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