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November 17, 2006

Hivemind: What if you say you don't understand your Miranda rights?

Hivemind, I've got a question for you legal eagles.

Sometimes, when people get arrested, the police ask them if they understand their so-called "Miranda rights." I gather the rights to be understood involve the right to remain silent, the right to an attorney, etc.

At least, this is what happens on TV and what is described in some FindLaw bulletins I get for free. (FAIK, this could be an elaborate ruse perpetuated by product placement officials in the DOJ who pay TV producers to ensure that fictitious representations of our rights dominate the mainstream meida...)

Anwyay, TV characters invariably say they understand, or else the camera cuts away before they're shown to say anything.

So, what hapens if an arrestee insists that they don't understand their rights? Presumably it's legally important for the cops to establish that the person being placed under arrest understands their legal rights in order to question them admissibly, etc. Otherwise they wouldn't have to ask, right?

What if you do understand your Miranda rights (or assume you do)--is there any advantage in insisting that you don't?

Rest assured, this is an idle question.

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Interesting question.

I'm not a criminal lawyer, but other than annoying the cops, I'm not sure what pretending not to understand would accomplish. The main consequence of a failure to give Miranda warnings is that the suspect's incriminating statements will generally not be admissible in evidence (the "exclusionary rule"). Thus, if you're enough on top of things to pretend you don't understand, you'd do better to just keep your mouth shut (almost always the best course of action for a criminal suspect).

That said, I'm pretty sure if the suspect really doesn't understand, the warnings don't count. I think this comes up with suspects who don't speak English, though I would imagine there are also mental capacity cases (I haven't actually seen the latter, but if I had to bet, I would bet that courts do there best to find defendants _did_ understand).

they'll get repeated. It's not "do you understand the legal implications of your rights fully," it's more along the lines of "did you hear that." It's worth noting, though, that cops are not generally known for tolerance for smart-asses, so if they get the impression that you're screwing with them, I imagine you can expect a quick rabbit punch before your rights get repeated.

If the question is, hypothetically, what would happen if you repeatedly denied understanding your rights, I imagine the cops would ensure that they had a witness or two, and then conduct whatever interrogation they want. I'm not sure, but I'm pretty confident once they established to the court's satisfaction that they read your rights, you'd have the burden of proving you didn't understand them in order to get any subsequent confession thrown out.

remember, this isn't a procedure required for arrest, it's a requirement for admissability of evidence.

Thanks for the clarification.

If there's one thing my parents taught me, it was never to say anything to the cops. :)

In fact, when I was growing up, my Dad supplemented his university salary by testifying as an expert witness in cases where the accused was literally too mentally ill or high to understand their rights. This is in Canada, though.

As a young child I remember the nearly miraculous story of Mr. F. who almost certainly killed his wife, disassembled the gun, smuggled it across provincial lines dismantled through airport security wrapped in aluminum foil inside specially packed cookie tins, and got off because his confession wasn't admissible.

Talk about a valuable life lesson!

AFAIK, in Canada, there's no ritualized litany in which the police ask the arrestees whether they understand their rights.

That's what made me wonder about getting arrested in the US. Better never to confess, but if were somehow possible to establish a mitigating paper trail...

The police will usually ask you to sign a paper acknowledging your rights. In the case of signing a document, before affixing your signature, write on the paper that you specifically don't want to be questioned without an attorney present.

If there's one thing my parents taught me, it was never to say anything to the cops. :)

That's about the best advice a parent could give a child. Unfortunately, the coppers are well-trained and extremely adept at cajoling people into talking, even (especially) when it is in their interest to clam up. One of my former students was a cop before he went to law school, and used to tell me about all the tricks they used. Impressively devious. Anyway, very few people are really able to keep mum, no matter how much they know they ought to.

Actually, One of my first jobs when moving to the USA was creating an educational CD-ROM for people who were deemed incapable of assisting in their own defense. It was generally meant for kids and developmentally challenged adults who didn't understand the basics of the court system.

I think in practice though, this is worked out through the lawyers in the trial process.

Depends heavily on jurisdiction, but the way it is supposed to work is that if you either fail to affirmatively answer the question or simply fail to answer, then the right is invoked by default. That is, the question is a more or less a method of asking the arrestee to waive the right - after you affirm, any questions answered are assumed to be answered with informed consent. If course, there are many more or less interesting loopholes for the cops, depending on where you are.

It's never been decided that I know of, but I'd not count on getting out of a properly Mirandized arrest on any sort of technicality.

Miranda doesn't establish rights; it sets out an acceptable prophylactic for already well-established rights. The upshot of that is that, technically, you can violate the shit out of the warning provisions of Miranda without violating the Constitution - or even Miranda itself. Because the current supreme court is staffed with folks much more doctrinally agile than I, I'd imagine that this malleability will be used sooner or later.

