The New Miranda Warning

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Category: Constitutional Interpretation, Criminal Law & Process, U.S. Supreme Court
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I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Miranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996). 
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980). 
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney. 
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own. 
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?” 

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.

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16 Responses to “The New Miranda Warning”

  1. Michael Easton Says:

    I think I might need a lawyer. Officer, do you think it would be helpful to me to get one?

  2. Could I please have a telephone book so I can find an Attorney, officer?

  3. Cathy Ritterbusch Says:

    I saw a person being arrested yesterday just a block from where I parked. While driving by, I wanted to yell out to him to keep his mouth shut and not talk to the police no matter what they promised him. But then I wondered, could I be accused of obstructing justice by somehow interfering with the arrest? (I don’t care whether I could be convicted; we all know the accusation is conviction enough.) And then I also wondered, since I am lawyer, whether I could be construed to be giving him legal advice by offering up a “remain silent” shout-out? What do you think, Mike?

  4. Officer testimony:

    As I escorted him into the interview room he seemed nervous. I asked him if he was hiding anything and he said no. He asked me if he could talk to a lawyer so I asked him if his mouth worked. He continued to act nervous so I just kept on asking why he was nervous and what he had to be worried about…. About an hour later he confessed.

  5. Leslie Schmerin Says:

    Cop on tape: I Have to talk to you about the (fill in the blank serious felony). Cop reads Miranda ‘rights’. But the cop just implied he had to talk about the serious felony. Suspect probably doesnt understand these ‘rights’ because of lack of education, intoxicated, high, or too embarassed to admit he doesnt understand so he just waives and starts talking. Suspect denies, cop doesn’t believe him, cop wears down defendant. Cop hints, implies, but falls .10 mm short of promising guy that he will get probation. Cop tells him the best thing he can do is confess. Cop tells suspect what the other suspect said. Then suspect confesses to details that were just supplied by the cop. This is a perfectly proper interrogation in Wisconsin . So much for your Miranda rights.

  6. Michael E: Your question would most definitely NOT invoke the right to counsel.

    Lilly B: Your question probably would not invoke the right either.

    Prof. Hammer: That is the best officer response I’ve ever seen.

    Leslie S: I have seen that trick as well. By first implying that the conversation WILL take place, and THEN reading the rights, the rights are minimized and the suspect will waive nearly every time. Very subtle, but proven to work.

    Cathy R: Obstructing requires giving false information or the intent to mislead, but I wouldn’t be surprised if there is a different crime to cover your set of facts. (Any prosecutors out there have the statute cite?) However, I would think that telling him not to talk WOULD constitute legal advice. And if he took your advice, and clammed-up pre-Miranda, the state might use his silence against him (see #4, above).

  7. I thought this cartoon said it all:

    http://www.courtoons.net/index.php?s=miranda

  8. Tom Kamenick Says:

    Or we could just make everything so much simpler if we went with “ignorance of the law is no excuse, neither is ignorance of your rights.”

  9. Maybe the defense bar should fund a PSA: “The Magic Words: I Assert my Right to Remain Silent, and Give Me the Lawyer that the Constitution Says I’m Entitled to!” I don’t think that constitutional rights of people accused of crimes will become part of the standard high school curriculum anytime soon.

  10. David Ziemer Says:

    You sure are a troublemaker, Cathy.

    I represented Wesela in that case. The remarkable thing is the Miranda holding wasn’t even the worst-reasoned part of the Seventh Circuit’s opinion!

  11. I just listened to an ADA list “and she demanded an attorney” as one of the “aggravating factors” in an OWI arrest in court while I was awaiting a hearing and listening to someone’s sentencing yesterday. Yes, asking for an attorney is used against the accused. I wished the ADA’s eyes had seen my face when she listed it…and I made eye contact with the judge as if it say, “are you kidding me?” I couldn’t help it.

    Great new warning, Cicchini! It underscores the fact that even if one of us were arrested, we probably wouldn’t know what to do.

  12. Are you kidding me? What the is so ambiguous about “Could I get a lawyer?” It’s not like the vendor at the Brewer game is confused when you say, “could I get a hot dog?” Or are hot dog vendors just that much smarter than judges? I may be onto something here . . . .

  13. Or we could just make everything so much simpler if we went with “ignorance of the law is no excuse, neither is ignorance of your rights.”

