Wednesday, November 10, 2010

The New Miranda warning

I thought this post on the Marquette University Law School faculty blog by Michael Cicchini nicely summed up recent SCOTUS Fifth and Sixth Amendment jurisprudence pretty well. In conformity with these cases, here is how we should be giving the familiar Miranda warning if we really want to be honest:
I first have to read you these rights before you tell me your side of the story, okay? First, you have the right to remain silent.

Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).

But if you choose to speak so that you can remain silent, you had better not be ambiguous. If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative. Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).

On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you. This is only fair. Florida v. Powell, 130 S. Ct. 1195 2010).

If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense. So, you might want to talk to me now so you don’t look guilty later. Jenkins v. Anderson, 447 U.S. 231 (1980).

But, anything you say to me can be used against you in court. (I’m not sure if this includes the things that you say in order to remain silent.)

You have the right to an attorney.

But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it. Don’t ask me, for example, “Could I get a lawyer?” This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you. However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).

If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line. Then you might be on your own.

And don’t say “I can’t afford a lawyer but is there any way I can get one?” As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.” The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?

Add to this recent jurisprudence cutting back on remedies when the police violate constitutional rights anyway despite all of these police-favorable cases and I wonder if the Bill of Rights matters any more (other than for people with money and people who want to bear arms).

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