Written by attorney Brian Jay Smith

Miranda, Police Interrogation and Why You Should Exercise Your Right to Counsel

The Recitation of Your Rights

Even though you might never have been arrested, you know what your rights are. You hear them on TV and in the movies. The recitation of rights takes many forms, however, the standard recitation of rights goes something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak with an attorney before questioning and to have that attorney present during any questioning. If you cannot afford to hire an attorney, one will be appointed prior to any questioning. You can decide at any time to exercise these rights and decide not to answer any questions or make any statements. Do you understand these rights as I have explained them to you? Do you wish to waive these rights and speak with us now?

The Fifth Amendment to the United States Constitution

These rights primarily come from the Fifth Amendment. The Fifth Amendment states, in relevant part, that, “…[No person] shall be compelled in any criminal case to be a witness against himself…" This means that, at a criminal trial, the prosecutor cannot force you to take the witness stand and testify against yourself. It also means that a confession to a crime cannot be forcibly extracted from you and introduced into evidence at trial.

Miranda v. Arizona

In 1966, the United States Supreme Court decided a case from Arizona. The case was Miranda v. Arizona, and it involved the Fifth Amendment to the United States Constitution.

Ernesto Miranda was arrested for the kidnapping and rape of an 18-year-old woman. After two hours of interrogation, he signed a confession to the rape on a form that had typed at the top, “I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me." He was never told that he had the right to contact an attorney or to have that attorney present during the interrogation. His attorney argued that he did not voluntarily, knowingly and intelligently waive his Fifth Amendment right against self-incrimination. The trial court refused to suppress his confession. Miranda was convicted and sentenced to prison for 20 to 30 years.

The Arizona Supreme Court affirmed his conviction, relying on the fact that Miranda had never asked for an attorney.

The United States Supreme Court reversed the Arizona Supreme Court, holding that both inculpatory (establishing guilt) and exculpatory (establishing innocence) statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them. Only if there is a voluntary, knowing, and intelligent waiver of these rights can authorities question a suspect without counsel being present and introduce at trial in the case-in-chief any statements made during the interrogation.

Miranda was retried in 1967, convicted and sentenced to serve 20 to 30 years.

Police Interrogation Techniques

You would be a fool to think that the police do not receive training on how to interrogate suspects. They receive interrogation training at the police academy. Their techniques are further developed during their in-field training during their first few months on the force. They attend additional classes on interrogation throughout their careers.

Police agencies have been around since the before the founding of this county. Early on, it was not uncommon for confessions to be extracted through physical coercion. However, today, the police implement modern interrogation techniques.

A Nine-Step Program for Police Interrogators

John E. Reid developed a nine-step interrogation technique that is implemented by police agencies throughout the country. Even though your local police agency might not use this exact technique, you can be sure that they use something like it or maybe an improved version. These nine steps are:

  1. Direct Confrontation. The interrogator lays out the evidence that led to the suspect’s arrest, and then offers the suspect an early opportunity to confess.
  2. Deflection. If the suspect does not immediately confess, the interrogator suggests that some other person or set of circumstances forced the suspect to commit the crime, this providing the suspect with moral justification for his/her actions.
  3. Dominance. The interrogator insists on doing all the taking, laying out various scenarios to explain how the crime may have occurred. By prohibiting the suspect from responding, the interrogator gives the suspect little or no chance to deny guilt (Once denials start, a confession becomes increasingly difficult to obtain) as well as few opportunities to demand an attorney.
  4. Turning Objections into Justifications. At this point, the suspect will give some character-based reason why he/she could not have committed the crime (“I hate violence!"), which a trained interrogator can then twist into an acceptable excuse for why the suspect did what he/she is accused of (“So you really didn’t want to kill him, did you?")
  5. Expressing Empathy. The interrogator continues to express empathy for the suspect, suggesting that he/she would have reacted just like the suspect did under similar circumstances. Again, the idea is to offer the suspect an opportunity to justify the crime within some socially acceptable framework.
  6. Offering Alternative Themes. Often, at this point in the interrogation, the suspect becomes quiet and submissive. The interrogator should now offer a number of alternative “themes" or scenarios—along with possible motives—and observe which gets the most response from the suspect.
  7. Posing the “Alternative Question." Once a likely scenario has been established, the interrogator offers two scenarios, the major difference being that one has a more socially acceptable motive than the other. (e.g., “You hated her," vs. “She gave you no choice.") At this point, the suspect will usually select the “safer" option, but either way, guilt has been admitted.
  8. Repetition. The interrogator has the suspect repeat the confession in front of one or more new witnesses, such as other police officers.
  9. Documentation. The interrogator orders the confession written up and then signed by the suspect as quickly as possible.

Additionally, interrogators read subtle changes in body language, including eye movements that can be telltale signs of lying, evasion or insincerity.

A Scary Erosion of Your Rights Under Miranda

Faced with interrogators that pretend to be empathetic and sympathetic and who use every psychological trick in the book, you can rely on the courts to do the right thing and suppress any of your statements that were psychologically coerced out of you, right? Well, not so fast.

There has been a gradual trend away from the protections that Miranda once afforded. The United States Supreme Court has carved out a number of exceptions to the rule laid down in Miranda. The public safety exception allows police to interrogate you without reading you Miranda warnings where the public's safety is at risk. In a 2010 decision, the Supreme Court said that you actually have to tell the police that you are invoking your right to remain silent. That’s right. You have to speak to remain silent. If you invoke your right to remain silent or to have counsel present, but then speak to the police, they can begin questioning you again. There are many more exceptions that have been carved out of the original Miranda rule by the cases that have come after it.

Perhaps the most telling sign that the Supreme Court is slowly eroding Miranda protections comes from a dissent in 2000. In the case, Dickerson v. United States, Justice Antonin Scalia said that police might not even have to read Miranda warnings because people already know their rights:

There is, for example, simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of the rights described in the Miranda warning, is anything other than a volitional act. And even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present. There is a world of difference, which the Court recognized under the traditional voluntariness test but ignored in Miranda, between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord.

What Does This Mean for You?

If the police are asking you questions, try to leave. If you cannot leave, you are in custody. If you are in custody, then tell the police that you want to have an attorney present. Say it plainly. I WANT AN ATTORNEY. Do not answer any of their questions, no matter how innocent they seem. They will try to gain your confidence. They will pretend to be your friend. The police are not your friends. They are doing their job – not trying to make friends. They will say that you can’t help yourself if you don’t talk to them. They cannot help you, period. Like the Miranda warning says: Anything you say can and will be used against you in a court of law.

Your attorney will thank you for not speaking with the police.

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