I know all police officers are supposed to read you your rights when you are being arrested and charged with a crime. But what happens when the arresting officer says “Do you understand you rights as I have read them to you” and you reply “No?”
I imagine they look at you incredulously for a moment to see if you’re trying to be a smartass, and if it looks like you really don’t understand them, they probably try to explain each right to you in easier terms or something.
Interesting random trivia I heard from a cop a while back: They don’t have to READ you your rights, they just have to make sure you understand your rights. So if they’re arresting, say, a lawyer or something, they can probably get away with not reading the rights. (Of course, if they don’t read someone their rights and the person really didn’t know them, the cops are in trouble)
Find an interpreter? Not everyone speaks fluent English. I’ve been instructed by legal counsel to always say: “Based on the advice of legal counsel, I prefer to make no comment without legal counsel present.”
Cops don’t need to read these rights. However, if they don’t nothing you say can be used in court against you. Thus, SAY NOTHING!
What about if the arrested person is retarded, insane, or senile? Or has some kind of short term memory problem so they can’t keep the string of rights in their head for more than five seconds? Or they were one of those feral children that grew up without any language at all like in that Jodie Foster movie? I’m not being hyperbolic, I’m really curious about this. I suppose if the person was clearly insane they would not have to make sure they understand since the first priority would be subduing them, but what about if the impairment is more subtle (like the Memento hypothetical) and the person was not an immediate danger?
Lawyers?
That’s exactly what i was wondering. If I recall correctly, that was the basis behind the Miranda decision. I was more wondering what procedures the police have in case of a situaton like that.
The police do not have to give you a Miranda warning just because you have been arrested, Miranda is only required prior to questioning or interregation. Being read your rights at the time of arrest only happens on TV for dramatic effect, in the real world it is usually done at the time of booking. If you don’t know your rights, reasonable accomodations will be made whether it be an interpretor, lawyer, mental health specialist, etc.
Not quite. It is true that the police do not have to read your rights to you. But the police do need to ensure that you understand your rights before they question you in a custodial setting.
It’s helpful to think about how this would play out. Assume Hypothetical Joe (HJ for short) is arrested. After his arrest, HJ confesses: “I did, in fact, murder my wife!” His lawyer then begins to look at whether HJ’s confession was legal, or whether there are grounds to challenge the confession.
First ground is failure to explain HJ’s rights to him. The arresting officer testifies, “I have been a police officer for eight months; in that time, I have arrested thirty-seven people. I have a card with the suspect’s rights printed on it. It is my practice to remove that card from my billfold and read the rights to the suspect. When I arrested HJ, I followed my practice: I removed the card from my pocket, read HJ his rights, asked HJ if he understood them. HJ told me that he did.”
Confession’s likely in. So while it isn’t strictly necessary that a cop read your rights to you, it’s an easy way for a cop to establish a practice that will stand up in court as evidence that he did, in fact, read your rights to you.
(There are many, many other bases on which a confession could be tossed out. Or, more correctly, there are myriad ways in which HJ’s constitutional rights could have been violated.)
rfgdxm’s point is the related, but less well-understood, one: you have the right to remain silent. If you exercise your right to remain silent, your words cannot be used against you in court – because you haven’t spoken.
I express no opinion on the quality of rfgdxm’s legal advice to exercise your right to remain silent in any encounter with the police. As always, IANYL, or licensed in your jurisdiction, or cognizant of all facts that would impact the giving of actual legal advice in any situation that remotely resembles anything that’s ever happened to you.
To get back to the OP, though, the question is: what happens if HJ doesn’t understand his rights? If it’s a language issue, an interpreter is brought in. If it’s anything else, we have a split between what ought to happen, and what likely does happen.
What ought to happen (in my opinion and, likely, the opinion of many members of the bar) is that a lawyer ought to be assigned to the suspect; that lawyer can intelligently exercise the suspect’s rights and protect the suspect. We are naive if we believe that this happens with any frequency.
What is more likely to happen is that the suspect is questioned until he confesses. (Obviously, if he doesn’t confess, it’s unlikely to go much farther.) He, like HJ above, then gets a lawyer, who will attempt to have the confession thrown out because in obtaining it, the police violated the defendant’s rights.
This gets particularly interesting in the situation of defendants with diminished mental faculties; someone whose IQ is lower than normal but appears to be functioning at a higher level.
This is where most of my intent was in my question. Wasn’t that the entire basis of Miranda’s case? That he was uneducated and had mental problems? I can’t imagine what the police would do in a situation like this. A psychiatrist wouldn’t seem to help in a case like that.
I am a police officer, and this has happened to me many times over the last 18 years on the job.
This happpens most often with drunk driving arrests. Not because a drunk person can’t understand their rights - they are pretending not to understand so as to delay the breath test in hopes that they will drop under the legal limit. The chances of this happening, of course, are about zero (alcohol just doesn’t metabolize that fast).
If a person tells me that they don’t understand their rights, I just try my best to explain them to them. If an interpreter is needed, I get one. Depending on the circumstances, I may get them in touch with our public defender (this isn’t required, however).
If they continue to insist that they do not understand their rights, I just won’t question them. If the charge is such that I can do so, I book them into jail and someone can see if they are in a more cooperative mood later.
I can’t remember the specifics of Miranda v. Arizona right now, and, frankly, your question goes beyond Miranda and into the law that’s developed since then.
This article may interest you. It addresses the uses for psychological evidence in Washington state, and so touches on some of the points you’re interested in. It makes the point that Miranda requires both a voluntary confession, as well as a knowing and intelligent waiver of rights. In the case of someone with diminished faculties, the discussion would focus around the “knowing and intelligent” prong. I draw your attention to the middle of the article, in particular.
I don’t want to quote the whole article, but it may answer some of your questions. It sounds like the short version is that the cops will do their best to make sure the suspect understands his rights, but ultimately, the court will sort it out by considering the totality of the circumstances surrounding the confession.