Miranda: The Warning You Need

In the history of Supreme Court jurisprudence, there is perhaps no greater rights that has been drilled into the minds of the public than those of the “Miranda Warning”. From movies to television shows, Law and Order to CSI, no phrase is more ubiquitous in cop dramas than the warnings enshrined in Miranda. However, these warnings, in their ubiquity are not fully understood by the American public. Such ignorance; the very reason why the Supreme Court enshrined these rights[1], has proven the warnings ineffective at actually informing suspects of what their rights actually mean.
What is a Miranda Warning
The Miranda warning developed from the 1966 case of Miranda v. Arizona[2]. In this landmark decision the Supreme Court consolidated four cases of individuals who, during police interrogations, where not specifically informed of either their fifth amendment right to remain silent[3], their sixth amendment right to counsel[4], or both of these rights. All four cases also involved suspects who sat through between two and fourteen hours of police interrogations before they confessed.

The Court, in a lengthy opinion laid out how; during police interrogations, defendants and suspects are placed in a very adverse position against the state. Police interrogations are designed, and solely function to obtain incriminating information against the suspect. This situation seriously jeopardizes a person’s constitutional right against self-incrimination. Because the stakes are so high, and the possibility of abusive or coercive police tactics are so great, an individual must be informed of their rights prior to a custodial interrogation. Only with a waiver of those rights, once fully informed of them, may a defendant be said to have freely and voluntarily waived those rights thus allowing the state to use the statements against the suspect at trial[5].

The Supreme Court then went on to create, from whole cloth, a new right not enshrined in the Constitution, namely a fifth amendment right to counsel during police interrogation. Generally speaking, ones sixth amendment right to counsel is only triggered when there is a criminal case against a defendant. However, with Miranda, the Court held that during police interrogations of suspects who are not currently defendants, the possibility of self-incrimination was so high, that in order to protect the fifth amendment right against self-incrimination the suspect must have access to a lawyer.

Thus the Court laid out the warning that pop culture has drilled into the American consciousness. When a suspect is subjected to custodial interrogation; prior to the questioning, the suspect must be informed of three warnings. The first warning informs a suspect of their fifth amendment right to remain silent. This generally takes the form of “You have the right to remain silent” This warning is intended to inform a suspect of the gravity of the situation. During a police interrogation, a suspect is faced by state pressure to make incriminating statements against themselves. This warning reminds the suspect of their current position, the state is against them and is looking to use any of their statements against them.

The second warning, preceding from the first informs the suspect that “anything you say can and will be used against you in a court of law.” This warning serves to remind the suspect of the consequences of waving their right to silence, namely that if you chose to speak, any statement you make can and will be used against you. In police interrogation, police are looking for information to use against you. By choosing to speak, you are allowing the state to use any statement you make against yourself.

The third warning serves to remind the suspect of the gravity of the situation. The third warning generally consist of “You have the right to an attorney (during questioning), and that if you cannot afford an attorney, an attorney will be provided for you.” This warning serves to remind the suspect of the severity of the rights at stake. Because the Court feels that the chance of self-incrimination is so high, a suspect has a right to have counsel present during an interrogation. By having counsel present the risk of self-incrimination or police coercion is diminished. The second part of the warning also serves to remind the suspect that because the situation is so grave; and the rights implicated so important, that economic status should not serve as a bar to protecting these rights.

Thus, the scope of the Miranda warning, and the purpose become clear. During a custodial interrogation, a suspect must be warned of their rights prior to the start of the interrogation. If a suspect invokes their right to counsel at any time during the interrogation, the interrogation must cease until counsel can be furnished for the suspect. Interrogation that occurs without first informing the suspect of their rights and obtaining a waiver of those rights, generally results in the suppression of any information obtained from the suspect at trial[6]. However, it is important to note that a waiver of these rights can occur by merely speaking to the police after a warning has been given. It is also important to note that a violation of ones Miranda rights does not mean that the underlying case will be dismissed unless particularly egregious.

