In the years since I became a lawyer, there are a few things I’ve never really gotten used to. One of them is how it is that people who hire me will almost always have made some kind of statement to the police; usually a statement that harms them in some way, and makes their case more difficult to defend.

Now the average person out there might be thinking, “Yeah, so what? I’m glad criminals don’t know better. I don’t want people getting off on a ‘technicality’ because they exercised their right to remain silent.”

But it’s really not that simple. Not everyone who hires me is “a criminal.” In fact, if you could follow me around for awhile, I think you’d be surprised at how many people who hire me are not criminals. It’s an unfortunate fact of modern criminal “justice” that the system is geared to view everyone as a criminal, and too many non-criminals are therefore swept up and handcuffed to a life of misery. You know the old saying, “When all you have is a hammer, everything starts to look like a nail”? It’s equally true that when your job depends upon arresting, prosecuting, sentencing, monitoring, jailing or imprisoning, then everyone you meet starts to look like someone who needs to be arrested, prosecuted, sentenced, monitored, jailed or imprisoned.

And, yeah, my job might depend upon defending people. But, first of all, I’d be more than willing to find another job, if only there weren’t so many people in need of being defended. Second, I’m not the one writing laws — not even voting for laws — that have criminalized innocent behavior to the point that your average American commits three felonies (or more) per day without even knowing it. [1]Just because you don’t like certain behaviors doesn’t mean they aren’t still “innocent” behaviors, by the way. That’s where I think a lot of these problems come in. Someone doesn’t like something, so we outlaw the behavior. But because it’s not really the sort of thing everyone thinks should be a crime, too many people won’t know in advance of being arrested for it that it is a crime. And, thirdly, while the people who have committed crimes who come to me for defending are glad I’m here, those who have not committed crimes are even more glad. Not being a prosecutor, I have nothing really to be ashamed of, or apologize for.

But I digress. 

I recently won a motion to suppress a statement in a case — I’m not going to get into details — that in my opinion should never have been filed. The pertinent part of the case is that a police officer questioned a young boy, without giving him a Miranda advisement; i.e., without telling him that he had the right to remain silent, and to consult with an attorney before answering any questions. The boy, as you might guess from my comments so far, said some things that could be construed as harmful to his case.

At a hearing on the matter immediately prior to adjudication, the testifying police officer was (shall we say) “less than truthful.” Or, as I remember the court putting it, “uncertain.” [2]I’m not sure that’s the exact word used, but it conveys the gist. Courts are loathe to call a lie a lie if they can get by with hinting it might have been a mistake. And because discovery in the case had been provided to me on the day the adjudication was to start, I was unable to transcribe the recording that would have proved the points I wanted to argue about the coercive nature of the questioning, and I was therefore not allowed to introduce the tape into evidence because of a local rule that required the transcription “two weeks before trial.”

I was forced, therefore, to put my client on the stand for the limited purpose of testifying about the circumstances under which he made his statements. [3]See Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); People v. Schader, 17 Cal.2d 761, 769-770, 80 Cal. Rptr. 1 (1969).

Given the situation, I had approximately five minutes to “prep” my client for testifying. I knew his story from interviewing him, and I knew it should result in a successful motion if believed. I had little more time than to ask if he was up to testifying, explain how testifying worked, and to tell him to give short answers, stick to answering only the question that was asked (i.e., don’t go rambling, or getting into other areas that were not asked about), and, above all, to be truthful.

For some reason, the prosecution wanted to show that it did not matter that my client had not been read his Miranda rights. Apparently having mistaken the dissent in Dickerson for the actual Opinion of the Court — understandable given the “death by a thousand cuts” that Miranda has suffered through the years — he began asking a series of questions aimed at determining what my client knew about Miranda rights.

And, despite that fact that there is an argument my client’s subjective knowledge is irrelevant to the question of whether or not he needed to be Mirandized, as he began to truthfully answer the questions, I began to inwardly groan. I thought, more than once, “Well, that’s it. We’re dead.”

My client was asked if he was familiar with Miranda warnings. I objected on relevance grounds — whether or not my client already was aware of the advisement was irrelevant to the question of the whether or not he was given the advisement by the questioning officer — and I was overruled.

My client answered that yes, he knew them. He’d seen them on TV. Many times. In fact, when asked if he knew what they were, my client said — I kid you not — this is pretty much exactly what he said:

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. If you cannot afford one, you’ll get one.

Or maybe he said, “We’ll get you one.” I think he kind of trailed off at the end there.