See Wikipedia - http://en.wikipedia.org/wiki/Miranda_warning.

Defendants have gotten off because cops did not make sure they spoke English or could hear their rights. Also, the Miranda rights aren't necessary when the police don't intend to question the suspect. If they change their minds, he Miranda can be read then.

Here's a fascinating article about the techniques cops use to interrogate suspects.

i am a criminal defense attorney. for some reason, the majority of my clients seem to believe that once they "receive their rights" and it is therefore ok to talk. many also talk in hopes of talking their way out of a jam. I am litigating a case right now in which a native ilocano speaker with a 5th grade education, was given his rights in english. although he speaks some english, he does not speak and understand english well enough to get the implications of a rights warning. if the court rules that his statement was made intelligently, knowingly and voluntarily, he will be going to prison for ten years,if not he will get probation. if you are a native english speaker who is not severely mentally ill, it would probably result in a court determination that you did understand. rather than fake not understanding, JUST DEMAND A LAWYER AND PREPARE TO SIT TIGHT FOR A WHILE. when a prisoner demands a lawyer ALL QUESTIONING MUST STOP IMMEDIATELY since often a lawyer would not be immediately available. the police play games with prisoners. they are legally allowed to lie, cheat and trick prisoners into making unwise statements. people sometimes make statements hoping to rat for the cops. many do rat out their friends and family only to be told their informer work was not good enought. off goes you statement to court. please be careful. you will not be able to talk yourself out of the jam, so just say nothing and sign nothing. all best. pili

My guess is it will only come up if your defense attorneys use it and then whether or not you were fooling would be hashed out in court.

A lot of Texas cops carry a card with the Miranda warnings written in Spanish that they read or show to the defendant, or some even get the defendant to sign a spanish language written version saying they understand to cover their ass. Sometimes (though rarely, given our crappy appellate courts), when they don't give Spanish-language Miranda warnings their cases get tossed out.

A related issues I saw recently: What happens when one of your jurors didn't understand the English language testimony in court, and a corrolary question, is excluding Spanish speaking jurors a violation of giving folks a jury of their peers? See: http://www.mysanantonio.com/news/metro/stories/MYSA102706.01A.jurornocomprende.3581135.html

best,

I'm no lawyer, but Pili the criminal defense attorney is of course correct. Whether or not you understand your rights only matters if you talk because the admissibility of what you say only matters if you say something. Don't talk and don't worry about your Miranda rights.

It's as if the police are working with checklists of evidence (including statements) they'd like to gather to prove the crime. If they check enough items of evidence, they charge you with a crime.

Here's the key point: Nothing you say can make the police UNcheck an item on the list. For example, they probably have two checkboxes for you being in the right place at the right time to commit the crime. If you say "I was there but I left before it happened," they check the box for right place and ignore that you said you weren't there. You've just put yourself at the scene. Even if they have a witness who puts you at the scene, putting yourself there can only make it worse.

If the charge against you is very minor (a violation) the police may ask you to sign a promise to appear in court. It's OK to sign that. If you've ever had to sign a traffic ticket, that's what you were doing. But don't sign anything else, not even a receipt for personal property (which is an admission that everything on the list belongs to you).

I am only repeating what Nobuddy and Pili said, but it cannot be said often or loudly enough. DEMAND A LAWYER! That is the only right worth a damn, because it often stops questions. The other Miranda right--admissibility--is fairly worthless. Even a non-Mirandized confession can be used against you, if it is inconsistent with your story in court.

From time to time the Miranda decision comes under attack by right wing opponents of the requirement.
Click on the link below to see my cartoon concerning Miranda, and a blog entry about the subject.
I have had the unfortunate experience of being incarcerated a few times( for pot!) in California, Arizona and Texas and the police do not always give the Miranda rights but they always claim to have done so in court!

http://dickysdoodles.blogspot.com/2006/01/miranda-decision-blamed-by-right-for-9.html

Another repetition of what's discussed above (but it's worth it): demand a lawyer in clear, unequivocal terms. Do not ask the police whether you need a lawyer, because the police are not required to clarify whether you have made a demand or answer any question of that sort. The police will not stop questioning you, and they will not provide a lawyer until such time as you clearly demand a lawyer. I've seen videos of police interrogations, and they will do their damnedest to persuade you to not get a lawyer (all without seemingly violating the law, of course).

As far as the question is concerned, I doubt the police would really believe you don't understand your rights unless you appeared to be mentally incompetent or a non-english speaker. Even then, they might not believe you.

Here's a fascinating article about the techniques cops use to interrogate suspects. - LB

I've been vaguely aware of these techniques for some time. Even those law enforcement officials who have not been formally trained in them, often have picked them up in their practice.

