Detective Lieutenant Barry M. Baker (ret.) is a 32 year veteran of the Baltimore Police Department
The Miranda Warning has little effect on a suspect’s willingness to talk, because human nature drives a person’s need to explain things. It doesn’t matter if the explanation is a tissue of lies, or the version relates what the suspect believes.
Miranda v. Arizona
“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 an attorney, one will be provided for you.”
There’s more to the Miranda Warning than those three sentences listed above. In 1966, the Supreme Court decided Miranda v. Arizona. The Court imposed what it termed “preventative safeguards” to ensure an individual’s 5th Amendment right against self-incrimination, and the Court provided guidelines from which those three sentences emerged.
You hear about criminals escaping prosecution through “technicalities.” If you think it’s bad today, you should have started your police career when I did. Courts were hypercritical about every technicality you could imagine, and Miranda was no less controversial and interpretive. Every judge had a unique view on Miranda, and the only consensus was that police officers frequently got it wrong.
Just another Procedure
Your department will provide you with a procedure to govern the application of the Miranda Warning. Generally, you must give a person the Miranda Warning before you ask any accusatory questions of that person. An obvious example of an accusatory question would be, “Did you kill the victim?”
A department’s procedure can be quite extensive to include questions regarding the suspect’s level of education. The suspect will be required to initial each question indicating his or her understanding of the question. The suspect will indicate the waiver of rights, or invoke the right to remain silent and sign the form. Somewhere on the form will be the question, “Can you read and write?” The suspect should read aloud some of the questions to ensure the suspect can read and comprehend the questions. You should document that “reading and comprehension” test in your reporting.
Popular Culture and the Miranda Warning
Everybody has heard the Miranda Warning repeated in nearly every television police drama. The handcuffs go on, and the familiar “You have the right to remain silent…” is heard. There is no requirement for you to advise a suspect of Miranda when simply making the arrest. However, there’s no harm in it either. The advent of the police body worn camera does make an early Miranda Warning more relevant than in the past, because it can be so easily documented.
Res Gestae – Spontaneous and Excited Utterances
The Miranda Warning does not apply when a suspect makes a self-incriminating statement through a spontaneous or excited utterance. Here’s an example. You’re dispatched to a residence to “investigate the trouble.” You have no additional information, and you approach the front door with caution. Before you have a chance to knock, the door opens, and a woman rushes toward you. You notice what appears to be blood on the woman’s blouse, but before you can say anything, she shouts, “I killed him!”
Let’s change the circumstance a little. You knock on the door and a woman answers. She crying, and she initially doesn’t say anything. You notice the blood on her blouse, and you ask, “What happened?” She replies, “I killed him.” It’s definitely time for the Miranda Warning, but you couldn’t have known beforehand. The blood was a clue, but it could have been the result from a number of circumstances. But, realistically, your next question would be, “Who’s been killed?”
In both instances, the woman’s comment to you was spontaneous, because you never asked an accusatory question. In neither instance did you have the woman in a custodial interview when the comments were made.
The Real World of the Miranda Warning
You’re going to give the Miranda Warning to all kinds of people over the course of your career. There will be those who try their best to honestly describe events, and others will be text book pathological liars. Many will fall in between those extremes, and there is a small group that really knows the purpose of Miranda. This last category will literally not give you the time of day to avoid inadvertently making a self-incriminating statement.
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