Limitation of The Miranda Warning
Miranda was a bombshell for the criminal justice system at the time. Many believed that it would have a devastating effect on law enforcement efforts. The greatest challenge to Miranda occurred in 1968 when Congress, responding to the perception that Miranda would cripple law enforcement efforts passed “Omnibus Crime Control and Safe Streets Act of 1968”. Amongst this massive bill was 18 USC § 3501[7]. This statute allowed for federal judges to admit statements made during custodial interrogation regardless of the presence of a Miranda warning. While originally limited, the statute became more common place as the number of federal criminal prosecutions increased. Finally, in 2000, the Supreme Court addressed this inconstancy with the landmark Dickerson v. United States[8]. In this case, the Supreme Court upheld Miranda as creating a constitutional right that could not be overturned by an act of congress.

However, while Miranda remains the law of the land, its scope has slowly been eroded of the years. The earliest limit on the Miranda rights was established in Harris v. New York[9]. In Harris, The Court held that it was constitutional to use statements made by a suspect during custodial interrogation where a suspect was not given a Miranda warning for purposes of impeaching the defendant’s testimony at trial. That is to say, it is ok to use statements made in violation of a Miranda warning when those statements are only used to show inconsistency in the defendant’s testimony on the stand.

The Court further limited Miranda with Rhode Island v. Innis[10]. In This case the Court limited the definition of “Interrogation”. Under Miranda, a warning is required whenever the police engaged in custodial interrogation. The Court extended the warning to include functional equivalents of custodial interrogation such as asking questions that the police should know are reasonably likely to elicit an incriminating response from the suspect. However, The Court held that “spontaneous” statements made by a suspect after invoking their right to counsel, or prior to receiving their warning are admissible as long as the statement was not given in response to police questioning or other conduct by the police likely to produce an incriminating response.

The Missing Warning[11]
The Miranda warning was intended to adequately inform suspects of the nature and gravity of the situation inherent in custodial interrogation. However, studies have shown that roughly eighty percent of suspects voluntarily waive their rights and speak to the police unrepresented[12]. Waivers occur for various reasons. Some waive their rights because they believe that they can outsmart the police interrogators. Other waive because they believe that they have nothing to hide.

Yet these explanations only account for a certain percentage of waivers. Another reason, perhaps the most powerful reason highlights a crucial deficiency in the warnings given. Many people believe that invoking their right to remain silent will make the police more suspicious of them. It is a simple conclusion to draw but has a profound impact on the effectiveness of the warnings in relating the gravity of the situation for a suspect.

Invoking your right to silence has no adverse evidentiary implications for you. Police cannot arrest you, and cannot bring charges against you solely because you have invoked your right to silence during a custodial interrogation[13]. You literally lose nothing by invoking your right to be silent. Silence is not an indication of guilt. There is no adverse implication that can be drawn against you for remaining silent[14]. It is never advisable to speak to police interrogators unrepresented, and it is rarely advisable to speak to them. Regardless of guilt or innocence, custodial interrogations solely exist to extract incriminating information from you.

Written by Hunter White

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com


[1] See Miranda, 384 U.S. at 467

[2] Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602 (1966)

[3] USCS Const. Amend. 5

[4] USCS Const. Amend. 6

[5] See Miranda, 384 U.S. at 457.

[6] See Miranda, 384 U.S. at 478–79

[7] 18 U.S.C.S. § 3501 (LexisNexis, Lexis Advance through PL 114-221, approved 9/23/16)

[8] Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326 (2000)

[9] Harris v. New York, 401 U.S. 222, 91 S. Ct. 643 (1971)

[10] R.I. v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980)

[11] http://epubs.utah.edu/index.php/ulr/article/viewFile/640/461

[12] Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings, 90 MINN.L.REV. 781 (2006)

[13] Wainwright v. Greenfield, 474 U.S. 284, 106 S. Ct. 634 (1986)

[14] Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965)