A Poll on Perceptions of Miranda Rights

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.)


[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.


Since this has stopped being a poll, I shall move this from IMHO to Great Debates.

FWIW, I just re-read Patane and Elstad 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?

  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.

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?

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.

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.

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

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.

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.

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?

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:

Bradley v. Ohio, 497 U.S. 1011 (1990).

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?

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.

Oops. Last post should have read:

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.

Richard that is not quite the same thing as you are claiming nor is it based on the XIVth Amendment.

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

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]

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.

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, [1987] 1 S.C.R. 1233 at para. 23:

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© 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!

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.

The concurrence agrees with the rule I stated.