Miranda Rights: Ways Police Officers Botch the Warnings

When cops don't properly convey the Miranda warning the suspect's statements may be inadmissible in court.

At the climax of a police drama, the music swells to a crescendo as the lead detective looks the suspect in the eye and says, “You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney….” The screen fades to black and the credits roll.

The  Miranda  warning (the name comes from the U.S. Supreme Court’s decision in  Miranda v. Arizona, 384 U.S. 436 (1966)) promotes the Fifth Amendment privilege against self-incrimination. If the police fail to give a proper  Miranda  warning, any incriminating statements made by the suspect may not be admissible in a criminal case.

There are three major ways that police botch  Miranda  warnings:

  • they fail to give the warning
  • they give ineffective warnings, or
  • they ignore an invocation of rights.

When the Miranda Warning is Necessary

Police officers don’t have to give  Miranda  warnings every time they talk to citizens. A  Miranda  warning is only required when the citizen is both in police custody and subject to police interrogation.

When is someone in police custody?

A person is considered to be in police custody if she reasonably feels like she isn’t free to leave the location where she is dealing with the police. People can be “in custody” in not just police precincts, jails, and police cars, but virtually anywhere, including public places, schools, hospitals, and even homes. The court looks at the location, length, and nature of the interaction with police to determine whether a reasonable person would have felt free to leave; if not, the person was in custody and the  Miranda  warning was required before any interrogation took place.

What is an interrogation?

The word “interrogation” conjures images from police dramas: a bare room, a lone defendant, bright lights, detectives playing good cop/bad cop, and the captain watching from behind a one-way mirror. However, “interrogation” covers much more than this kind of scene; it includes any conduct the police knew or should have known might elicit an incriminating statement from the suspect. This definition covers more than just direct questions; for example, it applies when police show a suspect upsetting evidence or make provocative statements in the suspect’s presence, intending to elicit an incriminating response.

Mistakes in Miranda Warnings

Miranda v. Arizona  requires that the police warn in-custody suspects of the following before questioning them:

  • the suspect has the right to remain silent
  • anything the suspect says can be used against him in a court of law
  • the suspect has the right to the presence of an attorney, and
  • if the suspect cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.

Some states have added additional requirements to the  Miranda  warning, mandating that police officers ask whether the suspect understands the warnings and, if the suspect is not a United States citizen, provide additional instructions regarding contacting an embassy and the possibility of deportation.

There are no magic words needed for a proper  Miranda  warning. But the police have to give a clear, understandable warning of rights in language that an average person would understand given that person’s age, background, and intelligence. For example, warnings given in complicated legalese to a high school student would probably be insufficient. Similarly, if a suspect speaks only Spanish, the police must give the  Miranda  warning in clear and effective Spanish.

In advising suspects of their rights, police officers can’t say anything that alters the basic meaning of the  Miranda  warning. For example, the following would be legally ineffective: “If you cannot afford an attorney, one  could  be appointed for you by the court.” Many police departments instruct their officers to read the  Miranda  rights off a card so that these kinds of mistakes are less likely.

Nor may police officers make any statements along with the  Miranda  warning that intentionally or inadvertently misrepresent the nature of the  Miranda  rights or the consequences of waiving them. For example, assume that an officer gives the  Miranda  warning to a defendant but also says, “If you didn’t do this, you don’t need a lawyer.” By making such a statement, the officer may have misled the suspect to believe that invoking the right to counsel would be seen as a tacit admission of guilt. As a result, a court would likely hold that the suspect’s waiver was involuntary.

Invoking the Miranda Rights

In order to invoke the  Miranda  rights—and thereby stop police interrogation—the suspect must make a clear, unequivocal statement to that effect. “I am going to remain silent and I want a lawyer” suffices, but “I’m not sure if I need a lawyer” does not. Once suspects invoke their  Miranda  rights, all police interrogation must cease immediately. If police ignore an invocation of  Miranda  rights, any statements made by the suspect generally won’t be admissible in court. Nor will the statements be admissible if the suspect speaks to police after a botched  Miranda  warning.

For more on the consequences of Miranda violations, see  When Police Violate the Miranda Rule.

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