Miranda Rights -- Do We Really Know Them?

By Sheila C. Howard, Justice Denied Staff

Anyone who ever watched Dragnet, Perry Mason, Matlock, or any other police or crime TV show, has heard the words of the Miranda warning many times. "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, and if you cannot afford an attorney, one will be appointed for you" ... and variations of it, known as our "Miranda Rights." These Miranda Rights evolved out of the Supreme Court decision in Miranda v. Arizona (1966). The 5-4 majority ruled that incriminating statements or confessions could not be used in a court of law unless we first rescinded our rights and acknowledged that we fully understood them. The court based its decision on the interpretation of our Fifth Amendment constitutional right stating, in part, that we shall not be compelled to witness against ourselves, and on our Sixth Amendment right to counsel. Many viewed, and still view, this ruling as protecting the criminal. After all, Miranda was a confessed kidnapper and rapist set free because he didn't understand the judicial process. In a twist to his story, after Miranda was released and made a few more trips in and out of prison, he was stabbed to death in a bar. Ironically, the sole suspect exercised his Miranda Rights, and was released for lack of evidence. To this day, nobody has been convicted in Miranda's death.

Two years after the Miranda Decision (1968), the Omnibus Safe Streets and Crime Control Act was passed by Congress and signed by President Lyndon Johnson. It began as a way to protect potential victims of the Miranda Decision, to protect the "non-represented" before the court, because many saw it as being detrimental to the interrogatory process. People believed that many criminals would exercise these rights, and that it would result in decreasing the numbers of solved cases. Many Miranda opponents cite statistics of up to a 10% decrease in solved cases, attributing this decrease solely to the warnings. To the contrary, there are many variables. Among them is that interrogated people may have confessed to crimes they did not commit out of fear. This opposition was during the Vietnam Era when random criminal acts of protest by otherwise law-abiding citizens were more common. Let us also not forget that we were at the beginning of the drug era of peace and love, and that our government systems in general became the enemy. Statistically, we can never attribute entire changes to a single law or occurrence, when controversial social issues are also forming in the background.

The Omnibus Crime Control Act of 1968, section 3501, among other things, provides that "a confession ... shall be admissible in evidence if it is voluntarily given." The court authorities must believe, or feel confident, that a confession is made with a lack of coercion or pressure, or promises of leniency to be valid.

For the most part, many believe that this ruling is a cut and dried issue in relation to the Miranda Rights, however this is simply not so. The term "voluntarily" is not quantifiable and has been a continual source of legal revision, constantly being interpreted and reinterpreted.

These variables are often expressed in ambiguous statements such as "Do I have to answer?" "I think I want an attorney," "I'm not sure if I want an attorney," "I can't afford an attorney," "I didn't do it, do I need an attorney?" and others left open to the court to interpret. The court then must decide if the person fully understood his rights, leaving much to speculate and argue about to the courts. The defenses used by those invoking Miranda may at times seem frivolous, but often they are arguably serious issues. Among them may be poor command of the English language, the accused person's cognitive ability, age and general understanding of the legal system. Weak or timid people may continue answering because they do not understand that their statements could be taken out of context and used against them, for they often feel that not answering would make them appear guilty. Casual mention of the death penalty, casual mention that things may not go so well for them, are often all that is needed to coax a confession from a person previously maintaining innocence.

The evolution of Supreme Court rulings can be separated into three distinct classes for use in interpreting these variations in circumstances and statements. At one extreme, it is required that after any vague statements referring to the Miranda rights, ALL questioning must cease. See, e.g., People v. Superior Court, 15 Cal. 3d 729, 542 P.2d 1390, 1394-95, 125 Cal. Rptr. 798 (Cal. 1975) (en banc), cert. denied, 429 U.S. 816, 97 S. Ct. 58, 50 L. Ed. 2d 76 (1976); Ochoa v. State, 573 S.W.2d 796, 800-01 (Tex. Crim. App. 1978).

At the other extreme, it is required that the defendant's reference of the Miranda must be clearly stated before it is recognized as a desire to invoke the Miranda rights. See, e.g., People v. Krueger, 82 Ill. 2d 305, 412 N.E.2d 537, 540, 45 Ill. Dec. 186 (Ill. 1980).