Crap! Scalia was right! Miranda warnings are unnecessary in the modern world, because everybody already knows their rights! 

I just knew we were dead. I began mentally preparing myself for recriminations for having put my client on the stand. I began trying to figure out what I was going to say to him, and to his family. I mean, on the one hand, as I’d said when I objected: whether or not my client knew his Miranda rights was not relevant. Under the law — even under the law after Dickerson — to not read him his rights was constitutionally unacceptable. On the other hand, he knew them by heart. The prosecution would — did — later argue that given that fact, it cannot be said that the officer’s failure to read him his rights created any kind of problem. After all, if the kid knows that he doesn’t have to talk to the police, then how can it be said that his statement was not voluntarily made? How can it be said that the officer’s failure to read him his rights contributed to creating an environment in which a reasonable person would not have felt free to refuse to answer?

If I’d gotten an answer like that, I would have stopped right there, and that would have been my argument. [4]It might  not have been successful, even if the prosecutor had done that. It’s still important — and the court seemed to adopt this position — that the law requires the advisement before custodial questioning. Incidentally, although I haven’t gotten into the “custodial” issue here, it was perjurious statements about the custodial circumstances by the officer — and the late discovery combined with the local rule that kept me from being able to use the recording of the actual questioning — that led to my putting my client on the stand in the first place.

Thankfully, the prosecution did not stop there. The next question was something along the lines of, “So you know how it works, right?”

Let me highlight the answer:

Yeah. First, they read you your rights. Then you answer their questions.

That’s how it works.

First, they read you your rights. Then you answer their questions.

He learned it from TV.

On re-direct examination, I confirmed that this meant what I thought it meant: that’s how it’s supposed to work.

First, they read you your rights. Then you answer their questions.

So, Mr. Scalia, it turns out that your belief — and the belief of so many others — that we no longer need Miranda warnings because everyone knows them, is wrong. It turns out that recent case law that no longer seems to require asking questions afterwards like, “Do you understand these rights?” and “Are you still willing to talking to me?” is right. Those questions are irrelevant. The problem is that (thanks, Television!) people think they understand their rights, but they don’t. Meanwhile, they’re being questioned by people who not only do know what those rights are, but have been trained to get around any attempt to exercise them.

What we really need is not another thousand cuts to the core principle of Miranda. We need a better advisement. We need to start holding the government accountable when Miranda is circumvented. If you ask me, the Exclusionary Rule is not enough. Cops who violate Miranda should be punished. We’re raising generations of people who believe that Miranda is just something that the cops say so that you have to answer their questions. That’s how they notify you that it’s time to tell the truth. And, of course, if you try to resist, they will then start badgering you to tell the truth because — dammit, man! — they’ve already Mirandized you.

And now I understand all those people who come to me after an arrest who have talked to the police. I always thought it was because they mistakenly believed they could talk their way out of it. I was sometimes incredulous that, in the end, most of them ended up just spilling all the beans, so to speak.

First, they read you your rights. Then you answer their questions.

I understand it now.

I just don’t know what to do about it.

 

References   [ + ]

1. Just because you don’t like certain behaviors doesn’t mean they aren’t still “innocent” behaviors, by the way. That’s where I think a lot of these problems come in. Someone doesn’t like something, so we outlaw the behavior. But because it’s not really the sort of thing everyone thinks should be a crime, too many people won’t know in advance of being arrested for it that it is a crime.
2. I’m not sure that’s the exact word used, but it conveys the gist. Courts are loathe to call a lie a lie if they can get by with hinting it might have been a mistake.
3. See Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); People v. Schader, 17 Cal.2d 761, 769-770, 80 Cal. Rptr. 1 (1969).
4. It might  not have been successful, even if the prosecutor had done that. It’s still important — and the court seemed to adopt this position — that the law requires the advisement before custodial questioning. Incidentally, although I haven’t gotten into the “custodial” issue here, it was perjurious statements about the custodial circumstances by the officer — and the late discovery combined with the local rule that kept me from being able to use the recording of the actual questioning — that led to my putting my client on the stand in the first place.

14 comments

  1. There is a guilty criminal going free – the perjurious cop. That’s where the hypocrisy of law-and-order types shows.

  2. There is a guilty criminal going free – the perjurious cop. That’s where the hypocrisy of law-and-order types shows.

    1. What makes you think he’s a guilty criminal?

      Or did you miss the part about the fact that this particular case should never have been filed, and that the police officer lied on the witness stand?

