# A Poll on Perceptions of Miranda Rights **URL:** \ **Category:** Great Debates\ **Created:** [December 9, 2007, 6:28am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363 "2007-12-09T06:28:53Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 5:06pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/21 "2007-12-09T17:06:38Z")
Ok, I think I’ve gotten enough answers to justify my side of the argument. Thanks. Let’s stop spoilering now. [QUOTE=twickster] Damn – didn’t realize I was so ignorant. Are you going to give us the answers? (I went immediately to reply mode, per your instructions.) [/QUOTE] The correct answers are in my second post, **twickster**. On to the details… **Bricker** , you are correct if you’re saying that after ceasing interrogation, and after a significant period of non-interrogation, the police can question you about a different crime. If you’re saying something else, I don’t think you’re right according to the explicit holding of _Mosley_. Obviously you can waive your right and resume talking if you choose. **Askeptic** , the 14th amendment due process clause is still applicable to the voluntariness of statements. \*See \*_Miller_, _Schneckloth_, etc. As for the admissibility of evidence obtained as a result of confession, we seem to disagree. Have I misread _Patane_? Please explain. (Mods feel free to move this to GD to the extent there is a legal debate.) ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 9, 2007, 6:18pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/22 "2007-12-09T18:18:50Z")
OK. [spoiler]1) When, if ever, must the police warn you of your Miranda rights? **When they begin asking you questions, but after they have arrested you.** 2) What is the legal consequence of their failure to do so? **They can’t use what you say, or anything they find as a result of what you say, in court. (Unless they would have found it anyway.)** 3) If you invoke your right to remain silent, must the police stop questioning you? **Yes, immediately.** Regards, Shodan[/spoiler] ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [December 9, 2007, 6:19pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/23 "2007-12-09T18:19:31Z")
[QUOTE=Richard Parker] Ok, I think I’ve gotten enough answers to justify my side of the argument. Thanks. Let’s stop spoilering now. The correct answers are in my second post, **twickster**. On to the details… **Bricker** , you are correct if you’re saying that after ceasing interrogation, and after a significant period of non-interrogation, the police can question you about a different crime. If you’re saying something else, I don’t think you’re right according to the explicit holding of _Mosley_. Obviously you can waive your right and resume talking if you choose. **Askeptic** , the 14th amendment due process clause is still applicable to the voluntariness of statements. \*See \*_Miller_, _Schneckloth_, etc. As for the admissibility of evidence obtained as a result of confession, we seem to disagree. Have I misread _Patane_? Please explain. (Mods feel free to move this to GD to the extent there is a legal debate.) [/QUOTE] Since this has stopped being a poll, I shall move this from IMHO to Great Debates. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 6:32pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/24 "2007-12-09T18:32:02Z")
FWIW, I just re-read [Patane](http://supct.law.cornell.edu/supct/html/02-1183.ZS.html) and [Elstad](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=470&invol=298) on the issue of evidence-exclusion. They both make it very clear that evidence gained as a result of unmirandized statements \*\*can \*\*be used, so long as the statements are not compelled in violation of the 14th amendment. It’s an interesting result. I think it makes a certain amount of sense from a textualist perspective, but also seems to really erode the deterrence value of Miranda. Now that we’re in GD, do you think any of this matters? Is it important for people to understand these rights or does it not matter in the same way that not understanding the intricacies of product liability doesn’t matter? ---
**Author:** ![Menocchio](https://avatars.discourse-cdn.com/v4/letter/m/9de053/32.png) [@Menocchio](https://boards.straightdope.com/u/Menocchio)\ **Post date:** [December 9, 2007, 6:35pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/25 "2007-12-09T18:35:59Z")
1. When, if ever, must the police warn you of your Miranda rights? When you are arrested. 1. What is the legal consequence of their failure to do so? Anything you say, as well as evidence derived from what you said, is inadmissible in court. The police may also be liable for civil damages 1. If you invoke your right to remain silent, must the police stop questioning you? Immediately. You have to be explicit about it though. Being reluctant isn’t the same as refusal. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 9, 2007, 6:54pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/26 "2007-12-09T18:54:02Z")
On a related topic, can the police try to talk you out of invoking your rights? I’ve seen it on TV shows where a suspect requests a lawyer, and the cop says something like “You don’t want that. Once the lawyers come in then we can’t give you this good plea bargain. If you call a lawyer it’s all over” Is that legit, or is the word “lawyer” a magic word that forces them to shut their traps immediately? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 9, 2007, 7:08pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/27 "2007-12-09T19:08:15Z")
