Miranda - You Have The Right to Remain Silent...But You Have To Know That Yourself Now.

Miranda - You Have The Right to Remain Silent...

But You Have To Know That Yourself Now.

Public trust in law enforcement and the supreme court (lack of capitalization is my choice) has reached what will hopefully be considered an all-time low. In defiance of that idea, on Thursday the court ruled in what will become a landmark case in Vega v Tegoh. The ruling bars lawsuits against law enforcement officers by individuals who were not read their Miranda rights; the set of rights commonly known as "The right to remain silent".

    As they have been misrepresented on television for as long as they have been required, here is the complete text as they are supposed to be read to any individual prior to questioning. (text supplied by Mirandawarning.org)

    “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. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

    As many officers who I have worked with were grossly misinformed as to the intent of Miranda, I feel it is a good idea to explain exactly what Miranda means:

• You have the right to remain silent: Individuals are protected under the Fifth Amendment of the Constitution from self-incrimination. In short, you cannot be made to testify against yourself or be forced to admit guilt.

• Anything you say can and will be used against you in a court of law: Here is the first part where knowledge of the law and your rights are important. There is a difference in responding to direct questions and making a voluntary statement prior to Miranda. In Harris v. New York (1971), the Court ruled that inconsistencies between statements made before Miranda and after were admissible. Known as "Excited utterances", statements that are not in response to questions are admissible and exempt from Fifth Amendment protection.
• You have the right to an attorney: At any time during contact with the police you can ask for a lawyer to counsel you and to protect your rights. Asking for a lawyer is NOT an admission of guilt and cannot be interpreted as one. It is also advisable to decline to answer questions or make statements at that point.
• If you cannot afford an attorney, one will be provided for you. The words "at no charge" are often added. A motion for a public defender is made through the court, and the laws and requirements vary.
• Do you understand the rights I have just read to you? The key word here is "read". Officers were required to read the warning so that no words are changed or subject to misinterpretation. Occasionally on TV or in a movie you will see an officer pull a card out of a pocket. I had mine in my hat, and another copy in my shirt pocket and both were laminated and from the Academy.
• With these rights in mind, do you wish to speak to me? If in doubt, say no. It's that simple.

 

The court’s majority opinion, penned by none other than Samuel Alito, ruled that police officers (i.e. the government, as Miranda is read in court as well) cannot be held accountable for failure to advise individuals of their rights.

The court held that a failure to inform a suspect of the elements of Miranda isn’t a violation of the Constitution itself. As part of the tendency for the current court to take the Constitution as written, the court ruled that as there is no provision in the Constitution, individuals in a position to invoke these rights do not have a right to be informed of the need to do so. A subject making an involuntary or coerced statement not knowing they have these protections still has the remedy of challenge at trial. Once a statement is made, it can be very difficult if not impossible to prove such a statement was forced or obtained illegally without the verifiable time and date Miranda was administered.

Invoking your Miranda rights:

A common misconception among officers and the public is that the reading of Miranda is only done when an individual is subject to arrest. This is not true. Here is the summation of the original case Miranda v Arizona (1966) courtesy of the Cornell Law School website:

 In Miranda v Arizona, the Court held that a defendant cannot be questioned by police in the context of a custodial interrogation until the defendant is made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent.

My summation:

·        In a concept known as “Fruit of the Poisoned Vine” any evidence obtained illegally, as in violation of any law or the Constitution, is inadmissible.

·        According to the original ruling by the Supreme Court in 1966 (The Warren Court in ’66 gets all the capital letters it wants) an officer must read the warning before any questions are posed, or a violation is committed.

·        When an officer does read the Miranda warning, the subject is required to make a clear indication that the statement was understood, and then agree to make a statement or answer questions.

·        This waiver can be revoked at any time, and when it is, the officers must stop any attempts to gather information.

 ·        According to the recent ruling, there is no threat of civil penalty. The protections are firmly based in the Fifth and Sixth Amendments to the United States Constitution. As issues can sometimes be rectified at trial, it becomes a rule of evidence, not a constitutionally provided protection.

 

Bear in mind the concept outlined above in Harris v New York, where if you speak voluntarily, you’re on your own. If the officer doesn’t ask you questions, but engages you in conversation, where is the line between “excited utterance” and “undergoing interrogation”?

 My advice is to make no statements whatsoever.

There are certain questions you must answer, such as supplying your identification. At any point where you feel you might be being pushed to answer questions regarding potential criminal activity, make the statement “I retract my Miranda waiver and will make no further statements”. If the officer responds “I didn’t read you Miranda, you’re not under arrest” do not engage further, and request a lawyer.

Trust me, using this exact statement will expose a dirty cop, because they will then try to coerce further statements, particularly with an accusation of guilt. A statement such as “So, you don’t want to talk? I guess you’re guilty.” Another common ploy is “That’s ok, we have everything we need.”       

Don’t give in. These are the oldest tricks in the book.

What if the subject doesn’t understand the terms, is unable to respond, is confused, or is under the influence of alcohol or drugs? What if the subject doesn’t speak English?

This only applies if the officer reads the warning like he should, as only the penalty has been removed, not the requirement. A language barrier requires an interpreter. Intoxication or an inability to understand what is being said prevents questioning altogether, or should.

I support law enforcement, even if it doesn’t sound like I do. It is my former profession and I am proud of my career choice. I do not “Back the Blue” which to me is too unconditional a statement to make truthfully. I am more along the lines of “When right, to stay right. When wrong, to be put right”.

At a time when the law enforcement community is under fire for ethical violations, to loosen the protections afforded to the general public is inexcusable. It is incumbent on us all to understand these rights have a purpose. Removing the penalty for failure to observe them is unconscionable, as is using that as an excuse to not render the warning at all. Making excuses such as “they should know” or “we don’t have to tell them”, only opens the door for further infringement. Ultimately, an innocent person could lose their freedom. Should the Supreme Court be taking away protections under the law? Thursday and Friday’s rulings lead me to believe that the current court thinks it can and will, and that there is more to come.

Be vigilant. Read. Decide for yourself. Challenge what seems unjust, and defend those victimized.

Further Reading:

http://www.mirandawarning.org/whatareyourmirandarights.html

https://www.law.cornell.edu/wex/miranda_warning

Additional content and clarification derived from here. This specifically explains the ruling itself.

https://www.scotusblog.com/2022/06/tantamount-to-nothing-miranda-rights-cannot-be-wronged/