The Miranda Rights

Dick Gregory Calendar Cover - 250

Most of us have watched enough TV know the Miranda rights (also called the Miranda warnings) by heart:

•  You have the right to remain silent.

•  Anything you say may 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 by the court.

These rights are derived from the U.S. Constitution, so the protection they provide is particularly strong because the Constitution is the ultimate law in every jurisdiction in the United States.2

The right to remain silent is also called the “privilege against self-incrimination.” It means that you cannot be forced to say or write anything that might be used to prove you’re guilty of a crime.3

The right to an attorney means that you’re entitled to have a lawyer present to help you during police questioning, line-ups, hearings, etc. Having your lawyer present during interrogation will help you use your right to remain silent.

When the court appoints an attorney for you because you can’t afford one, that lawyer is usually a public defender or panel attorney

There is no one-and-only correct wording for the Miranda warnings—small changes are acceptable. For example, one officer might say “Anything you say may be used against you in a court of law,” and another police officer might say, “Anything you say can and will be used against you in a court of law.” Both versions would be considered adequate. However, the officer can’t make a change that alters the basic meaning. For example, it would be legally insufficient if an officer said: “If you cannot afford an attorney, one may be appointed for you by the court.” Many police departments instruct their officers to read the Miranda rights off a card so that they’re less likely to make a mistake.

If you invoke either of these two rights—the right to remain silent or the right to counsel—the police have to stop questioning you. It’s best to invoke these rights together because that provides both present and future protection from interrogation.

1.  The Miranda rights got their name from a case decided by the U.S. Supreme Court in 1966, in which Ernest Miranda's conviction for rape and kidnapping was overturned because the police questioned him without adequately informing him of his opportunities to remain silent and to obtain legal advice.  Miranda v. Arizona, 384 U.S. 436 (1966).

2.  Occasionally, you'll read a superficial news story claiming "the Miranda protections have been overturned."  This is because every so often there's a new high court decision that refines or adapts the use and effect of the Miranda warnings. Since most journalists aren't in a position to explain new legal technicalities, they end up oversimplifying the story – and then their editors compound the problem by adding a hysterical title like, "Miranda Rights Abolished!" (News is a business and sensationalism sells.)  So regardless of what the headlines say, don't panic before checking with a lawyer.  Besides, the Miranda decision only says that, under certain circumstances, the police have to tell you about your constitutional rights. Even if the Miranda case were overturned, it would just mean that you've got to learn about your rights without input from the police – which, fortunately, you're doing at this very moment.

3.  Voice samples and handwriting samples are exceptions to this rule.


General Interrogation Techniques

You know the police are really trying to manipulate you when they offer a legal defense or moral justification for what you’re accused of doing, or imply that what happened was due to an accident or to circumstances beyond your control.1 In applying this tactic, the interrogator frequently offers the suspect two choices, for example, a believable explanation or an unbelievable one; an honorable excuse or a dishonorable one. Of course, both choices are still damaging admissions—it’s just that one sounds better than the other. Imagine the following lines said by a sympathetic, understanding police officer in a warm, reassuring tone of voice:

Legal Defense

• I understand what you’re saying…he threatened you, and essentially you were acting in self-defense.

• Okay, we’ve got you for possession of marijuana. But what isn’t clear to me is: were you just out to get stoned, or were you maybe using it for medical purposes?

Moral Justification

• What I’m wondering is whether you needed that money so you could take care of your kids and get them decent food and clothes and all—or did you just do it because you wanted drugs or new Nikes or whatever?

• Well, that’s a perfectly normal reaction. When a man finds out that his wife is sleeping with another guy, he’s going to want to go out and do something about it.

Accident or Circumstances Beyond Control

• Now, I wasn’t there, so I don’t know. Only you know what really happened. But I’m thinking that when two people get into it, when there’s an argument, stuff can happen that nobody ever intended. I mean, you could’ve just been shoving each other around, and he could’ve fallen and hit his head by accident—just plain bad luck.

• Obviously, there’s a difference between being an active participant and being a bystander. It’s one thing to be actually involved in selling the drugs, and it’s another thing to just be in the house when some other guys are doing a deal there. But the way things look, you could be either one. And the only way we’re going to be able to figure out what your real role was, is if you talk to us.

Another common aspect of Reid interrogation is minimization/maximization, contrasting the worst case scenario with the best possible outcome.

• You know, there’s a lot of different ways this case could be charged. Anywhere from first-degree murder—that gets you life without parole—all the way down to involuntary manslaughter, for which people typically get probation. What we’re doing right now is trying to understand what really happened, so we can make a decision which way to go…

Often the police will even say, “Look, I’m not making any promises…” and then imply that confessing will result in a better outcome in court: lesser charges, a more favorable sentence, etc. This is a lie. The police are not authorized to offer leniency in exchange for a confession. Only the prosecutor or judge can make a plea bargain.2

All law enforcement officers are trained to question suspects. Very few civilians have any practice in spotting or withstanding the interrogation techniques police use against them. It’s pretty stupid to play such lousy odds when your liberty’s at stake.