[QUOTE=Richard Parker] 1. When, if ever, must the police warn you of your Miranda rights? [/quote] They don’t ever have to, but they generally do so if they are going to arrest you. The reason it is SOP is the answer to the next question. > [@](#): > > 1. What is the legal consequence of their failure to do so? Any information they get can be ruled inadmissible in court, if it is made clear that the defendant did not know his rights. However, it’s not automatically thrown out. The defense has to show that the defendant did not know his rights. If the cops tell him what those rights are, it would be hard to prove that he didn’t know. > [@](#): > > 1. If you invoke your right to remain silent, must the police stop questioning you? Not sure if you mean they can’t question you about something else or they have to stop questioning you about anything. I would assume they could continue questioning you if they were asking you about a different issue ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 7:15pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/28 "2007-12-09T19:15:03Z")
[QUOTE=jtgain] On a related topic, can the police try to talk you out of invoking your rights? I’ve seen it on TV shows where a suspect requests a lawyer, and the cop says something like “You don’t want that. Once the lawyers come in then we can’t give you this good plea bargain. If you call a lawyer it’s all over” Is that legit, or is the word “lawyer” a magic word that forces them to shut their traps immediately? [/QUOTE] Once a lawyer is requested, interrogation must cease until a lawyer arrives, unless you voluntarily initiate further communication. Interrogation includes words or actions on the part of police officers that they should know are reasonably likely to elicit a statement. This ought to include coercion based plea bargaining. However, my understanding is that, in practice, lower courts often allow this–but I don’t know much about what happens in practice. > [@John Mace](#): > > Any information they get can be ruled inadmissible in court, if it is made clear that the defendant did not know his rights. However, it’s not automatically thrown out. The defense has to show that the defendant did not know his rights. If the cops tell him what those rights are, it would be hard to prove that he didn’t know. It is the burden of the prosecution to prove that you’ve waived your rights, not the defense. And it is a heavy burden. That’s why they usually get it in writing. It isn’t a legal requirement, but it is much tougher to establish waiver without getting it on paper. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [December 9, 2007, 9:00pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/29 "2007-12-09T21:00:11Z")
Here’s a question for the legal experts. It’s based on my own experience but I’m not looking for legal counsel just general knowledge. I work in a prison. I’m not a police officer but I am a law enforcement officer. A prisoner commits a serious crime like assault or rape. I interrogate him and get information from him about the crime he committed. I call the police and give them the information I gathered. They come in and take over the case. Now I can tell you that prisoners are virtually never mirandized before these in-house invesigations (or offered any legal assistance). As a law enforcement officer, I can’t be covered by the same “ignorance is bliss” umbrella that a civilian has. And when the police come in they will immediately go to the suspect I’ve identified and begin charges against him based on the information I obtained, so there’s no question of them having conducted an independant investigation. So how is this not a violation of their Miranda rights? I figure that the legal point is that we didn’t formally arrest the prisoner before we interrogated him. But as a prisoner, he wasn’t free to walk away like a unarrested suspect on the street would have been. The only other thing I can think of is that any person who’s been convicted and sentenced to prison can be assumed to have been arrested and mirandized at some point so he theoretically still knows that he has the same rights he had back when he was first arrested. Or is there some other legal aspect I’m missing? Are there rulings that address this issue? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 9:25pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/30 "2007-12-09T21:25:34Z")
[QUOTE=Little Nemo] Are there rulings that address this issue? [/QUOTE] It is a gray area of law, on which the Supreme Court has not directly ruled. So the current law will depend on your jurisdiction. In a dissent to the denial of Supreme Court review of this issue, Justice Marshall wrote: > [@](#): > > To determine whether a person is in custody for purposes of Miranda, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” This Court recently left open the question whether “the bare fact of custody [would] in every instance require a warning even when the suspect is aware that he is speaking to an official.” In my view, Miranda and its progeny have already answered that question. In this case, petitioner was clearly in custody because he had been formally arrested. Moreover, his incarceration resulted in a severe restraint on his freedom of movement. That his incarceration was the result of a conviction for a crime unrelated to the murder of the prison employee is irrelevant. > > The state courts here, like some circuit courts, nevertheless maintained that a prison inmate is in custody for purposes of Miranda only if some additional restriction on his freedom of movement is imposed. Even if this “additional restriction” test were consistent with Miranda, petitioner satisfies it: his freedom was curtailed more severely than was usual even in the controlled environment of prison – he was detained in the sheet metal shop, targeted as a suspect in a serious crime, and forcibly strip searched. > > …The questioning of petitioner, directed at discovering whether he had committed the crime, thus went well beyond “on-the-scene questioning.”