How to Invoke the Miranda Rights

The surest way to invoke your rights is to say the Magic Words: I’m going to remain silent. I would like to see a lawyer. These two sentences completely invoke your Miranda rights. The reason for memorizing this particular formula is that it’s easy to make mistakes.

For example, some people say, “I take the Fifth.” That’s good, but it doesn’t remind you of what you’re supposed to be doing: remaining silent and waiting for your lawyer. If you say, “I take the Fifth” and then keep on talking, you cancel the effect. Not only will the police be able to go on speaking to you, but everything you say to them will be used against you in court.

Another error is being too hesitant, as in “I think maybe I’d like to remain silent,” or “Do you think I should talk to a lawyer?” Usually, people do this because they’re nervous and they don’t want to seem impolite. But the police immediately take advantage of this sort of shyness to talk the suspect into answering questions.

Finally, some folks give in to the temptation to get fancy, saying things like, “I hereby respectfully invoke my constitutionally-protected rights not to be forced to incriminate myself and to have adequate access to counsel, etc.” Such long-winded versions are silly for two reasons. First, you’re likely to contradict yourself or leave out something important. Second, it makes you sound stuffy, which annoys the police. It’s best to keep it simple: I’m going to remain silent. I would like to see a lawyer. This gets the job done, legally speaking, and keeps you from getting the wording wrong or sounding like a wanna-be lawyer.

Oral Confessions and Written Confessions

Some silly people persist in imagining that it doesn’t matter what they say to the police, as long as they don’t sign anything. Yet the Miranda warnings specifically state, “anything you say can and will be used against you in a court of law.” So this shouldn’t be a mystery. However, just to be crystal clear, what you say to cops can be just as harmful as what you write or sign for them.

Here’s how the police gather incriminating statements during a typical arrest:

1. At the scene of the arrest, the officer reads the Miranda warnings and the suspect fails to invoke his rights. Then the suspect answers the officer’s questions. The officer takes notes and later quotes the suspect (accurately or not¹) in the narrative part of the police report.

2. At the arrest location or at the police station, the suspect is invited to tell his side of the story, in a written statement. Sometimes the suspect himself is asked to write the statement, but usually the suspect talks while the officer does the writing. Officers generally edit as they write: leaving some things out, suggesting particular words, or just inserting their own words. Then the suspect is told to sign the statement. Usually the suspect doesn’t bother to read it over, let alone make any corrections; or perhaps the suspect is too frightened or upset to disagree with whatever the officer wrote.

3. At the police station, if it’s a serious case, officers will question the suspect again. This interview will normally be audio taped, though sometimes the police use videotape. The officer may also seek a longer, more detailed written statement from the suspect.

Naturally, statements on paper or on tape make it harder to defend the case than oral statements. Yet even brief oral statements can be impossible to deny or explain.

1. One teenage client was busted on the street and the cops dragged him over to a wall covered with graffiti. The officer demanded, "Did you write that?" The client carefully replied, "No, I did not." In his police report, the officer wrote: "I asked suspect, 'Did you write this graffiti"' and he responded, 'Yes.'" In court, it was the officer's word against my client's - and they were in juvenile court, so there was only a judge and no jury. Bummer.

See other Miranda Rights related pages:

©2007 Katya Komisaruk

Republished by permission from the Just Cause Law Collective

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