It’s initially surprising that the Good Cop Bad Cop routine works so well since it’s generally so obvious. You’ve seen it in hundreds of TV shows and movies, and most people consider it a cliché. Yet law enforcement officers use it in every city, every day…because it works nearly every time. And a big reason it works so well is that when you’ve just been arrested, you’re extremely vulnerable. You’re thinking of all the horrible things that are likely to happen: going to jail, disappointing your loved ones, being publicly disgraced, losing your job, failing school, etc. On top of that, if you’ve been in custody all day or all night, you’ll be suffering from fatigue and hunger, and perhaps other physical stresses. So, psychologically, you’re a sitting duck. And even though you know, intellectually, that the good cop is just trying to manipulate you, you cannot help having hope and trust in the one person in this awful situation who seems to be on your side. It’s a tough problem, but there is a solution. The answer is to train your mind so that you say I’m going to remain silent. I would like to see a lawyer, no matter how upset you’re feeling or how kind the officer seems. “Don’t just practice until you can get it right, practice until you can’t get it wrong.”

Of course, sometimes the cops aren’t pretending. The bad cop may, in fact, have lost his temper and be yelling at you for real. Or the good cop may truly want to help you, and may think that your answering questions will somehow benefit you. But whether or not the cops are sincere, your strategy remains the same. You should still say: I’m going to remain silent. I would like to see a lawyer. Because if the bad cop really does want to make trouble for you, you're giving a statement will make it easy for him. And the good cop, in urging you to answer questions, is giving you bad advice. Some officers honestly think that if a suspect makes a statement, it will be helpful. But it doesn’t work that way in court. Prosecutors can almost always find something in suspects’ statements that can be used against them. That’s why, when you do tell your side of the story, you should do it with the help of your defense attorney—so that your words can’t be twisted or misquoted.

If you’re arrested with friends, make an agreement that no one will make statements to the police until everyone’s been able to talk to a lawyer and decide calmly what to do. Be aware of the paranoia that tends to set in after people have been separated.

Warning: Do not have a strategy discussion in the backseat of a police car!

If you’ve been arrested with someone else, and the cops lock the two of you in their car and walk away, you can bet dollars to donuts that they’re recording your conversation. So if you’re in this situation, just remind the other person that the smart thing to do is to say: I’m going to remain silent. I would like to see a lawyer. And leave any further discussion until later.

When you’re in jail, don’t talk to your cell-mates about what happened to you or who was with you—because you really don’t want them testifying at your trial or sentencing hearing. Don’t even talk about mutual acquaintances. Stick to safe topics such as movies, music, sports, etc. You’ll make it a lot harder for anyone to snitch on you if you don’t snitch on yourself.

1. John Reid codified these tactics, referring to them as the "Nine Steps of Interrogation." Reid and his partner Fred Inbau spent decades writing about and teaching interrogation techniques, and business is still booming at http://reid.com/. In U.S. police academies, their books have been the most popular texts on this subject. Their work is full of sample scripts, generally involving a hapless suspect named Joe: "Joe, if this whole thing was your idea, that tells me that you have a criminal mind. But if you were just talked into doing this against your better judgment, that would be important to include in my report. You were just talked into it, weren't you?" For examples of how such techniques get innocent people to confess to crimes, take a look at the work of Richard Ofshe, at http://www.reid.com/educational_info/r_ccorner.html.

2. There's a difference between confessing and snitching. A law enforcement officer can't offer you a deal in return for a confession, but he can make a snitch deal.


Common Interrogation Lines

It’s unlawful for the police to beat you into confessing;1 however, it’s perfectly legal for them to sucker you into it. That’s why interrogation doesn’t usually involve bright lights and rubber hoses—more often than not, the officer sounds sympathetic or at least business-like. And that can leave you even more vulnerable to manipulation, because when you feel relieved that the officer isn’t being really scary, you tend to let your guard down. Besides, it’s truly difficult to overcome the natural urge to talk one’s way out of trouble. That’s why it makes so much sense to train yourself to say I’m going to remain silent. I would like to see a lawyer, under any circumstances. It’s got to become a reflex you can rely on, the same way you know that you’d automatically start swimming if you fell into deep water, even if you were scared and disoriented.

Common Interrogation Lines

You’re not a suspect. We’re simply investigating here. Just help us understand what happened and then you can go.

If you answer questions, you’re likely to become a suspect, if you aren’t really one already.

