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Let's All Play the Quiet Game!

Updated: Jul 3, 2019

**This is the first post in a continuing series about why you really need to stop talking.

I could not begin to tell you how many times I have heard criminal defendants—even prior to becoming an attorney—try to argue their way out of a case in its beginning stages by pointing out that “the officer didn’t even read me my rights.” [Insert facepalm.] We all know them by heart, so please sing along:

“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 those rights in mind, do you wish to speak to me?”

Why does the criminal defendant end up disappointed when he hangs his hat on the hope that the officer “screwed up” by “forgetting” to Mirandize him?

What Miranda v. Arizona Means to You

In 1966, the Supreme Court considered a case brought by a criminal defendant—last name was Miranda, go figure—who had been accused of rape. Miranda had been identified in a police lineup, and while he was in police custody he confessed in a signed statement. As it turned out, he was not aware that he had a choice. The job of the Supremes in this case was to decide whether police had sufficiently informed the suspect of his constitutional rights to remain silent or to consult an attorney prior to gathering that statement. Were the resulting statements then admissible?

This was an essential point, because in earlier cases, the Court had left some confusion as to how Fifth Amendment self-incrimination protections applied to police interrogations. The Fifth Amendment tells us, in part, that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” The answer under Miranda, which (mostly) holds true today, was that this right attached in any situation where a person’s will to remain silent might be overcome by “inherently compelling pressures.” But what does that mean? It means, generally, the police must warn you if they are about to ask you questions while you are in their custody.

Here is where things get tricky for (most of) those people who thought the police screwed up: while the above case is going to protect you from coerced confessions made while under arrest, that same ruling expects the person under interrogation to make a conscious decision about whether they are going to assert that right. More importantly, it also does not apply prior to any arrest or to a noncustodial interview. If you are free to go, there is theoretically no pressure compelling you to talk.

In the case of the afore-mentioned irritated defendants, [made-up figure alert!] ninety-nine percent of these either (1) answered questions prior to being arrested, or (2) just went ahead and told the cops everything they knew without being asked questions. (In a future post, I will talk to you about police questioning after the suspect has been informed of his or her rights.)

Why We Squeal

This is Kansas. We are mostly raised to be cooperative, be polite enough, respect our elders, respect the law, and help others. Even if you are of the mischievous sort, when a police officer shows up at your door (or at your son’s ballgame or at your workplace) and begins asking friendly questions, your inclination is to be helpful. Heck, you might even have something to hide, but darn it we are likable in the Midwest. Bless your little heart, your friendly conversation with the police does not require them to advise you of anything at all.

What about when this “friendly” conversation feels a bit more adversarial? Perhaps you are tangentially related to an even-more-mischievous person who happens to be under investigation. Perhaps now the police show up and they are pretty determined to find out what you know. (Unbeknownst to you, they even suspect you are involved.) Now their tactics are a little less friendly, and they talk to you about the ways this could go badly for you if you are uncooperative. You might be a little bit scared, or you might be only annoyed, but when they threaten to make a scene at your job or they talk about hauling you in on an unpaid fine, you suddenly become ever-so-helpful in telling them everything you know about Mr. Mischief. And it is all usable, no warning required. I sure hope they didn’t charge you.

Now let’s assume you have *allegedly* committed some offense for which you are arrested. Ooo! Let’s pretend you are nineteen and caught *allegedly* drinking at a party. You also have a little bit of weed and an illegal weapon in your backpack! The officer puts you under arrest and places you in the backseat. You are definitely in custody here. And allllllllll the way to the station, you tell the officer your sad story about how your friend gave the weed, you don’t even smoke, and your other friend got you the nun chucks as a gag. The next morning, facing three charges, you tell me the cop didn’t Mirandize you! Doesn’t that mean it gets thrown out?? I don’t know, Enos, did he ask you any questions? No? Then no. Oh, and thanks for signing a statement confessing all your sins even though no one really asked you to.

Shut Up, Dorothy.

Over the course of the next few months, I will talk to you a lot about your basic rights. But rights are not something that are conferred upon you by an officer reading a speech. My friends, the fact is this: whether or not an officer told you so, all you needed to do was click your little ruby-encrusted heels together three times, for you had the power all along. And if you have watched even a few episodes of any one of the hundreds of television or movies set in police departments or courtrooms, you darn well knew it, didn’t you?

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