… > > Thus, petitioner was in custody, was interrogated by prison officials, and was subjected to police coercion. Because the guards did not inform him of his Miranda rights before interrogating him, his responses to their direct questioning could not be used against him at trial. This case represents more than an opportunity to correct an erroneous decision, however; it provides the Court a chance to clarify what constitutes “custody” for Miranda purposes in the prison setting. I would therefore grant the petition for certiorari. (Citations omitted) Bradley v. Ohio, 497 U.S. 1011 (1990). ---
**Author:** ![j666](https://avatars.discourse-cdn.com/v4/letter/j/9de0a6/32.png) [@j666](https://boards.straightdope.com/u/j666)\ **Post date:** [December 9, 2007, 10:21pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/31 "2007-12-09T22:21:09Z")
My understanding, with no research, is: 1. When, if ever, must the police warn you of your Miranda rights? The police must warn you before questioning you as a _suspect_. 1. What is the legal consequence of their failure to do so? Any statements made, and any evidence collected as a result of those statements, can be challenged as inadmissable at a trial. 1. If you invoke your right to remain silent, must the police stop questioning you? Yes, and they hate that. When are you going to let us know the poll results? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 10:33pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/32 "2007-12-09T22:33:49Z")
[QUOTE=j666] When are you going to let us know the poll results? [/QUOTE] I didn’t plan to compile the results of the poll, but here’s my impression of the common misunderstandings: \*You must be mirandized at the time of arrest (though many dopers knew this to be false). \*There is some punishment for police who disobey this beyond just not being able to use the testimony. \*That they cannot use evidence obtained this way (even some of the board lawyers thought this was true). \*That the police can continue to question you after you invoke your rights. For the correct answers, see post #3. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 9, 2007, 10:41pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/33 "2007-12-09T22:41:10Z")
Oops. Last post should have read: > [@](#): > > \*That they cannot use \*\*physical \*\*evidence obtained this way (even some of the board lawyers thought this was true). ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 9, 2007, 10:46pm UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/34 "2007-12-09T22:46:48Z")
Okay…[spoiler]1. Before interrogation. They’re likely to ask you to sign a waiver indicating that you’ve been informed of and understand your rights. Whether or not you’re informed at the time of arrest, they’ll give the reading later on. 1. Your responses to direct questions _before_ you receive Miranda might be thrown out, assuming you have a good attorney and sympathetic judge, though anything you volunteer is fair game. 2. Yes, though you should actually remain, y’know, silent, i.e. beyond repeating that you’ve stopped answering questions and you want an attorney, say nothing.[/spoiler] Now to see how close I was. I’m Canadian, incidentally. ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [December 10, 2007, 12:38am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/35 "2007-12-10T00:38:38Z")
[Quote=Elstad] The Self-Incrimination Clause of the Fifth Amendment does not require the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the suspect [/quote] Richard that is not quite the same thing as you are claiming nor is it based on the XIVth Amendment. ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [December 10, 2007, 12:40am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/36 "2007-12-10T00:40:25Z")
I am a legal ignoramus for the most part. Posting before reading thread. **1) When, if ever, must the police warn you of your Miranda rights?** When they arrest you and charge you with a crime. \*\*2) What is the legal consequence of their failure to do so? \*\* It is my understanding that if they fail to explain your ‘Miranda’ rights to you, they cannot use statements that you subsequently make against you in court. I have the vague notion that there may now be exceptions or more narrow interpretations of that. **3) If you invoke your right to remain silent, must the police stop questioning you?** Not at all. It’s _your right_ to remain silent, not _their obligation_ to do so. I’m under the impression that you can legally backtalk them, e.g., “I’m not answering anything until you get that damn light out of my face and give me somewhere comfortable to sit down”, or say “Buzz off” and curl up on the desk and go to sleep, but that legally they can definitely keep asking you questions. Practically and pragmatically I’m not sure how safe it is to be abrasive to them but it’s probably safe to simply tune them out and not answer anything at all ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [December 10, 2007, 1:02am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/37 "2007-12-10T01:02:11Z")