The greatest majority of Supreme Court rulings are interpreted to mean that even after a vague statement is made referring to the Miranda rights, only specific questions may be asked to clarify a person's possible desire to invoke his Miranda rights. See, e.g., United States v. March, 999 F.2d 456, 461-62 (10th Cir. 1993); United States v. Mendoza-Cecelia, 963 F.2d 1467, 1472 (11th Cir. 1992); United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988); United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir. 1987); United States v. Porter, 776 F.2d 370 (1st Cir. 1985) (en banc); Thompson v. Wainwright, 601 F.2d 768, 771-72 (5th Cir. 1979) (en banc); People v. Benjamin, 732 P.2d 1167, 1171 (Colo. 1987); Crawford v. State, 580 A.2d 571, 576-77 (Del. 1990); Martinez v. State, 564 So. 2d 1071, 1074 (Fla. 1990); State v. Moulds, 105 Idaho 880, 673 P.2d 1074, 1082 (Idaho Ct. App. 1983); State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988).

Because of "variability ... of factual settings," the Utah courts concluded, in State v. Pena (Utah 1994), that "discretion" is to be used. Again, however, "discretion" is not a quantifiable standard. Multiplying this variability over a nation translates into hundreds upon hundreds of cases, each with individual circumstances requiring individual interpretation. The general interpretation for most states is that after Miranda rights are invoked, only clarifying questions may be asked, and interrogators may not solicit self-incriminating statements.

One exception to the admissibility guideline is the Supreme Court ruling in Harris v. New York (1971). This ruling allows a confession, regardless of how it's obtained, to be used as evidence in court. The confession may only be used if the defendant chooses to testify at trial, and is allowed as evidence to determine the integrity and dependability of a defendant. This exception encouraged many police agencies to change the practices within their departments to allow continued interrogation well after a person had invoked Miranda Rights. On January 3, 2000, the 9th U.S. Circuit Court of Appeals again ruled that intentional Miranda violations by police were sufficient grounds for a lawsuit. The oxymoron created is that the accused, guilty or innocent, may invoke his Miranda Rights, but continue to be interrogated, and confess to a crime he may or may not have committed. The person may then go to trial, testify on his own behalf, and have his illegal confession used as evidence to negate his honesty. A jury may then believe the illegal confession and find an innocent person guilty. The person charged, whether factually guilty or innocent, may then sue the police department and win a judgment.

Though the Harris ruling is not frequently used in trials, this cannot be interpreted as lack of Miranda violations by various departments. The ruling is not used unless a defendant testifies. The courts do not become aware of Miranda violations in most instances, and police reports of questioning rarely reflect that they have violated any Constitutional Rights.

The United States Supreme Court's decision in United States v. Davis, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994) created a need for each state to reinterpret its case laws to achieve a standard throughout the states:

"We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney," was the decision in part, and clearly allows for broad interpretation. The questioning may continue until the defendant says the magic words, and any variations may be disregarded for the courts' purposes. Davis made statements, some profane in nature and not fully transmitted in court, but the statements in question were vague, requiring that the court determine their admissibility. This ruling now only affects a few states, but the precedent has been set and other cases may soon follow. There may come a day that this interpretation becomes the standard, and only those with legal knowledge or criminal histories will know they must specifically request an attorney. The average citizen or first time offender will not know how to invoke his rights.

Nathaniel Jamar Abraham was an eleven-year-old being investigated for murder and, two days after the shooting, he was questioned in his home with his mother present. The 11-year-old allegedly fatally shot one person and attempted to shoot another. His "expressive language skills" and "abstract verbal reasoning" were not excessively lower than that of his peers and it was concluded that he was not "mentally impaired." However, psychological tests indicated that he "had the intellectual capabilities of a six- to eight-year-old." He admitted he had stolen a rifle, had been shooting at balloons and streetlights, and that he had in fact shot a person. The Court of Appeals concluded that this 11-year-old child, with the mentality of at most an 8-year-old, understood his rights "well enough" when he waived them. People v Nathaniel Jamar Abraham, Mich. App __ (1999), #212099, March 30, 1999.

