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Miranda Warnings

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You have 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 an attorney.
If you can not afford an attorney, one will be appointed to represent you.
You can choose to exercise these rights at anytime.

What is Miranda?

Everyone who has watched an American police show, such as Dragnet, has heard these warnings. Most people can probably recite them as well as the police. Miranda warnings are based on the landmark United States case Miranda vs Arizona 384 US 436 (1966). The warnings are required to be read during 'custodial interrogations'. This means that whenever a person is under arrest, and they are asked a question about a crime, these rights must be read to them. They must also understand these rights, and waive them voluntarily.

Who Was this Miranda?

Ernesto Miranda was arrested for kidnapping and rape by the Phoenix, Arizona police. He was taken to the police department where he was identified by the complainant. Then he was taken to an interrogation room, and two hours later he signed a confession. The confession was the principle basis for Miranda's conviction.

After the Supreme Court's decision, Miranda was re-tried without his statement. He was convicted again, and he served time in prison.

After he was released, Miranda was killed in a bar fight. A suspect was arrested. Officers read the killer his Miranda rights, but he wouldn't speak with them. There wasn't enough evidence to convict him. So, ironically, Miranda's killer got off because of the Miranda vs Arizona case.

Arguments for Miranda

The basic argument for Miranda warnings is that they notify suspects of their rights during a very stressful time. Since a person is being held away from friends in a strange environment, the warning helps them understand what is happening and what they can do.

There are some district attorneys and police officers that like Miranda. They make suppression hearings very simple. If a prosecutor can prove that Miranda was read and waived properly, then any admissions are assumed to be voluntary. It simplifies motion to suppress hearings.

Arguments against Miranda

Miranda has several flaws. First, people are supposed to know the law and the cliché, 'ignorance of the law is no excuse', is based on common law. People are assumed to be familiar with the law, and they are held responsible for that knowledge. Why should there be this one exception?

Secondly, the Miranda warnings are a part of American culture. Virtually everybody knows them. No one needs to have them read to them any longer.

Finally, the whole series of cases that led up to Miranda were geared towards proving that confessions were voluntary. Miranda ignores whether or not the statements are voluntary if the warnings haven't been read. If a person gives a voluntary confession it shouldn't be suppressed because they hadn't heard the warning. Even if a criminal defence attorney is interrogated, and these rights aren't read to him, his statements can be suppressed. The warnings have become an anachronism.

Myths about Miranda

Miranda is a much misunderstood decision and there are numerous misconceptions about what the decision means.

Officers Must Read the Miranda Warnings whenever they Arrest Someone

This comes from the curious fascination of directors having television cops read Miranda whenever they make an arrest. It's very dramatic, but it isn't necessary1. Officers are only required to read the Miranda warnings when someone is:

  • In custody
  • Being interrogated

If a person is arrested, and the officer doesn't have any questions for him, then there's no reason to read the warning. However, some agencies do require their officers to read people their rights every time they arrest someone.

Anything Gained in Violation of Miranda is Inadmissible

There are several ways to get statements that technically violate Miranda into court. One method that is allowed by Harris vs New York 401 US 222 (1971) is, after a person has invoked their Miranda rights, to keep questioning the suspect. You can even tell the suspect, 'Look, you don't have to worry about anything you say from here on out. We can't use anything else you say in our case-in-chief'. This is all technically correct, but you can use any information he provides to impeach him at trial.

If he gets on the stand, and denies any of the facts he gave you in violation of Miranda, the prosecution can use those statements to impeach his credibility. They can't be used for their value as direct evidence, but they do show that he changes his story. The fact that they're incriminating statements given by him is irrelevant to his impeachment (but they sure are convenient).

There is also a public safety exception. If you arrest someone, and you think they have a gun, you can ask them about it, because it's a matter of public safety.

I Have to Be Read Miranda on Traffic Stops

The courts have ruled that traffic stops are brief stops where custody doesn't exist. Therefore, officers don't need to read you Miranda before asking questions on traffic stops.