Which makes me wonder -- why do Bush & CO claim we need "advanced interrogation techniques" or whatever euphemism for torture they are using nowadays? These sorts of techniques are pretty darned effective ... and anyway, as they say in my family "you can always catch more flies with honey than with vinegar".

The only reasons I can think of to claim you have the right and desire to torture is to (1) have the suspect be so 'grateful' for not being tortured, he'll talk and (2) to provide a suspect cover for talking ("oh, I would have been tortured if I didn't"). IIRC, at various times Israel has made sure militants believed they would be tortured if captured by the Israelis for these reasons. OTOH, the sadists of Bush & CO hardly strike me as subtle enough to be using the threat of torture in this way ...

A Presentation of the Flex Your Rights Foundation:

http://video.google.com/videoplay?docid=8520847761350501823

How to Avoid Being Arrested.
Good advice.

I asked a cop I know. This is what she said.

If the lack of understanding Miranda comes from a language barrier we call a translator. If they tell you that they don't understand, you can attempt to explain it to them. If they still say they don't understand then you treat it the same as if they invoked the right to an attorney....no questions. Under most circumstances when Miranda is required there is already probable cause for an arrest, otherwise you would only be conducting a voluntary interview. In either case they can refuse to answer the questions. My job is made easier because most don't have enough sense to keep quiet.

I thought I knew something about law, but I was wrong. It seems cops and judges don't really know law either. I have worked in several repair businesses too, the customer was like a civilian facing a cop, the front desk was like a court clerk, and I was like a judge. Allot of the time none of us knew what we were doing, escept sometimes when we all knew the customer knew he was getting screwed. It seems many courts are reverting to their 12-20 century functions: raising revenue.

I'm reasonably intelligent and educated, but if I was read the Miranda thing I could very honestly say, "no"...errr, "sir.....please don't shoot me or permanently injure me". Well the last bit wouldn't work, cops tend to be contrarian. Often they seem to like and respect criminal much more they they respect honest citizens. The best thing is to live somewhere where you can get to know the police, invite them over for dinner, perhaps some cocaine; or at least the heads of police. sad

Hey, can we discuss zoning code enforcement, broken windows and revenue enhancement here, or is that too avante gaurd? From what I've been reading from all over the country it's perhaps a rising tide of official lawlessness, racketeering. I just finished reading a cae charging it as such from St. Paul. I'm in Miami and they have been so bold as to print a handout where they bragg of "streamlined administrative" meathods and "revenue enhancement. Seems alot of county employees got injured on the job and a rather high level of graft that bankrupted the city has to be paid for. Now that they got the money to pay off the bajruptcy we'll probably see things get much worse. And there's the extra income from higher taxes on recentlu sold homesthat their fingers are itching for. From wher I sit the law looks like a joke, one can get away with murder if one pays off the right parties in advance. How long before deathsquads I don't know, but I've learnt a new word from Dr. Castro, "gusano"...I think it means worm, like the kind that eats the heart out of things, like a termite.


Hey, can we discuss zoning code enforcement, broken windows and revenue enhancement here, or is that too avante gaurd? From what I've been reading from all over the country it's perhaps a rising tide of official lawlessness, racketeering. I just finished reading a cae charging it as such from St. Paul. I'm in Miami and they have been so bold as to print a handout where they bragg of "streamlined administrative" meathods and "revenue enhancement. Seems alot of county employees got injured on the job and a rather high level of graft that bankrupted the city has to be paid for. Now that they got the money to pay off the bajruptcy we'll probably see things get much worse. And there's the extra income from higher taxes on recentlu sold homesthat their fingers are itching for. From wher I sit the law looks like a joke, one can get away with murder if one pays off the right parties in advance. How long before deathsquads I don't know, but I've learnt a new word from Dr. Castro, "gusano"...I think it means worm, like the kind that eats the heart out of things, like a termite.


I'm always keen to hear about that sort of thing. I'm digging deeper and deeper into the morass that is New York City's Department of Buildings. That place refuses to even enhance revenues for the City--if you go by the official database, all building codes seem to be optional.

You get reports that say things like "Complaint: "Operating crane without a license" and the official response is: "No crane was found on the premises."

Or, "Falling debris hit yellow car and man on street." Answer: "No debris appeared to be falling at the time of inspection."

The comptroller did a spot-check of the DOB receipts and found $26,000 in undeposited cash receipts on premises contrary to official accounting policy (and I think the audit only covered a narrow range of the offenses the DOB accepts fines and permit fees for)!

"From what I've been reading from all over the country it's perhaps a rising tide of official lawlessness, racketeering."

There is a rising tide of official lawlessness. Please do read Radley Balko's new pamphlet, Overkill. It chronicles the increasing militarization of the police, and the increased use of "no-knock" raids on people's homes. It makes for depressing reading.

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