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Miranda warning—what it says versus what it should say . . .

15 Jun

I was a federal Civil Service law-enforcement officer for the final 26 years of my 48 years in the work force (I spent the first 22 years in the US military). In the early years of my law enforcement career, before I was taken off the street by a series of promotions, I had cause to administer the Miranda warning on numerous occasions.

My reason for this posting is to express an opinion concerning the Miranda warning.

I believe the Miranda warning, as given in most jurisdictions by most law enforcement officers, has been corrupted by the wording of the warning—with no ulterior motive on the part of law enforcement officers but none the less corrupted. The wording of the warning, as given by most officers, has perhaps contributed to many, perhaps most, of their suspects exercising their right to remain silent and to request an attorney. They take this action to avoid incriminating themselves, whether guilty or not guilty, rather than cooperating with officers and giving answers to questions, answers which, while not necessarily incriminating the suspect, perhaps could have contributed to solving crimes.

Read on for the details

The background information below was gleaned (borrowed, lifted, whatever) from Wikipedia the Free Encyclopedia at http://en.wikipedia.org/wiki/Miranda_warning.

A Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are interrogated. A custodial situation is one in which the suspect’s freedom of movement is restrained although he or she is not under arrest. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her “Miranda rights” and made a knowing, intelligent, and voluntary waiver of those rights (the term “Miranda rights” is somewhat misleading, as the mandated Miranda warning simply clarifies preexisting Constitutional rights).

The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect’s Fifth Amendment right to avoid coercive self-incrimination (see right to silence).

The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, the Court did create a set of guidelines which must be followed. The ruling states:

“…The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.

Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when he is arrested or placed in a custodial situation, the typical warning being as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?

The remainder of this posting is strictly mine, with references to the above information.

For starters, check out the above two phrases in red in the Wikipedia information—the first phrase is the Court’s requirements for the wording of the Miranda warning, and the second is the wording used in most police jurisdictions—they are not the same.

The Supreme Court said that a suspect must be informed that anything that person says may be used against that person in court. Compare that requirement with the wording in the typical Miranda warning used by officers: “Anything you say can and will be used against you in a court of law.” This  offers a compelling reason for the suspect to remain silent and request an attorney.

Imagine yourself under arrest or in a custodial status, and imagine being told the conditions which will prevail if you choose to answer questions, and the conditions which will prevail if you choose to remain silent.

Which offer would you take? Which would you feel was more advantageous for you? The one that says that anything you say can and will be used against you in a court of law, or the one that says anything you say may be used against you in a court of law?

Come on, ‘fess up—you would be more inclined to choose the one which says can and will be used against you and ask for a lawyer, rather than choose the one which says may be used against you. May means that what you say might be used and that it can be used, but not that it will be used.

The other option states unequivocally that what you say will be used against you—the inference is that anything you say can and will be used against you with no reference to, or apparent regard for, your innocence or guilt.

The wording of the Miranda warning, as used by most law enforcement officers, does not encourage a person in custody to cooperate in a criminal investigation. It instead encourages them to remain silent and request an attorney.

That’s my opinion, and I’m sticking to it.

This is my question:

How many people, guilty or not guilty, remain silent and request an attorney and thus contribute nothing to the investigation? Does the wording of the Miranda warning, the phrase will be versus the Supreme Court’s may be, perhaps influence that decision? Could the emphasis placed by the officer on certain words in the warning influence that decision? Stronger emphasis on the words will be, for example, might influence a person to remain silent and request an attorney. Conversely, emphasis on the phrase may be could possibly influence a person in custody, particularly an innocent person, to cooperate with law enforcement in the investigation.

In my opinion, it’s worth giving it a try—simply change the wording to conform with the Supreme Court’s stated requirements and emphasize these key words, may be used against you, when giving the warning. This could possibly prompt the subject to cooperate in the criminal investigation rather than remaining silent, and the officer giving the warning would in strict compliance, word for word, with the requirements levied by the Supreme Court of the United States.

Does everyone—some one—anyone—agree with me?

Does everyone—someone—anyone—disagree with me?

I welcome input from everyone, whether in agreement or disagreement, whether in or out of law enforcement, but particularly from law enforcement officers currently on duty, retired officers, and persons formerly employed in law enforcement.

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2 responses to “Miranda warning—what it says versus what it should say . . .

  1. burstmode

    June 15, 2009 at 1:17 pm

    Yes, I agree with you. I remember a class in law school in which the professor was discussing Miranda warnings. He said the reason it made sense to bend over backward to protect a suspect’s rights was because the power of the state was so overwhelming that no ordinary citizen could withstand its onslaught without significant advantages.

    Of course, the professor’s words make sense but these advantages have come at a terrible cost for society in general and there are toooooooo many lawyers who see the rights as loopholes to be manipulated.

     
    • thekingoftexas

      June 16, 2009 at 10:36 am

      Thanks for the comment, and a special thanks for agreeing with me—that’s one more than I expected.

      In my Service, we were required to carry a Miranda card and read the warning, rather than Mirandizing by rote—the Miranda card, in accordance with the Supreme Court’s requirements, read “may be used.”

      The phrase “can and will be used” is voiced so often on television that it is ingrained in the public psyche, and it’s doubtful that the warning will ever conform to the Supreme Court’s requirements.

       

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