Now, if an officer develops probable cause to make an arrest during a traffic stop, things become vague. It is sometimes difficult to know when you gain probable cause and when the situation changes between investigative detention and custodial arrest. The best thing to do is not to ask directly incriminating questions when it appears that there may be an arrest. It is especially important to not indicate that you are going to arrest before you're investigation is complete.

There was one instance where an officer's case was thrown out because he requested a wrecker and then continued to ask questions. The court held that the person was under arrest when the wrecker was called because they felt that in the officer's mind that person was going to be arrested at that point.

How to Apply the Miranda Warnings

Rule for reading Miranda is that if you are a uniformed officer don't. Unless the case is your case, and you feel that you're ready to interrogate the person, then don't read it. If the person you arrested is going to be interrogated by someone else, let them read the warnings.

If you just had to chase the suspect, and you used minimum necessary force to arrest them, they probably will not be well disposed towards you. If you read them Miranda, they're not going to co-operate. If they refuse to talk to you, then a detective can not re-read them later. When a person is taken to a detective, he is meeting a person who is not in a uniform. The perception is that they are being taken to a person in authority over the officers who 'abused' them. The detective will approach the person in a friendly manner. They are trained to minimise the impact of the warnings, and usually they can obtain a confession if they're allowed to ask the person questions pursuant to Miranda.

There are many ways to get around Miranda, and to minimise its impact on the suspect.

Don't Interrupt

Miranda only applies when a police officer asks a question. If a person volunteers information, then listen carefully. Turn on your pocket tape recorder (it should already have been on). Let him say his piece. Do not interrupt the guy to read him his warnings - he wants to say his piece.

People will do this. Numerous admissions have been taken while officers have filled out paperwork. People have a hard time sitting in silence when other people are around. They want to talk.

Once the person has had their say, you may want to ask, 'Look, do you want to talk to me about this?'. If they say yes, then read them their warnings, and ask your questions (see below).

It's rude, disrespectful and stupid to prevent someone from confessing. Any officer who does this should be suspended!

Don't Take Them into Custody

Detectives routinely ask suspects to come down to the station. Detectives question them without Miranda being read, and then they let them leave. When the suspect leaves, the detective goes to the judge for an arrest warrant. This is called the 'Catch and Release' programme.

Reading Miranda

If you have to read Miranda to someone, then there are some ways to minimize the warning's effects. It's always good to talk to a person. Ask questions that don't have anything to do with the crime. Good questions include, 'Tell me about where you grew up?' and 'Describe your high school'. This makes them comfortable, and it allows you to pick up on their cues for honesty and deception.

Then you read the statement very quickly. The warning can be prefaced by something like: 'Look I need to read this to you. We're not really supposed to talk to you until you sign'. It also helps to make light of it. The Miranda waiver forms generally have five places to initial and two places to sign. You can remind the suspect, 'Look we're part of the government, and we have to sign everything in triplicate'.

Once they've signed, stay on non-threatening subjects, and put them at ease. Then start asking pertinent questions. They may get tired of the exercise and try to talk to you outright.

Dickerson vs United States

Would it Really Have Overturned Miranda?

Dickerson vs United States was the case that everyone said would 'overturn' Miranda. Miranda v. Arizona allowed for other methods of ensuring the voluntariness of confessions. The court held that as long as the other methods were at least as effective as Miranda, they would be proper. This was also a court-created rule, rather than something required by the Constitution. So Congress enacted 18 USC 3501.

Section 3501 makes the admissibility of statements turn on whether or not they are voluntary. One of the possible ways of showing that they are voluntary is showing that Miranda warnings are read. This was the method clearly preferred by the code section, but it allowed for other methods such as showing that no coercion was used and so forth.

Dickerson was a bank robber who was questioned without being read his Miranda warnings. He made a motion to suppress, which was granted by the District Court. The Government appealed, and the Fourth Circuit Court of Appeals found that the statement was voluntary and that it complied with section 3501. It also concluded that Miranda was not of Constitutional significance, therefore, Congress could modify it by statute. The decision of the Fourth Circuit was reversed by the Supreme Court.

1It's also a big mistake. Almost everyone will invoke their rights while being arrested.

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