Brad K. Kaiserman, a California criminal lawyer at Eisner Gorin LLP said the dramatic portrayal of overly aggressive law enforcement is shaping the public perception of what a typical arrest looks like and the law is “poorly demonstrated in popular culture.”
“Once someone clearly invokes their right to silence or to a lawyer, the cops must stop questioning them," he says. "But popular culture often has officers continuing to ask questions and pressure suspects even after the suspect has invoked his or her rights."
Kaiserman says there are also issues that crop up during real Miranda warning readings that complicate the legal process. Namely, when the Miranda warnings need to be translated into another language and ambiguity about when it is legally prudent for the warnings to be read.
“Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions,” according to informational site dedicated to the law; mirandarights.org.
An improper reading of the rights, or the lack of a reading all together, will prevent certain statements from being admitted into court. “If the Miranda is given improperly, then the suspect did not knowingly and voluntarily waive his or her rights and, therefore, his or her statements cannot be admitted,” Kaiserman said. “Typically, law enforcement read from a card that states the Miranda rights in order to avoid this issue.”
However, if the suspect does not speak English, the relaying of the right to keep quiet can literally be lost in translation.
Another issue he has seen crop up from time to time is legal challenges surrounding the debate about at what point the officer is responsible to whip out his Miranda card. In general, he said: “If [officers] approach someone on the street before that person is a suspect and just asks him a few questions, no Miranda warnings would be required because he was not in custodial interrogation, even if he subsequently becomes a suspect and is arrested.”
The distinction “custodial interrogation” refers to the “questioning of a detained person by the police in connection with a criminal investigation. A person is not only detained when under arrest, but also whenever not free to leave,” according to its definition from the Cornell University Law School Legal Information Institute.
A look at the legal reality of the “right to remain silent” last year by NPR indicated there is also a more complicated relationship between when a person is arrested and when the police need to read them their rights. NPR found that the rights are required to be read not immediately following an arrest, but before questioning. They cite an example of a suspect who was detained in a police car, albeit not handcuffed, said nothing remorseful with respect to the life he had taken in a car accident, and was actually prosecuted based on his lack of sympathy.
The courts determined his silence, as he was not read his rights for several hours after the accident, was actually not an invocation of the right to remain silent, but actually a damning example of him as unrepentant driver.
The goal of the Progressive Law Practice series “Dispelling Myths” is to thoroughly inform its readers about statutes relevant to topics interesting to them, but interpretation of the law is always a complicated matter. Please feel free to comment on this law or suggest others that are often misconstrued by the masses for future articles.