Posting first, then reading later.[spoiler]1. They must do so before questioning you. When I used to work with the police (I was night security on campus) and the few times they arrested people while I was there, they read the person their rights immediately. One officer said he does this routinely at arrest not because it was an exact requirement, but because he wanted to get it out of the way. They also said that there isn’t a requirement for traffic stops, and one officer routinely had a hidden tape recorder going. He would ask if the person knew they were speeding or how fast they were going, and would tape the “confession.” 1. Your statements cannot be used in court. However, if you voluntarily say sometime before they have a chance to give you your rights then that statement can be used. For example, if you rush into a police station and say you just shot someone, that statement can be used. 2. I believe they must stop. Even if they don’t, you should continue to refuse to answer any question. [/spoiler] ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [December 10, 2007, 1:03am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/38 "2007-12-10T01:03:56Z")
Richard: As for Patane, you are basing your conclusion on Dicta. Only three justices (Thomas, Scalia and Rehnquist, big surprise) stated what you claim to be the case. The other justices did not join that portion. While the court did overturn the case it was not necessarily based on the language you are relying on. Rehnquist started this erosion of Miranda by declaring it a prophylactic rule. I agree that physical evidence discovered as a result of a voluntary unMirandized statement may be introduced at trial. The argument of course is what is a voluntary statement and a strong argument that it is not is if you invoke your right to remain silent and the police keep questioning you while you are in custody. It can often be successfully argued that the coercive nature of such tactics require the application of the poisonous tree doctrine to exclude the physical evidence thus discovered. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [December 10, 2007, 1:42am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/39 "2007-12-10T01:42:49Z")
[QUOTE=Bryan Ekers] Now to see how close I was. I’m Canadian, incidentally. [/QUOTE] In a Canadian context, **Bryan** , your 1 and 2 seem okay, but your answer to 3 is off. This is one way in which Canadian criminal law differs from that of the United States. From [R. v. Manninen](http://csc.lexum.umontreal.ca/en/1987/1987rcs1-1233/1987rcs1-1233.html), [1987] 1 S.C.R. 1233 at para. 23: > [@](#): > > Further, s. 10(b) [of the _Canadian Charter of Rights and Freedoms_] imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee **until he has had a reasonable opportunity to retain and instruct counsel**. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice **before he is questioned or otherwise required to provide evidence**. Emphasis mine, and this is only an excerpt. What _Manninen_, as well as a few other cases, stand for is the idea that once the police have advised the Accused of his or her right to silence and to a lawyer, they can question all they wish, regardless of whether the Accused asserts his or her right to silence. Only if the Accused asks to be able to reach a lawyer, the police must stop questioning and give him or her a “reasonable opportunity” to contact one. Once that has happened, the police can continue questioning. Now, the things the police can do next are spelled out in many cases as well; too many to go into here. And it is important to note that the Accused always retains his or her s. 11(c) _Charter_ right to remain silent, so while the police can question all they want, they can’t make the Accused talk if he or she does not wish to. But the important point in that in Canada, there are no magic words or invocations of constitutional rights that will make the police stop questioning. In fact, according to my Criminal Procedure professor and confirmed by a police officer in my Crim Pro class, saying “Hey you have to stop questioning when I invoke my rights!” will usually result in something like “You’ve been watching too many American cop shows. Now, what were you doing at the…?” And my Crim Pro final is this Friday. Wish me luck! ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 10, 2007, 3:08am UTC](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363/40 "2007-12-10T03:08:15Z")
[QUOTE=askeptic] Richard that is not quite the same thing as you are claiming nor is it based on the XIVth Amendment. [/QUOTE] That isn’t the part of Elstad I was citing, and I didn’t say it was based on the 14th. You’re conflating two things I said. I said that the 14th is still applicable to the voluntariness of statements generally, that’s all. > [@askeptic](#): > > Richard: As for Patane, you are basing your conclusion on Dicta. Only three justices (Thomas, Scalia and Rehnquist, big surprise) stated what you claim to be the case. The other justices did not join that portion. While the court did overturn the case it was not necessarily based on the language you are relying on. Rehnquist started this erosion of Miranda by declaring it a prophylactic rule. I agree that physical evidence discovered as a result of a voluntary unMirandized statement may be introduced at trial. The argument of course is what is a voluntary statement and a strong argument that it is not is if you invoke your right to remain silent and the police keep questioning you while you are in custody. It can often be successfully argued that the coercive nature of such tactics require the application of the poisonous tree doctrine to exclude the physical evidence thus discovered. The concurrence agrees with the rule I stated. [Previous page](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363.md?page=1) [Next page](https://boards.straightdope.com/t/a-poll-on-perceptions-of-miranda-rights/429363.md?page=3)