Miranda rights and wrongs

Police officers have read it dozens of times, usually as a suspect is being handcuffed and placed under arrest.

“You have the right to remain silent. Anything you say or do can and will be used against you in a court of law...”

The Miranda warning may seem easy-to-understand, yet a 2011 university study claims nearly one million criminal cases each year may be compromised in the United States because suspects don’t actually understand their constitutional rights under Miranda.

According to Richard Rogers, a psychology professor at the University of North Texas, the public, police, and sometimes courts wrongly believe that people in custody understand their rights.

“Some offenders are street-wise and legally sophisticated, but far more have a limited and often erroneous understanding of Miranda warnings and the underlying constitutional safeguards,” Rogers says.

Miranda v. Arizona

Miranda protections were embedded in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision, which found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for domestic violence.

While the Court did not enumerate the exact wording that was to be used when informing suspects of their rights, the Court did issue a set of guidelines that were to 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 will 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...”

Because the Court did not dictate the exact wording of the warning to be read, Rogers found more than 800 different versions of Miranda warnings in current use by police agencies across the country.

Rogers also found the warning varies in reading level from second grade to a post-college level. “My goal is fairness,” Rogers says. “If you are going to give a warning, then make it comprehensible.”

His point is, you can’t always expect an adolescent or an immigrant or anyone else under stress to understand a college-level warning.

Cases compromised

In his research, Rogers analyzed statistics of 9.2 million arrests nationwide in 2009. He estimates that 10 percent of the cases (976,000 arrests) were compromised by problems of suspects understanding the Miranda warnings. Approximately one-third of the arrests (360,000) were adults with mental health disorders, one-third (305,000) were adults without mental health disorders, and one-third (311,000) were juvenile arrests.

One problem is, suspects often assume they know their rights so they don’t listen when police read them. Plus, the warnings sometimes aren’t explained well by police, Rogers says. As a result, defendants often believe wrongly that their silence can be used against them in court.

This misunderstanding of the right to remain silent was revealed in a survey Rogers devised with true-or-false questions about Miranda warnings that was completed by 119 college undergraduates and 149 pretrial defendants held in jails in Texas and Oklahoma. Survey results showed that 31 percent of the defendants and 36 percent of the undergraduates wrongly believed that their silence could be used as incriminating evidence at trial.

Other erroneous perceptions of Miranda were exposed in the Rogers study. Many people, for instance, believe that if a suspect has requested an attorney the police can resume interrogation of the suspect while they wait for the attorney to arrive.

Also, some suspects don’t realize detectives are allowed to lie during questioning and thus falsely claim that eyewitnesses or other evidence implicates the suspect in an attempt to get the suspect to talk.

Misunderstanding by the public is just one problem with Miranda. Some attorneys believe the original intent of Miranda has been seriously compromised by a recent Supreme Court decision.

Berghuis v. Thompkins

In January 2000, Van Chester Thompkins was arrested as a suspect in a fatal Michigan shooting. Police read Thompkins his rights and interrogation by detectives began. At no time did Thompkins state he was invoking his right to remain silent, nor that he did not wish to talk to the police, nor that he wanted an attorney present. He didn’t say anything at all during first three hours of the interrogation, at least as it related to the case.

Then, the detectives took a different tack. They switched to a spiritual approach by appealing to Thompkins’ conscience and religious beliefs. They asked Thompkins three questions—did he believe in God, did he pray to God, and did he pray to God to forgive him for shooting the victim. The suspect answered “Yes” to each question.

Later, Thompkins’ attorney moved to suppress the answers, claiming that Thompkins had in fact invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied his motion and Thompkins was found guilty by a jury and sentenced to life imprisonment.

In Berghuis v. Thompkins (560 U.S.(2010)), the Supreme Court considered the position of a suspect who understands his right to remain silent but does not explicitly invoke or waive the right.

The Court held 5-4 that unless, or until, the suspect specifically stated that he was invoking his right to silence, his subsequent voluntary statements could be used in court and police could continue questioning. The Court held further that the mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his right to silence. Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.