What are you afraid of? If you haven’t done anything wrong, then you shouldn’t have any problem answering my questions.2

What you should be afraid of is being lured into answering questions. You don’t have anything to prove. Remember, in court you’re “innocent until proven guilty”—and the thing most likely to prove guilt is an unplanned statement made when you’re arrested. If the police are thinking of arresting you, answering their questions will make them more determined to do it, not less so.

Look, if you don’t answer my questions, I won’t have any choice but to take you to jail. This is your chance to tell your side of the story.

This is the commonest trick of all! The police consistently pretend that they’re considering letting you go when they’ve already made up their minds to take you to jail. Remember, the time to tell your side of the story is when you’re in court and have your lawyer helping you—not when you’re alone with a cop who’s busy building a case against you. See how a real police inspector uses this technique during an actual interrogation, in Use a Pie, Go to Jail.

Your friends have all cooperated and we let them go home. You’re the only one left. Do you want to stay in jail?

The police can lie about where your friends are and what they’ve said. Take a look at Rat Jacket. Don’t trust information given to you by the cops. Make sure to verify your facts through a lawyer or your friends and family.

I’m tired of screwing around. If you don’t answer my questions, you’re going to be charged with obstruction.

Well, you know this is garbage because the Constitution guarantees you the right to remain silent—so refusing to answer questions can’t be against the law. But some cops will still threaten you with “resisting an officer” or “obstruction of justice,” just to see whether you’ll fall for it.

Come on, I’m not asking you to sign anything. We’re just talking. And you can stop anytime you want to.

Remember, anything you say can be used against you in a court of law. You don’t have to sign anything to make it a real confession—the police will just quote you (and they may be taping you, too). The time to stop is before you ever begin—even a little time spent answering questions can completely screw up your case.

Look, we’ve got all the evidence we need to convict you, so you might as well confess.

Yeah, right. If the police really had all the evidence they needed, they wouldn’t waste time talking to you. The only reason they’re questioning you is because they don’t have enough proof, and they’re hoping you’ll be kind enough to give it to them.

Basically, the case against you is really strong. It’s not a question of whether you’re going to jail—it’s a question of what you’re going to jail for. This is your last chance to get the right information to the DA before he decides on the charges.

This is not the time to give more information to the DA (the prosecutor). You can do that later, once you’ve got a lawyer helping you. After all, the DA can change the charges any time up to the trial, and usually does—reducing or dismissing them as part of a plea bargain. But your lawyer can get you a better deal if you don’t give away all your bargaining power by confessing to the arresting officers.

You know, there’s only one person who can help you right now, and that’s you. I can listen, but you’ve got to do the talking. This thing is going to eat at you; it’s going to weigh you down for the rest of your life if you don’t get it off your conscience. Things look pretty bad right now, and they are. But this is where you have to start from. You’ve got to get this stuff out now, so you can move forward. If you could talk to the victim right now, what would you want to say to him?

Confession may be good for the soul, but not when it’s to the police. Talk about your feelings with a spiritual advisor such as a minister, priest, rabbi or imam, or with a licensed counselor such as a psychiatrist, psychologist, or social worker (but not a probation officer). They have the professional training to help you, and more important, they’re prohibited by law from testifying about what you confide to them. Cops, on the other hand, will gladly testify about what you’ve “gotten off your chest.”

You got a choice here. Either you answer my questions, or you’re going to jail. And I’d hate to see a nice white boy like you get punked by a bunch of nigs.

– or –
You can talk to me now, or you can go to jail. And let me tell you something, there’s women in that jail who haven’t been outside in months, women who haven’t been with a man for a real long time. How’d you like to be raped by a bunch of lesbians?

Cops use this kind of race-baiting and queer-bashing pretty frequently to scare white people who haven’t been to jail before. And the cops aren’t particularly subtle about it. Don’t let some bigot with a badge put his trash into your head.

TV and movies make rape-in-jail scenarios look more frequent than they really are. Most people in jail are there for drug or property crimes, not crimes of violence (much less sexual violence). If you behave reasonably, other prisoners really aren’t likely to give you a hard time. See Going to Jail for the First Time.

1.  The 5th Amendment to the U.S. Constitution says that no one "shall be compelled in any criminal case to be a witness against himself."

2.  This is not the time to launch into a political discussion of how the legal system is malfunctioning and can't be trusted to protect the innocent.  Don't let yourself be drawn into any kind of conversation at all.  Besides, this "what're you afraid of" business is like a 12-year-old's dare ("If you're so tough, why don't you try getting across the tracks before the train comes?" or "You don't even know the first thing about how to drive – let's see you take your Mom's car around the block.").

See other Miranda Rights related pages:

©2007 Katya Komisaruk

Republished by permission from the Just Cause Law Collective

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