Misconceptions about Miranda

Mirandizing suspects is one of the most recognized of police actions, but also one of the least understood. Many people have numerous misconceptions about how the Miranda rule applies, typically gleaned off television or movies.

Now I’m sure we all know an adaptation of the Miranda rule. It states that you have the right to remain silent, that anything you say can and will be used against you in a Court of Law, and that you have the right to speak with an attorney and have that attorney present during questioning – i.e. “shut up and lawyer up”.

But the one part of the Miranda rule many miss or conveniently forget is the requirement that the suspect be asked if they understand their rights and if they elect to waive them. It’s one of the principle reasons why the Boston Marathon bombing suspect wasn’t Mirandized when he was originally apprehended, as to be Mirandized you have to first be conscious.

So when does a person have to be Mirandized? Must it occur at time of arrest, or can it occur at some later time? Easily this is the largest misconception about Miranda that most people have, as many think it must happen at time of arrest. And the fallacy goes that if you are not Mirandized the moment the police take you into custody, then the arrest is invalid and the suspect walks and everything will be thrown out of Court.

This becomes the case particularly where a suspect is being far from cooperative and the officer may not get the chance to Mirandize a suspect at time of arrest. Do you really think a Court is going to just let a suspect walk because his resistance meant the officer could not Mirandize him on the spot? It doesn’t happen.

But this also stems from the mistaken belief that the Miranda rule is about arrests, and that isn’t the case. Nowhere in Federal jurisprudence will you find the Miranda rule applied to the arrest. Instead the Miranda rule applies only to interrogations and applies the Fifth and Sixth Amendments to the interrogation by requiring you be informed that you cannot be forced to incriminate yourself and you have the right to consult counsel, who can better protect you from incriminating yourself. In other words the police have to tell you that you have the right to “shut up and lawyer up”.

Now if the police never talk to the suspect between the arrest and arraignment, the suspect may not be Mirandized until the arraignment. This is something that doesn’t happen often, especially in cases involving felony charges, but it can happen. And if the suspect is never Mirandized because he was never questioned, no harm has been done. But the arrest is not deemed invalid because the suspect was not Mirandized. Prior to or at the arraignment it will be determined if the suspect is in need of counsel and he will be given the opportunity to consult with counsel to ensure he understands the charges that have been presented by the Court.

Now what about this “public safety exception” that the FBI is supposedly invoking with the Boston Marathon bombing suspect?

The exception applies to circumstances wherein public safety is an overriding circumstance to whether a suspect must be informed of the Miranda warning – i.e. cases where the information the person may have is of such vital importance that protocol can be broken and the Miranda rule set aside.

In the case from which the exception is derived, a suspect in custody had a visible, empty holster on his person, leading officers to believe he had stowed the firearm somewhere in the store where he had been apprehended. The suspect was questioned without first being Mirandized, and the suspect gave up the location of the gun. As the suspect had not been Mirandized, the statement and any evidence stemming from the statement were successfully challenged.

The Supreme Court of the United States, however, determined that there was an overriding public safety need – i.e. locating and securing a rogue firearm – that warranted the officers questioning the suspect without having Mirandized him first. Some facts regarding the interrogation, however, that are pointed out in dissenting opinions to that Supreme Court case raise the question of whether such an exception is warranted.

The FBI has taken it upon itself to broadly interpret this exception when the cases they are investigating involve terrorism. As the Boston Marathon bombing has been labeled a “terrorist incident”, the FBI has invoked the public safety exception.

Now the exception does not mean a suspect cannot invoke their rights. It means only that the requirement he be informed of them does not apply.

No suspect can be forced to incriminate himself, and any suspect can request a lawyer at any time. This means the suspect most certainly can invoke their rights at any time after being detained or arrested by police. Nothing stops the suspect from doing so, not the public safety exception, not anything. Not being informed of your rights does not mean you do not have them and cannot invoke them. If the suspect “shuts up and lawyers up”, regardless of whether he’s been Mirandized or not, the interrogation is over unless the suspect actually talks, in which case, anything the suspect says can and will be used against him.

This is actually a good lesson for everyone, and is the one thing I constantly see written by defense attorneys with regard to criminal suspects: if you are arrested by the police, shut your fucking pie hole! Okay perhaps they don’t use language quite to that degree – unless they’re writing on Craigslist or something like that (here and here) – but the sentiment still applies.

The only thing you should say to the police is “I will not make any statement till I’ve spoken with a lawyer”. And anytime after the arrest the police attempt to ask you anything, just repeat “I will not make any statement till I’ve spoken with a lawyer”. And then when you actually talk to an attorney, speak only when the attorney says to do so.

So with the Boston Marathon bombing suspect, he is apparently awake and cooperating according to reports, though he apparently has yet to be Mirandized. But he can invoke his Miranda rights at any time, whether he has been Mirandized or not. The “public safety exception” just means that anything he said that incriminates himself may or may not be admissible against him in Court.