CRIMINAL DEFENSE FORUM

By: Mark Eiglarsh

If you've ever watched Law and Order, The Practice, Matlock or any other police or crime TV show, you've invariably heard a suspect being read his "Miranda Rights." It makes for great drama: "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 an attorney, and if you cannot afford an attorney, one will be appointed for you" ... The reality is that those cherished rights are not exactly what you may think. Moreover, the history behind how they came to be and how those rights ultimately affected Mr. Miranda, may intrigue you.

On March 13, 1963, Ernesto Miranda, was taken into custody after police suspected him of stealing eight dollars from a Phoenix, Arizona bank employee. During several hours of police questioning, Miranda confessed to his involvement in the theft. Without ever being offered an attorney, Miranda also ended up revealing to law enforcement that about a week and a half earlier, he had brutally kidnapped and raped an 18 year old woman.

Shortly thereafter, the Arizona resident was convicted after a jury trial and sentenced to twenty years in prison. The jurors based their verdict primarily upon Miranda's confession. Miranda's appellate attorneys moved to set aside his guilty verdict asserting that police never advised Miranda that he did not have to answer law enforcement officers' questions.

Influenced by Mapp v. Ohio (1961) and Escobedo v. Illinois (1964), the highest court in the land, in a 5-4 decision, agreed with Miranda's attorneys, reversing the rape conviction. The court established what has now become the famous, "Miranda Rights." The court based its decision on both the interpretation of the Fifth Amendment of the U.S. Constitution stating, in part, that we shall not be compelled to be a witness against ourselves, and on our Sixth Amendment right to counsel. As a result of the decision, statements and/or confessions could not be used in a court of law unless it was first proven that the suspect fully understood their rights and thereafter, voluntarily waived them.

Often times before they ever even sit down, one of the first things that a person accused of a crime often passionately states to his or her criminal defense lawyer is, "They never read me my rights." Most people erroneously believe that they are entitled to a dismissal of the charges if the arresting officer fails to inform them, amongst other principles, that they have "the right to remain silent." The reality is that, under the law, the only scenario under which an arresting officer is required to read an accused his or her rights is when there is a "custodial interrogation." Custodial interrogation, as defined in the Miranda decision, is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." No warnings are necessary unless both situations exist. The suspect must be 1) in custody and a law enforcement officer must 2) initiate questioning.

When deciding whether a suspect is "in custody," it generally doesn't matter whether a suspect feels "threatened" by the officer's authority, or whether the officer holds a subjective intent to arrest the suspect if he or she confesses. The United States Supreme Court has held that the proper focus is "on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." The important inquiry that needs to be answered is: Would a reasonable person believe that he or she was free to leave?

Just because a person is in custody, Miranda warnings are not always required before law enforcement officers lawfully secure confessions. The Fifth Amendment to the Constitution does not bar the admission of "spontaneous statements." If suspects wish to "confess their sins" without being questioned, most efficient officers will passively listen to what they choose to reveal. The courts have held that when a suspect initiates the discussion with police, choosing to volunteer the information without police asking questions, the suspect "was not subject to custodial interrogation and was not entitled to Miranda warnings." This doesn't mean that an overzealous officer can "bait" a suspect into making a statement without actually asking any questions. Any actions and/or comments which are obviously intended to provoke a response from the suspect will be treated the same as questioning. An example of that may be if an officer slams a bloody knife on a table in front of an accused murderer and shouts, "Look what we have here!!!" Although not asking questions, the officer's actions appear to be designed to cause a response. The United States Supreme Court has defined interrogation as "not only express questioning, but also any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response." This excludes routine booking questions such as the suspect's name, address, date of birth, and social security number, which are typically asked in order to establish their identity. In short, if officers do nothing to provoke a response, and if suspects wish to "bare their souls," courts have generally found that there is no harm in listening, and thus, no need for Miranda warnings. Anything heard by law enforcement may, and often is, used against the suspect in court.

Ernesto Miranda was retried after his conviction was overturned by the Supreme Court. In his second trial, his confession was not presented. Nevertheless, he was again convicted of kidnapping and rape based on other evidence. He served eleven years in prison before being paroled in 1972. After his release from prison, he made money by selling Miranda rights cards with his signature on them. In 1976, at the age of 34, he was stabbed to death in a bar fight. The man suspected of killing him invoked his Miranda rights and refused to talk to police. He was released and never charged with Miranda's murder.