You Have the Right to Babble Like an Idiot Blog - Miranda

You Have the Right to Babble Like an Idiot

“If they don’t Mirandize you at the time they arrest you, then the District Attorney can’t file a case.  You win!  Keep the Officer distracted and ask him questions.  They may forget to read you the Miranda warning!”



Oh, for the love of God.



This little gem came off one of those YouTube shorts I saw this morning.



I had so many things I wanted to write about this week… but when I saw this, those got scrapped and this subject matter moved to the top of the list.



Okay… so let’s start out with the bottom line up front, and then move into a deeper level of analysis:  The DA can still file on you.



The Miranda admonishment does not create a prophylactic against the filing of a criminal charge.  In the famous (infamous) case of Miranda v Arizona, the U.S. Supreme Court held that defendants must be advised of their rights (in this case the right to remain silent) at the time of the custodial arrest (or in certain circumstances, detention).  It has been further clarified the defendant must acknowledge in some factor the assertion of that right.  Simply being silent is not enough to invoke their Fifth Amendment right.  (In a sense, the only way to invoke your right to silence is to not be silent.)



If defendants invoke their Fifth Amendment rights, then all questioning of the suspect must cease.  However, the defendants could subsequently waive their right by talking again, and just because no Miranda admonishment was issued, doesn’t mean the State’s case against the defendant has been prejudiced.



Here is a fact pattern:



Abel shoots Baker.  He is observed doing this by Charlie, David, and Edgar.   It is also captured on security footage.



The police arrive and arrest Abel, but forget to Mirandize him.



On the way to jail, the police officer looks in the rearview mirror and asks Able, “Why did you do it?”  Abel states, “I shot Baker because I didn’t like the way he was looking at me.”



Abel could move to have the confession of the crime suppressed.  He most likely will prevail on that challenge.  After all, he was arrested and not advised of his rights to remain silent or to have counsel present.



So what?



The DA will not care.  He does not need Abel’s confession to secure the conviction.  He has the witness testimony of Charlie, David, Edgar, and the video footage.  When the DA realizes there is a “Miranda problem”, he will not even bother wasting his time attempting to get the confession introduced.



I had a conversation with a brilliant sex crimes investigator for the Sheriff’s Department a few years back.  She told me she would routinely conduct interviews with suspected pedophiles over the phone.  She would fully disclose she was investigating a particular crime, and then start developing a rapport with the suspect.  She would even “admit” she suffered sexual inclinations that she struggled to control, and she understood his demons.  The suspects would often begin confessing to her over the phone.  There was no need to Mirandize.  It was not a custodial arrest interrogation.  The suspect could have hung up the phone at anytime.  Her strategy was brilliant.



There is a grander more interesting question, though, when it comes to suppressing evidence at trial, and it has always bothered me… a lot.



All of our Constitutional evidentiary protections (Fourth Amendment, Fifth Amendment, etc.) naturally only confer a benefit to the guilty.  The innocent have no recourse for their rights being violated.



Let me explain.



If an innocent person is stopped by a cop and searched without probable cause, the intrusion of the State is invasive and degrading.  But he is innocent.  As the cops search pockets, person, and property they find no incriminating evidence of a crime.



That is it.  Game over.  The innocent person’s rights have been violated and there is really no method to compensate him for his loss.



But let’s say he is not innocent.



An illegal search yields illegal contraband.  Well… then the defendant just won the lottery.  He can move to have the evidence suppressed.  As Justice Benjamin Cardozo opined, “The guilty go free because the constable blundered.”



Does this really make for a just and, in this instance, “safer” society?



Law abiding citizens have their civil rights violated with no recourse, while factual criminals are released into society?



In inquisitorial legal systems (Germany is an example) virtually all evidence is admissible.  It is weighted, and illegally obtained evidence allows the defendant to file charges against the offending constable (sometimes from jail)… but the evidence comes in.


In our adversarial system, qualified immunity on the part of law enforcement is the tradeoff we make for the ability to suppress evidence at trial.



If our goal is the pursuit of truth and justice, is this really the most effective system?



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Comments (2)

  • Jeff Fisher Reply

    What I was once told by an attorney is that the law is not about fairness – it is only about the law (the rules). It seems that is what “lawfare” is about – abusing the way in which laws are written, worded or “could be interpreted as …” to bring about totally unfair results through the magic of twisting the facts and the laws applicable to the instance.
    I will be much encouraged if that turns out not to be the case.

    05/15/2024 at 11:23
  • Norm Ellis Reply

    Thank you for this information. Much appreciated.

    05/19/2024 at 14:45

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