attorney or lawyer has been spoken by the suspect and the investigators were not required to stop the interrogation:

1. I was told by a family member that I shouldn’t talk with you and that I should get an attorney.
2. Officer, do you think I should get a lawyer?
3. I think I should talk with an attorney.
4. I probably need an attorney.

These responses all have one thing in common: The intention of the suspect is somewhat ambiguous. Although they come close for the reading of Miranda, the direction of the suspect is unclear. Okay, your family wants you to speak with an attorney. What about you? If you think you might need an attorney, you say you probably want to speak with an attorney, or you are asking your interrogator if you need one, these do not fill the requirement of definitive evocation of your right to an attorney.

If you find yourself in the position that what you are saying is starting to incriminate you, and you want to talk to an attorney, say so definitively.

1. I want an attorney.
2. I need an attorney.
3. Speak to my attorney, not to me.

This is not a time to be polite or tactful (don’t be disrespectful either). Say it so that there is no confusion of your desire to speak with an attorney. The hope is that you will never be in a position such as this, but sh…uh… stuff happens.

++++++++++++++++++++++++++

DON’T LET YOUR ATTACKER GET TO THIS POINT–PROTECT YOURSELF NOW AND
CLICK BELOW!!