How Officers Trick People Into Giving Up their Miranda Rights

In 1966, when the U.S. Supreme Court ruled that officers must recite the Miranda warnings before questioning arrestees, police across the country were outraged. They were sure that suspects would never again confess or even make a few incriminating statements. However, a year or two later, the police had stopped fussing. They discovered that giving the Miranda warnings had very little impact on suspects’ behavior. Instead of remaining silent or asking for a lawyer, most suspects whom the police arrested went right ahead and answered questions, completely ignoring the warnings.

Now, decades later, the public seems to feel that the Miranda warnings are just part of the arrest ritual, the stage that comes between being handcuffed and being put into the back of the squad car. After all, most officers read the rights in a bored monotone, without any emphasis. So an arrested person is likely to think that the Miranda warnings aren’t very important (though this is actually the last best chance you have to help yourself). Some officers even refrain from saying, “Do you understand?” at the end, because they don’t want people to stop and think. Immediately after reading the warnings, an experienced cop will start asking easy questions about age, marital status, employment, etc. Once suspects have been obediently answering a long string of these questions, they will find it very uncomfortable to stop in the middle, even though the inquiry has shifted from personal background information to pointed questions about the crime under investigation.

When a suspect doesn’t immediately start babbling, law enforcement agents have very effective tricks for getting people to start talking. The following are common arguments the police use when they’re trying to convince you to answer questions. Notice the false assumption in each one:

What’s your problem? We’re just trying to clarify what’s happened here. And since you say you haven’t done anything wrong, what’ve you got to be afraid of?

False: If you don’t answer questions, you must be hiding evidence of guilt.

True: The constitutional right to remain silent would be useless, if exercising it branded you as guilty. That’s why, if you invoke your right to remain silent, the police and prosecutor are forbidden to use it against you in court. In fact, during trial, if a prosecutor even implies that you’ve remained silent out of guilt, your defense attorney can object and call for a mistrial!

When we’re done here, I’m going back to the station and write my report. That’s what the DA’s going to use to decide who to prosecute and for what charges. Right now, all I have for my report is how the other guy said it happened. Of course, you don’t have to talk to me, but as far as my report’s concerned, this is your last chance to tell your side of the story.

False: If you don’t tell your side of the story to the police, you’ll lose your chance to talk your way out of being prosecuted.

True: You cannot assume that police officers are neutral, listening to both sides and deciding who’s at fault. It’s their job to collect potential evidence against people. Prosecutors aren’t neutral parties, either. It’s their job to prove people guilty. So if you’re a suspect and you tell your side of the story to the police and the prosecutor—who, by definition, are not on your side—you will be hurting yourself. The right person in whom to confide is your own defense lawyer. Your lawyer will then help you tell your story to the judge and/or jury, who are the only people whose job it is to listen impartially to you.

Look, you’re busted. There’s no way you’re getting out of this. The best thing you can do for yourself at this point is tell the truth. If you take responsibility now, it’ll look a lot better when you get to court.

False: The prosecutor and judge will respect you if you confess immediately upon being arrested.

True: Prosecutors will think you’re pretty stupid if you confess to the police, but they’ll be happy because it’ll be much easier to win the case against you. Judges don’t particularly care whether you confess to the police or not, as long as you accept a plea bargain before the case has to go to trial. From a strategic standpoint, admitting guilt is only valuable if you hold it in reserve, so that your lawyer can use it as leverage to cut a deal for you. Confessing before negotiating is like going to buy something you really want, putting all your money on the table and asking, “How much does this cost?”

Above all, do not ask for or accept advice from the officers who have stopped you. They are not there to act as your advocate or judge. Remember that they’ve been trained to put you at ease, to get you to trust them. Their job is to find, arrest and help convict the suspect. And that suspect is you.

How Officers Trick Suspects Who Have Children

Police often manipulate suspects who have children into confessing or consenting to searches. The soft approach goes like this:

Hey, I see you’re alone here with your kids, and I don’t want to make this any harder on you than necessary. I tell you what, if you’ll sign this form and answer a few questions, we’ll let you make some phone calls right now, to find someone who can come pick up the kids.

The hard approach sounds like:

You know, I could put in a call to Child Protective Services and have a social worker out here within the hour. Do you know how hard it is to get your kids back, once the county takes custody of them?

This is a really tough situation, but it’s critical to say the Magic Words, I’m going to remain silent. I would like to see a lawyer, no matter how frightened and upset you feel. In the short term, if you refuse to cooperate with the police, they may take your children for a little while—but in the long term, you stand a much better chance of beating the criminal charges and coming home. When you answer questions or consent to searches, you sabotage your chances of winning your case or negotiating a favorable plea bargain—which may result in your going to jail or prison, where you won’t be available to your children for a long time.

Remember that as long as there are relatives or a designated guardian who can take custody of your children, the authorities aren’t going to put your kids in foster care. The county has no interest in spending resources on caring for anyone’s children, if it doesn’t have to—and the authorities will be more than happy to turn them over to an appropriate guardian as soon as possible. You can shorten the amount of time your children have to wait to be rescued, if you designate a guardian in advance.1  To appoint a guardian, it’s best to check with a lawyer or law clinic—the procedure varies from jurisdiction to jurisdiction, and you don’t want your child’s guardian to have to struggle to prove that she’s properly authorized. If your children are old enough to understand, have them memorize their guardian’s name and telephone number. While waiting to complete the arrangements to designate a legal guardian, you should prepare a letter giving certain adults permission to take care of your child in the event of an emergency. Such a letter is not a substitute for setting up a true guardianship, but it may convince the authorities to let the adults you’ve specified take temporary custody of your child. Sign and date the letter, and leave copies with your child’s school, your child’s doctor, and each of the adults named in the letter.

1.  It’s wise to designate a guardian for your child even if you never expect to get in any trouble with the law, in case you’re caught in an accident or other disaster.

See other Miranda Rights related pages:

©2007 Katya Komisaruk

Republished by permission from the Just Cause Law Collective

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