Drop the Pen! What Every Writer Should Know About Real Police Work: You Have the Right to Learn About the Miranda Warning
By DL Williams
“You have the right to remain silent. Anything you say can be used against you in a court of law…or in a good tabloid story.” Leslie Nielsen in the 1988 police comedy, The Naked Gun.
Once upon a time there was a fellow by the name of Ernesto Miranda who did not play well with others. He spent the bulk of his life in jails and prison, and that revolving cell door pattern would continue for the rest of his life until he died from stab wounds incurred during a 1976 bar fight. His life was one of rage and pain and waste.
But he changed criminal investigations forever.
In 1963 Miranda kidnapped and sexually assaulted an eighteen-year-old woman in Phoenix, Arizona. The woman Miranda attacked was able to provide a solid description, as well as the make, model, color, and partial license plate of his pickup. Phoenix P.D. officers picked him up, whereupon detectives put him in a lineup and interrogated him until he confessed. Miranda was found guilty at trial, which is when the story takes a turn.
The case was appealed all the way to the Supreme Court, where the conviction was thrown out stemming from the fact the detectives had not adequately ensured Mr. Miranda understood his Fifth Amendment right to be silent while being questioned as a criminal suspect, as well as his Sixth Amendment right to have an attorney present during interrogation by the police.
To be clear, the Phoenix officers did some solid police work, but the times, they were a-changin’, and so was legal precedent. Few police professionals had thought about reminding suspects they had constitutional rights, and the very idea of giving people accused of violent crimes such a reminder would have been about as popular as a cop walking into a squad room wearing a duty belt under a tutu.
The Miranda vs. Arizona ruling changed everything when it came to police interrogations. Nowadays, as I’m sure you’ve surmised from police procedurals in films and novels, officers dutifully issue the warning at the point of arrest as a matter of routine and departmental policy.
I wonder how many times we’ve heard fictional cops recite the Miranda warning on television. I bet you could list the whole thing from memory the next time you make a citizen’s arrest. I should point out a couple of things before we continue:
It’s best to not have your cop character recite Miranda from memory. I’ll tell you why in a minute.
Most of the time, it’s best to avoid making a citizen’s arrest in real life. It’s dangerous, it can get you sued, and you’ll end up on someone’s social media feed looking like a big old citizens’-arrest-making doofus.
It's conceivable you’re writing about a police detective or patrol officer who will wind up reading the warning. You have some wiggle room depending on how detailed you want to be with the project, so let’s examine a few ways Miranda can or should be applied so that you can make informed decisions as you delve deeper into your work in progress.
The Miranda Warning must be read to a criminal suspect if that person is not allowed to leave and the questions to be posed by the police investigators could be used against the suspect at trial. Both elements must be in place for the warning to be required. So, your protagonist might make an arrest but have no plans to ask follow-up questions. In this case, your fictional cop might not give the Miranda Warning at all.
An example is the arrest of a man for an outstanding warrant for failure to pay child support. The warrant was discovered when a patrol officer pulled him over for speeding through a school zone, and a check of the driver’s license through the National Crime Information Center (NCIC) resulted in a warrant “hit.” The officer in this scenario has no involvement in the child support case, so there is no reason to ask questions about it. Thus, the officer would most likely serve the warrant but not ask the suspect anything about it.
An investigator may also opt against giving the warning if she wants to ask potentially incriminating questions but has no plans to make an immediate arrest. In this instance, she could ask questions as long as she lets the suspect leave when questioning is done. This is a legally sound strategy, albeit a risky one. Conceivably, the suspect could confess to the beheading of his ex-wife, and the detective would still have to let him go. That’s not to say she couldn’t go get an arrest warrant and pick him up later, but an axe murderer is walking the streets in the meantime.
I used this technique twice in my career. In one of those instances, I was out on a case and working alone. I suspected a young man of participating in a gang-related shooting the day before. I’d learned from an informant that the man had helped the shooting suspect by picking up the spent bullet casings at the crime scene. He was in hot water for tampering with evidence, but he was also a witness to the actual shooting. I needed him to cooperate, and I had to make some quick decisions to make that happen.
The young man was stronger and faster than me. Arresting him alone could have gotten someone hurt (probably me, if we’re being honest), and it also would have shut down any chance of getting him to talk to me. Asking him questions about the part he played in the aftermath of the shooting would incriminate him, but I was certain giving him his rights in that moment would have spooked him. Thus, I asked about the shooting and suggested (honestly) that his cooperation could help him if and when he was arrested for the evidence tampering charge.
Using this tactic requires officers to be fully transparent about their intentions. Suspects can’t read minds, and many believe they are not free to go at any time. It is incumbent upon the officer to make it clear throughout the interview that the person being questioned is not in custody. Thus, an investigating officer would literally say, “Listen, you’re free to go, but I’d appreciate a few minutes of your time.”
This also means the officer’s body language must match what she said. She can’t stand between the person being questioned and the exit door so there is no confusion about how and where the person can leave. Your fictional detective will likely keep the conversational tone light, and it is always best practice to record the conversation, so judges and juries know she was upfront with her intentions and upheld her commitment.
I mentioned earlier that it is a good idea for cops to refrain from giving the warning from memory. It looks slick on film, but it can be awkward in real life if you stumble over the wording or leave out one of the required elements entirely. This can happen when adrenaline is up, so every detective I’ve ever known carried a laminated copy of the warning in their badge wallet.
This can also be a crucial element at trial. A defense attorney might ask the testifying officer if he gave the warning from memory. An inexperienced officer might answer, “I did it from memory,” with a smug look on his face, thinking this is some sort of IQ test he just passed.
Unfortunately, his day just got a little longer, because the next question out of the attorney’s mouth will be, “Would you please recite that for us now…from memory.”
I don’t care how tough you are or how comfortable you feel talking in front of a judge, jury, the accused, the lawyers for the accused, and an audience watching the trial. You are going to mess up when called upon to recite under such duress, at which point the attorney will make hay out of the suspicion you didn’t correctly provide the suspect his rights.
Conversely, if you testify you read the Miranda Warning off a laminated card, the attorney is likely to drop the entire line of questioning. It’s safer and more professional, and it is simply a better way to get the job done.
I have one more thought on the Miranda Warning. Yes, it can be a bit of a hassle, and it might be the catalyst for the suspect to clam up and ask for a lawyer. It is also true that hardened criminals who have been in and out of prison most of their life know the warning as well as you or I. However, I came to a conclusion some years back that the warning is also a reminder to good police officers that the people we suspect of horrible crimes are still endowed with certain rights. We’re the good guys, and remembering to treat even the worst offenders as suspects instead of as guilty by our own opinions is how we stay right with the law and with the ethics we swore to uphold. Onward!