    1. What makes you think he’s a guilty criminal?

      Or did you miss the part about the fact that this particular case should never have been filed, and that the police officer lied on the witness stand?

  3. I remember back in 8th grade history there was a book that spoke of what was legal for school admins to do to kids.

    In 1 scenario, the principal grabbed a boy’s jacket and held it so that the boy would come to his detention later on in the day. The principal had a suspicion that the boy had drugs, so he searched the jacket and found drugs. The principal called the police and they arrested this hypothetical boy.

    My history teacher then asked us the entire class, “Is this legal?”. Some kids said no, I was one of them thinking that your rights to unreasonable search and seizure didn’t just fly out the door because you were a student. Some kids said yes, it’s legal as the principal’s job is to ensure the students are obeying all the laws. The teacher responded with, “The principal acted lawfully”.

    It makes me mad as hell remembering this. In what is supposed to be a brief education on what your legal rights are we’re instead told we had no rights at students. What option does a student have when faced with an administrator in that above scenario? Refuse to give his jacket? I guess that’s an option but it certainly was never presented to us as students. Educators, administrators, even text books writers are keeping people misinformed on purpose.

    Our children don’t know the law. TV is not a substitution to critical analysis of the law. I’d say schools should teach their children something like what flexyourrights.org is teaching people but that will never happen. It’s left to the parents to instruct their kids on how to speak and behave around the police and other government employed individuals.

    1. I agree. One of the reasons I wrote the post was to inform parents that their children are being brainwashed by television into believing that they’re supposed to talk to the police. Obviously, it’s quite the opposite that should be happening. Even “innocent” kids should not be talking to the police in response to questions.

      It is amazingly rare that anything good comes from answering questions asked by a police officer.

  4. I remember back in 8th grade history there was a book that spoke of what was legal for school admins to do to kids.

    In 1 scenario, the principal grabbed a boy’s jacket and held it so that the boy would come to his detention later on in the day. The principal had a suspicion that the boy had drugs, so he searched the jacket and found drugs. The principal called the police and they arrested this hypothetical boy.

    My history teacher then asked us the entire class, “Is this legal?”. Some kids said no, I was one of them thinking that your rights to unreasonable search and seizure didn’t just fly out the door because you were a student. Some kids said yes, it’s legal as the principal’s job is to ensure the students are obeying all the laws. The teacher responded with, “The principal acted lawfully”.

    It makes me mad as hell remembering this. In what is supposed to be a brief education on what your legal rights are we’re instead told we had no rights at students. What option does a student have when faced with an administrator in that above scenario? Refuse to give his jacket? I guess that’s an option but it certainly was never presented to us as students. Educators, administrators, even text books writers are keeping people misinformed on purpose.

    Our children don’t know the law. TV is not a substitution to critical analysis of the law. I’d say schools should teach their children something like what flexyourrights.org is teaching people but that will never happen. It’s left to the parents to instruct their kids on how to speak and behave around the police and other government employed individuals.

    1. I agree. One of the reasons I wrote the post was to inform parents that their children are being brainwashed by television into believing that they’re supposed to talk to the police. Obviously, it’s quite the opposite that should be happening. Even “innocent” kids should not be talking to the police in response to questions.

      It is amazingly rare that anything good comes from answering questions asked by a police officer.

  5. Since it’s so hard to do anything about it after the fact, maybe part of a solution is to get to your clients before they become your clients. Here in Chicago, there’s group called First Defense Legal Aid which tries to address this issue through education. They hold classes on “street law” at local schools and civic organizations in which they try to train people — mostly children — what to do when police want to interrogate them. It’s staffed by volunteer lawyers and law students, and they also have a hotline for people picked up by the police. I have no idea how effective it is, but it sounds like it at least has the possibility of helping.

    1. We’ve actually been talking about doing something with classes in my office. The big problems for me are a) finding the time, and b) putting together enough of a talk to justify renting a space and trying to get people to it.

  6. Since it’s so hard to do anything about it after the fact, maybe part of a solution is to get to your clients before they become your clients. Here in Chicago, there’s group called First Defense Legal Aid which tries to address this issue through education. They hold classes on “street law” at local schools and civic organizations in which they try to train people — mostly children — what to do when police want to interrogate them. It’s staffed by volunteer lawyers and law students, and they also have a hotline for people picked up by the police. I have no idea how effective it is, but it sounds like it at least has the possibility of helping.

    1. We’ve actually been talking about doing something with classes in my office. The big problems for me are a) finding the time, and b) putting together enough of a talk to justify renting a space and trying to get people to it.

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