You Have The Right To Remain Silent | The Hoglawyer

Friday, November 10, 2006

You Have The Right To Remain Silent

Posted By on Fri, Nov 10, 2006 at 3:25 PM

Now that the election is over, I can get back to the whole inspiration I had to begin this blog in  the first place– writing about any legal topic that interests me that day.

Today, its “Miranda Rights.” We all think we know what it means, but do we really? I think people know what these rights are, and we watch so much TV ( or for you troublemakers, get arrested so much) we almost know it by heart.

In 1963 Ernesto Miranda, a seriously disturbed indigent Mexican with sexual fantasies, was accused of kidnapping and raping a mildly-retarded 18-year old woman. During questioning, Miranda was 'persuaded' to confess. At the trial, his lawyer sought to have the confession suppressed, and in 1968, the Supreme Court ruled the confession could not be used as Ernesto Miranda had not been informed of his rights. Soon after the decision, many police carried the Miranda warnings on a little card to read to suspects. Although many critics feared that crime would run rampant, that did not prove to the be case, especially in Ernesto's. After his first conviction was thrown out on the basis of his confession, he was tried a second time and convicted of the kidnapping and rape. Mr. Miranda must have been proud of his case, because years after the case was decided, he was slain in a barroom brawl. He had a stack of the cards bearing his name with him.

Here is an “official” version of the Miranda warning and Miranda card. If you would like a laminated one, they are $3.99.

Miranda rights stem directly from the 5th Amendment to the Bill of Rights – We all have a constitutional right not to incriminate ourselves. If we know we don’t have to talk to the police when arrested – why are there so many confessions? Even with every ( hopefully every) suspect being given his Miranda warning – you would think they would shut up and no one would confess right? Wrong – despite being given a warning, and professional police departments even use a long written warning that a suspect has to initial --- they confess all the darn time. About 60% of criminal charges are “solved” with a confession in the U.S. Its very complex but there are a variety of psychological reasons people confess without any encouragement at all – Many murderers simply walk into a police station and spill their guts. If the police have a guilty person in the interrogation room – the chances of getting a confession are very good.

As a former prosecutor, I’m very pro-prosecution and I tend to be a  law and order type in general. But, for my friends – I tell them – Don’t talk to the police if for some crazy reason they  have  you in their sights. ( Of course, I am assuming that my friends would never do anything illegal, right? )  Its possible for an innocent person to get tangled up in something when emotions run high, when business deals go bad, or a nasty divorce. If you are not guilty – there is no reason the police need to treat you like a suspect. There is no reason they can’t talk to you on the ohone if  they just need basic facts. If you are not a suspect – they don’t need to know any random private information or anything that you don’t think is directly related to whatever crime they are investigating.

Anyway, back to Miranda. Just like on TV, if you request a lawyer – they have to stop questioning you. I think people have in their mind they can “outsmart” the police or by fessing up, you will get off lighter. Ask any murderer who confessed and now have a life sentence how much it helped them. If you have done something shady, that borderlines criminal activity – talking to the police will only end up getting you convicted – as it should.

I don’t do criminal law if I can help it – but I was reviewing a case lately and just by reading the police report – this man confessed without any pressure. If he had just kept quiet – he wouldn’t be serving 20 years for murder. A lawyer I know had just finished a murder trial. I asked him how it went – and  he said, not well, my client got 40  years. I told  him I was sorry and he wasn’t very upset –“It doesn’t  help when your client tells five people the entire story about how he killed the  guy.”  Not much his lawyer could have done for him at that point. Of course, sometimes even Arkansas cases get overturned on appeal because of Miranda violations.

I’ll talk about search and seizure later --- but I love this ACLU video which discusses your rights in general when you are pulled over.

What To Do When You Are Pulled Over

For a succinct list of key cases on the law of confessions, read the extended entry.


The Hoglawyer
•    Brown v. Mississipi (1936) -- physical coercion violates 4th Amendment
•    Chambers v. Florida (1940) -- psychological coercion violates 4th Amendment
•    McNabb v. U.S. (1943) -- arrestee must be taken before magistrate without delay
•    Ashcraft v. Tennessee (1944) -- psychological coercion not admissible
•    Haley v. Ohio (1948) -- relay teams of interrogators are inherently coercive
•    Upshaw v. U.S. (1948) -- McNabb rule upheld by 5:4 decision
•    Mallory v. U.S. (1957) -- court reaffirms McNabb rule
•    Payne v. Arkansas (1958) -- holding suspect incommunicado is coercive
•    Miranda v. Arizona (1966) -- suspects must be read rights before questioning
•    U.S. v. Ferrara (1967) -- promises of light bail are not necessarily disapproved of
•    Omnibus Crime Act (1968) -- abolishes McNabb-Mallory rule
•    Frazier v. Cupp (1969) -- police can say that an accomplice is cooperating
•    Harris v. New York (1971) -- suspects who were not read their rights but confessed can have their confession used in court to impeach their testimony
•    U.S. v. Arcediano (1974) -- promises for federal instead of state prison approved
•    Beckwith v. U.S. (1976) -- custody, not focus of suspicion, triggers Miranda
•    Brewer v. Williams (1977) -- established functional equivalence test for custody
•    U.S. v. Fike (1977) -- no need to reMirandize suspect unless day(s) have passed
•    North Carolina v. Butler (1979) -- waiver of Miranda doesn't have to be written
•    California v. Braeske (1980) -- request to speak off the record must be honored
•    Rhode Island v. Innes (1980) -- no functional equivalent if police talk to each other
•    People v. Deborah (1981) -- established moonlighting/private security exception
•    Edwards v. Arizona (1981) -- Miranda waived if suspect initiates conversation
•    California v. Prysock (1981) -- Miranda warning don't have to be read ritually
•    Fletcher v. Weir (1982) -- suspect's silence can be used to impeach testimony
•    New York v. Quarles (1984) -- established public safety exception
•    Duckworth v. Eagan (1989) -- Miranda warnings don't have to be read precisely
•    Illinois v. Perkins (1990) -- Police can pose as inmates to extract confession
•    Minnick v. Mississippi (1990) -- Interrogation stops when requesting attorney
•    Pennsylvania v. Muniz (1990) -- Miranda warnings don't apply to drunk drivers
•    Arizona v. Fulminate (1991) -- Coerced confessions don't overturn convictions
•    Davis v. U.S. (1994) -- Suspect must make unambiguous request for attorney



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