In light of our lack of protection for minors, it is very possible that a 6-, 7-, or even an 11-year-old can make statements to officers that are considered the sole basis to form intent, and the sole basis to order a death penalty. As a superior nation, we may believe we will never execute a child in such a circumstance, but that day may be near. If we do not have laws that protect a 6-year-old who incriminates him or herself, and do not take into account that a child of this age cannot fully understand the crime he or she committed, then it most certainly will happen. These statutes and rulings do not require that these children have a full concept of murder, or even more than a general idea of what is death. The child is only required to generally understand the Miranda Rights. This is no longer a case about an 11-year-old who committed murder. At issue is whether or not we as a country want to try minors as adults and prosecute them to the full extent of the law, regardless of the sentence. At issue is whether or not we want to use their statements as a legal means to strap them to the electric chair, to a gurney with an intravenous feeding, or another means to carry out death ordered by a state.

Thirty-three years after its passage into law, from generation to generation, the Miranda Rights are still a source of controversy. On the one hand, it seems to be the perfect means of protection for an offender, and seems to be of no benefit to anyone but a criminal. When someone is read his rights, it is a pretty safe assumption that he is under arrest and in police custody. The cases that have needed interpretation are those where there is a suspicion, but not enough evidence, or no evidence at all to enable a jurisdiction to make an arrest. Further questioning may produce results, but the amount and manner of this questioning, for the most part, is not quantified.

On the other hand, if you are not guilty of a crime but are questioned, you may in effect implicate yourself by saying, "Yes, I think I told her I would kill her if she ever did that again." You may implicate yourself by volunteering that you were at a crime scene shortly before the time of death. It is very easy to make statements that can be taken out of context if you are not aware that you are a suspect. Try to imagine yourself as someone whose primary language is not English, or as a child with limited concepts of life, as an adult with limited cognitive ability, or as a wife who has just been battered and is in shock. In these scenarios, perhaps you can easily imagine that you would not react with a clear, concise statement of, "I invoke my Miranda Rights," or "I wish to speak to an attorney." Police procedure is not set up to make you aware of the crime that has occurred, but instead to investigate to see if you are aware of any pertinent facts. People are often not told they are suspects in criminal cases. People are caught unaware under the facade of standard questioning not requiring the reading of Miranda Rights.

What did our forefathers intend when they formed our constitution? They must have known some people would steal for lack of food because their circumstances made it seem they had no alternative. This may have been the premise for courts of law and trials: to allow all to be judged by their peers. It seems many people had varying opinions of "law" and government in general, since many were descendants of the prisoners used to staff the ships that Columbus sailed. Many may have had familial tales of oppression under the Queen's rule, so they may have grasped at John Locke's ideology of freedoms, prosperity and property. Above all, they seemed to put the protection of the masses above the protection of a few.

Few seem to realize that there are negative aspects if we revise our Miranda Rights. It isn't a simple matter to decide what is "voluntary" and what is not. Recent rulings and petitions have the potential to encourage longer and more frequent interrogations, both before and after an arrest. They also have the potential of wearing down younger and weaker people, to exploit the developmentally delayed, and a potential to consume millions upon millions of tax dollars to litigate whether or not people were fully aware of implicating themselves and, in effect, "witnessing" against themselves.

Almost everyone agrees that people guilty of heinous crimes should not go free because we can't use their confessions against them. However, we should not forget that most of our forefathers were guilty of defying the Queen, a crime punishable by death and, knowing they were guilty of these crimes, that did not stop them from doing what they felt was right. There have always been, and will always be, people tried as criminals for doing what they felt was their only alternative. This is why we have a court review by our peers to judge our crimes and to punish us after they've taken all known facts into account. Our forefathers also knew it was probable that people might be at the wrong place at the wrong time and, under the Queen's Rule, would have been presumed guilty.

We may believe it's a far stretch to derive our Miranda Rights from the Fifth Amendment, but without them, we are most certainly compelled to "witness against" ourselves under the imminent pressure of our legal system. This would defy the purpose of our Constitution. Without our Miranda Rights, we risk exploiting the masses to prosecute the few.

Justice Denied