Justice Sotomayor, writing in dissent, says that “suspects must now unambiguously invoke their right to remain silent—which, counter intuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”

Berghuis is seen by some legal scholars as a symptom of greater Miranda depletion. Harvard law professor Laurence Tribe is one.

“I believe Miranda is gradually being eroded, although the place of Miranda in American legal and popular culture is so firmly established, as the Supreme Court itself recognized in the Dickerson case [Dickerson v. United States, 530 U.S. 428 (2000)], that it’s less likely ever to be overruled outright than simply hollowed out through a piling on of exceptions and qualifications,” Tribe says.

In Dickerson, the Court upheld the requirement that the Miranda warning be read to criminal suspects, and struck down a federal statute that purported to overrule Miranda v. Arizona.

Waiver inferred

Attorney David Rudovsky, of the University of Pennsylvania Law School, also believes that Berghuis is a significant erosion of the rights set forth in Miranda.

“The Miranda Court ruled there was a heavy burden on the state to show a knowing and voluntary waiver of the right to silence, and that Court would have never have approved of a process of ‘inferring’ waiver from silence itself,” Rudovsky says. “In effect, Berghuis flips the burden to the suspect who must now affirmatively state that she does not want to talk to the police.”

Rudovsky believes that Berghuis is just one of many post- Miranda cases that undermine the rule. “What is left of Miranda is up for debate, but in many ways the current rules are a faint shadow of what Miranda imposed,” he says.

Chicago-Kent College of Law professor Doug Godfrey says Berghuis demonstrates how the Supreme Court continues to truncate Miranda. “By holding that the [right to silence] waiver can be implied, the Court has strayed far from the language in the original Miranda decision that said that the waiver ‘had to be clear’ and that the state held ‘a strong burden’ when showing that an individual had waived his rights,” Godfrey said.

Godfrey also says that Berghuis demonstrates something the Miranda Court was very worried about—that of police using sophisticated interrogation techniques against unsophisticated suspects who are being held incommunicado in police custody.

By appealing to the suspect’s religion, the police officer was able to get a statement after more than three hours of interrogation, he says.

“Miranda was aimed at leveling that playing field by only allowing statements after evidence that the individual understood his rights and clearly waived them. Now, that waiver can be implied,” Godfrey says.

While statements taken in violation of the Miranda decision may not be used against the defendant who made the statements in the prosecution’s case, those statements may still be used against a defendant in three ways: to impeach the defendant on cross-examination, in a grand jury or preliminary hearing against him, and if a wrongfully obtained statement leads the police to evidence, that evidence could be used against the defendant at trial. Thus, there is no fruit-of-the-poisonous-tree doctrine for Miranda.

“So, if the police improperly take a statement from the defendant and in that the statement the defendant tells the police where the murder weapon is, while the statement can’t be used as evidence against the defendant, the murder weapon can,” Godfrey says.

Daniel Coyne, a Godfrey colleague at Chicago-Kent and a veteran trial lawyer, doesn’t believe the Miranda protection sky is falling. “An officer still has to stop questioning someone if they say they want a lawyer, or if they say they don’t want to talk to police,” Coyne says. Coyne says the gray area seems to be for that tiny percentage of suspects that might not want to say anything, in which case waiving of rights can be inferred.

“If the suspect then says something inculpatory then Berghuis seems to say that that’s [admissible], because they never told the officer to go away or that they want a lawyer,” Coyne says.

Coyne sees Berghuis more as a refinement than erosion. “The law is a living thing, it keeps evolving,” Coyne says. Coyne says any scholar will tell you that the original Miranda decision needed polishing in term of implementation.

“The justices had the benefit of hindsight—they were not looking through the eyes of officer on the scene,” he says.

In terms of what’s right about Miranda, Godfrey says it has been a powerful device to educate the public about their rights if they are questioned in police custody. “Further, most defendants still make statements to the police, so Miranda has not prevented as much useful evidence from coming into trials as was first feared,” Godfrey says. Miranda will still exist in the future, he says, if only in an abridged form.

Coyne isn’t particularly worried that Miranda is being diluted.

“You’ll always have those protections because you’ve had them for over 235 years now,” he says.


Douglas Page writes about science, technology and medicine from Pine Mountain, Calif. He can be reached at douglaspage@earthlink.net.