Crime, Police

Miranda Myths

Miranda warnings are often misunderstood, and are sometimes abused by police.

By  
on

Under ArrestMiranda warnings are often misunderstood, and are sometimes abused by police.  Let me explain.

Recently, I tried a case where the jury had to decide whether my client could voluntarily waive his Miranda rights.

“Voluntarily” is a term of art.  In some states, it’s interpreted broadly and in others (like New York), its meaning is much more narrow.

My case, involving charges of Robbery and Burglary, had no evidence connecting my client to the crime except for his confession.  That’s not to say there was no evidence of a crime, there was.  The complainant, however, couldn’t identify my client (all the perps wore masks), there were no forensics implicating my client, and none of the co-defendants (all of whom had already pleaded guilty) testified at trial against him.

All the prosecutor had was my client’s confession, and it had problems.

My client has a 67 IQ — considered borderline intellectually deficient (what used to be called “mentally retarded”).  Added to the cognitive deficits was that the fact that at the time of his waiver, my client was jonesing from heroin addiction.  Although he was read Miranda, I argued to the jury that there was no way he could have understood the rights or given them up voluntarily.

The warnings were read to my client, twice — first by detectives in an interrogation room and later by a prosecutor on video.  However, Miranda rights are generally read quickly in a monotone voice and in such a perfunctory manner — “We just have to take care of this little thing first, before we can hear your side of the story.”  — that even high-functioning adults not coming down from heroin have a hard time fully comprehending just how important they are.  Talking to police without a lawyer never, ever, gives the suspect an advantage, no matter how sympathetic the police may seem.  The interests of the police and the suspect are antagonistic.  Police want a confession to make their lives and that of the prosecutor easier.  The suspect wants to go home.

Sponsored

I argued to my jury that telling a heroin addict in the throes of “craving” that he can remain silent is like telling a toddler clutching an ice cream cone not to lick it till he gets home.  If the addict thinks there’s any hope of getting out quicker by talking to police, that’s what he’ll do — to hell with the long-term consequences.  When the detective was reading my client his rights, his only focus was on getting his next fix.  That was more important and immediate than worrying about a long haul in jail.

Both sides presented experts — mine to say a 67 IQ impacts a person’s ability to understand the abstract rights Miranda conveys; theirs to say Miranda is such a “part of our national culture,” widely known from TV and movies, that it’s as familiar as hotdogs and baseball.  “Every ex-con knows it,” their expert said.  “It means lawyering up. That’s all they have to understand.”

But as I prepped the case, I learned just the opposite.  While everyone may be familiar with Miranda or “being read their rights,” there are substantial misconceptions about how Miranda works.

In one study, Richard Rogers, a Ph.D. from the University of North Texas, tested a group of college students and an equal number of inmates in pre-trial detention to compare their knowledge of Miranda.  Both groups harbored similar misconceptions.  For example:

1) My case has to be thrown out if my Miranda rights weren’t read. WRONG. Your rights need only be read if you are questioned by police.  In other words, police do not have to tell you about the right to remain silent as they slap on the handcuffs (as is often depicted on television).  They only are required to read your rights before and if they interrogate you.

Sponsored

2) Choosing to remain silent can be used against you in court. WRONG.  I’ve seen British police procedurals where this appears to be the case (check out the excellent “Happy Valley” on Netflix), but in the U.S., the fact that you didn’t tell police your side of the story CANNOT be used against you.

3) Once you start talking to police, you can’t refuse to speak further. WRONG.  Even after you’ve waived your Miranda rights, if you begin to regret your decision, you can stop the proceedings simply by saying, “I’ve changed my mind and now want an attorney.”  Police must then cease all questioning and wait till an attorney (someone you’ll have had to retain at that point) comes in.  Most times, though, you’ll simply be put back in the system to get arraigned.  That’s when, if you need a public attorney, one will be appointed to represent you.

4)  You have to understand the consequences of waiving your rights, otherwise it’s not voluntary.  WRONG.  At least in New York, you just have to know the plain meaning of the rights and not the future legal consequences of your choice to talk.  This is unfortunate because for people with low IQs and bad addictions — slow thinkers and impulsive actors — they generally do not understand just how much harm they’re doing to themselves by making statements to police.

Oh, one more thing (I’ve said it in this column before and will keep saying it) — police ARE allowed to lie to get a confession.  They may make subtle promises like, “It will go faster, if you just tell us what we need to know.”  Or maybe, “We just want to hear your side of the story.”  Or, they may resort to out-and-out lies like, “We have you on video committing the crime,” or “Your co-defendant already told us everything you did.” Because they are allowed to lie, waiving Miranda becomes a lot more tricky.

According to research, there are at least 800 versions of Miranda being read to suspects in the U.S., some ranging from 4th-grade reading level all the way up to college.  (My client had only a 3rd-grade reading level and dropped out of 9th grade.)

Yet, in my experience, jurors are reluctant to acquit based on an improper Miranda waiver alone (although that’s what the law requires.)  I mean, if the defendant confessed, he confessed.  He said he was part of a particular crime.  Throwing it out or pretending it never happened seems like some slick-lawyer technicality.  Right?

Wrong.  Miranda is the law.  It’s embedded in our Constitution’s 5th and 6th Amendments and has been upheld in all its glory by one of our most conservative judges, William Rehnquist, in Dickerson v. U.S. when Texas tried to have Miranda overturned.

The point of Miranda is to even the playing field between police and the person they’ve arrested.  Remember, the warnings are generally read before a suspect has met an attorney, at the moment when he’s at his most vulnerable — sleep-deprived, panicked, and often coming down from alcohol or drugs.

Two improvements could help Miranda better do what it’s meant to do.  One would be, instead of reading the rights perfunctorily and at break-neck pace, police could read a simplified version. “You have the right to consult with an attorney” could instead be: “You can talk to a lawyer.” “Anything you say can and will be used against you in a court of law” could be: “We’re going to use everything you tell us to try and convict you.”  Finally, a new one could be added: “If you decide not to talk to us, that fact will not hurt you.”

Next, all police interrogations should be videotaped.  Not just the moment when the defendant speaks to the prosecutor (he’s already been prepped by police to say what’s needed), but also those first moments when detectives put him in the interview room and, in efforts to “break the ice,” make him promises, some subtle, others not so, that undermine the rights Miranda was created to protect in the first place.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

Topics

, , , , ,