    It’s very easy to sit outside of this and say that, and I hope that you never get arrested or questioned by the police. But if you do, believe me when I say that you will be both surprised and horrified how easy it is for your rights to get trampled. Short of saying “I hereby invoke my right to counsel under Edwards,” you’re pretty much up a creek without a paddle in most cases, and that’s assuming you have a calm enough mind to recognize how you need to phrase it. Seriously, if you get a chance, sit in on a couple of Miranda-Goodchild hearings and listen to some of the examples the cops ignore, and how well they get away with it. I’ve even seen DAs privately admit that they got lucky in defeating suppressions of confessions.

    I just listened to an ADA list “and she demanded an attorney” as one of the “aggravating factors” in an OWI arrest in court while I was awaiting a hearing and listening to someone’s sentencing yesterday.

    *sarcastically* “Yeah, but see, if it was before they were Mirandized, then they’re just obstructing the officer’s investigation! You’ve got to pick the right time to ask!”

    I mean, in all fairness, I’ve seen a lot of cops who do their very best to clearly deliver Miranda warnings and who will err on the side of caution when they give a borderline statement. Then again, when you give suspects time to sit, they’re more likely to recognize they’re better served by not saying anything, so you get the statements as fast as you can. It’s hard to fault cops for doing their job, not when it’s our job as defense attorneys to get the bad confessions thrown out. I just wish so many judges didn’t just give cops the benefit of the doubt.

  14. Tom Kamenick Says:

    I realize my view is not popular in the legal world, Andrew, but please do not assume that it has been reached through ignorance of the realities of the system.

    Yes, state actors do sometimes trample on the rights of defendants, but criminals trample on the rights of victims with much more alarming frequency (and more damaging effect), and sometimes without knowing that what they are doing is illegal. We don’t let them off if they didn’t know their action was illegal (generally speaking).

    I don’t think state officials who violate defendants’ rights should be let off either, but I have never agreed with letting the criminal off being the proper remedy for the state official’s violation.

  15. Andrew Golden Says:

    Yes, state actors do sometimes trample on the rights of defendants, but criminals trample on the rights of victims with much more alarming frequency (and more damaging effect), and sometimes without knowing that what they are doing is illegal. We don’t let them off if they didn’t know their action was illegal (generally speaking).

    Many of the crimes on the books in Wisconsin require intent, which you know means “deliberately doing X or acting with the knowledge that X was practically certain to cause the result.” So, yeah, we actually do let many people off — be it by declining to prosecute or securing acquittals — if they don’t know that their action was illegal when they did it, because the latter isn’t the easiest thing in the world to prove.

    I don’t think state officials who violate defendants’ rights should be let off either, but I have never agreed with letting the criminal off being the proper remedy for the state official’s violation.

    You tell me not to assume that you’re ignorant of the realities of the criminal system, but how can you expect me not to challenge your knowledge of it when you say things like that? Since when is someone a criminal until proven innocent? That’s the exact opposite of the way our system runs. Furthermore, I can’t even begin to tell you the number of times I’ve seen clients charged with, say, Possession With Intent to Deliver when they were really only guilty of Possession because the cops say something like, “Well, you don’t have a job, and you have all this weed. What were you going to do when your rent comes due? Sell it?” and the client, not recognizing where that’s leading, says, “I don’t know. Maybe.” And on that hypothetical, the cops argue we have intent to distribute.

    Again, I’m not demonizing cops or DAs for going forward with these cases. They’re doing their jobs. But for you to suggest that somehow a coerced or otherwise illegal confession should still have an effect because “Hey, he said he did something wrong!” indicates that you do have a certain degree of ignorance of this particular subfield. Not all subfields, and not law in general, but just this topic. I’ll say it again: sit in on a few Miranda-Goodchild hearings, listen to the way the dialogue goes, and then come back and tell me “ignorance of your rights is no defense.”

  16. I say “letting the criminal off” instead of “letting the guilty off” for a very good reason. You’re a criminal if you commit a crime, regardless of whether you are caught and successfully prosecuted. The point is that in all but the very rarest cases, suppression only directly benefits (as opposed to the unmeasurable indirect benefit of deterring police misconduct) criminals who actually committed the crime they are being charged with.

    As a practical matter, when the police violate constitutional rights, whether that’s through a Miranda violation, search & seizure violation or otherwise, the most common “remedy” in almost every situation is letting a criminal escape punishment.

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