Confusion over Miranda rights

“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 cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

There’s no confusion over the text of the Miranda warning. Anyone who doesn’t know it by heart has not been watching enough cop shows on television. There is no prescribed set of words. A police officer can say it anyway he or she wants to so long as they cover the five points: (1) right to remain silent, (2) anything you say will be used against you, (3) you can have an attorney during questioning, (4) if you can’t afford an attorney (who can?) one will be provided for you, (5) do you understand these rights?

Unfortunately, the determination of whether you can afford an attorney is not what most of us of would consider. I can’t afford an attorney under any circumstances but if I’m arrested and they find out I own my house, or even if I have some equity in it, I won’t get a free court-appointed attorney. I could probably get food stamps and an Obama phone though, I just don’t want any of that nearly as much as I will want an attorney if I should get arrested (not planning on that!).

The 5th point above may not even be required. The investigating detectives like that one though because if you admit that you understand your rights you can give an informed waiver of those rights. They want you to have all the rights you can, including the right to give them up so they can continue grilling you.

That last sentence sounds rather smart alecky and might imply that I’m not sympathetic to the detectives trying to get a suspect to make a confession. Actually, I am sympathetic to cops getting suspects to confess. Otherwise, I’d be sympathetic to the suspect who is guilty 98% of the time. Therefore, I am perfectly fine with the Dicks getting him to confess and saving the taxpayers some money.

You might think the Miranda warning has put an end to criminals giving confessions. Not so. It’s still true that the overwhelming majority of bad guys end up in prison because they failed to heed the Miranda warning and talked their way to the inmate receiving center at the state pen. I think I know why they do that, but that’s for another post.

Although it’s not difficult to know what a cop is supposed to say in order to give an effective Miranda warning, there seems to be great confusion over when he is supposed to deliver it, or whether he is required to do so at all. If you watch cop shows you might think the Miranda warning is required to be given prior to arrest. That’s not true.

I found this statement on a website devoted to the Miranda warning: However, if the officer does conduct pre-arrest questioning and feels that the suspect is beginning to make self-incriminating statements, the officer will read the Miranda Warning in order to protect the suspect’s rights and to ensure the statements may be used in court.

Well, the officer might read the suspect his Miranda rights under those circumstances but he certainly is not required to do that.  I’d say the cop is foolish to read anyone Miranda rights who is not yet in custody and is making incriminating statements while he is free to just walk away.  That’s the time for the officer to get out of the way and allow the suspect to speak.

[Technically, one is not free to walk away during a “stop and frisk.”  But the questions are just routine for identification and to see if there is an innocent explanation for the suspicious activity that led to the stop and frisk. Stop and frisk is done without probable cause and on reasonable suspicion only. Once that is over the suspect is free to go unless the cop tells him he isn’t. Even so, if the suspect is making incriminating statements without being questioned, Miranda is not required]

First of all, the Miranda warning is only required if the cops want to use the suspects statements against him in court. If they simply want information and don’t plan on using his statement in court, there is no reason to give a Miranda warning. The prosecution can even use evidence that is discovered as the fruit of the statement made without a Miranda warning. Take the Boston bomber for instance. He was talking but then they gave him a Miranda warning and he’s not talking anymore. Giving him a Miranda warning might have been a huge mistake. They wouldn’t have been able to use his statements but they might have gained valuable information from him about other terrorist plots. They might not have needed his statement in court if they have enough other evidence to convict him. All additional evidence discovered as a result of his statement will be admissible. Other terrorists found and arrested with his statement might be willing to testify against him. On balance, it might have been a wiser decision to not give him a Miranda warning. Oh well, he can always waive his rights later, and most of his ilk eventually do just that.

A Miranda warning is never required prior to any arrest. Miranda only applies to “custodial interrogation.” That’s two things: custody and interrogation. Once you are arrested you are only half way to having Miranda rights. Not until the cop starts to ask you questions does he need to give you the Miranda advisement. If I were a cop in the patrol division (those are the ones who commonly arrest people on the street) I would probably never give someone I arrested a Miranda warning. I just would’t ask any more questions after I arrested the mope. Why? Because I’d want to give him every opportunity to say anything he wants while we’re riding downtown in the squad car. [almost all police cars these days are wired for sound] Even though he is in custody, so long as what he says is not in response to a question by the cop it’s not subject to Miranda. Anything the suspect “blurts” from the back seat of the police car is likely to be recorded and for sure is going to be admissible in court. Custody without interrogation does not give rise to the need for a Miranda warning.

In fact the bar examiners use that word “blurt” to try and trick Bar applicants on the multi-state Bar exam. If the question says the suspect blurted something and you answer that it’s inadmissible because the Miranda warning had not been given, you miss that one.

I would just hand the critter over to the detectives, along with my report which will include anything he might have said on the ride downtown, and let them give him the Miranda warning before they interrogate him. I don’t know how many cops already do it this way, I just know the ones in the cop shows don’t.

There’s even a exception to Miranda for public safety emergencies. That probably applied in the Boston bomber case, another reason giving him the Miranda warning looks like a dumb thing to have done.

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