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Miranda and the Silent Treatment:
Check out United States v. Thogsophaporn, a fascinating Miranda case I found via Appellate Law & Practice.

  Facts: Defendant is taken into custody and read his rights. The defendant is asked to waive his rights but he declines. An investigator then sits down in the small interview room with the defendant in silence for five minutes, three to five feet away from him, until the defendant asks for some water. The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealier. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.

  Legal question: Is the confession admissible under Miranda?

  Held: Yes, the statement is admissible, because the defendant was the one who reinitiated questioning when he asked what was going on. The court explains:
  [T]he agent's mere silent presence in the room is insufficient to rise to the level of unlawful coercion or pressure. Indeed, because the agent was required to avoid discussions concerning defendant's legal situation, it is hard to find any fault at all in his silence. While silence may feel awkward or uncomfortable under some circumstances, there is no requirement that the police engage in small talk. Nor was the agent required to exit the room and leave the defendant unsupervised. See United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (upholding admission of statements obtained following period in which the defendant did not want to answer questions and slept while officer remained in room). . . .
  In summary, there was nothing improper about [the investigator's] presence in the room or his silence. At no time did [the investigator] attempt to resume questioning or persuade defendant to speak. Defendant was the one who initiated the conversation about his situation
  My reaction: I don't know of any other cases on this particular technique, but this case has my b.s. detectors going off big time. Imagine you're in a police interrogation room with a police officer sitting three feet away from you, completely silent. Maybe he's staring right at you. Maybe he's staring at a wall. After a few minutes, the silence is likely to become unbearable; you're going to at least ask something general like "what is going on?" But presumably you won't know that this kind of general inquiry was held in Oregon v. Bradshaw to be enough to reinitiate questioning (however persuasively), so you're not going to realize that you've just gone back to Miranda square one.

  Meanwhile, presumably the officer does realize this; presumably he is making you sit there with him in a very uncomfortable situation knowing full well that you're likely to eventually ask what is going on. Cf. Missouri v. Seibert. If the test is whether the police "scrupulously honored" the defendant's choice to remain silent based on the totality of the circumstances, I find it rather hard to believe that this type of technique fits the bill. Perhaps there are previous cases allowing this sort of technique that I just don't know about, but it certainly seems fishy to me.
whit:
personally, this sounds like a textbook example of good police work AND respecting miranda.

sitting there in silence is not INTERROGATION. it is certainly not initiating interrogation

if the guy wants to volunteer up, that is his RIGHT.

it doesn't matter what you know about Oregon v. Bradshaw. even miranda, in all its rule making does not force cops to advise defendants of all relevant case law, of their intentions, etc.

what matters is that the cops advised the guy of miranda (per miranda v. arizona) and followed the decision

interrogation is defined as (iirc) "asking questions likely to elicit an incriminating response".

there is no way that sitting there silently is interrogation, or the functional equivalent thereof.

more and more the courts (and you presumably) want to read cops mind and want to know their intent, when this really is NOT relevant to miranda issues. what is relevant is - what would a reasonable person in those circumstances believe?

sorry, but it is not reasonable to assume that somebody sitting there quietly is interrogating you.

defendants have RIGHTS. one of those RIGHTS is that he can speak. he reinitiated the conversation. that's his right.
9.24.2007 8:20pm
Bart (mail):
Professor Kerr:

Are you serious about finding a violation of Miranda under these facts?

The purpose of Miranda is simply to notify the suspect of his rights to prevent a coercive interrogation from gaining a false confession. The purpose is most certainly not to grant the suspect every comfort to make is as easy as possible to avoid making a true confession.
9.24.2007 8:27pm
I have to agree with Kerr and disagree with whit (mail):
The suspect invoked Miranda.

In response, the police created a very uncomfortable situation that would cause the most people to ask "what is going on." It is not normal to sit in silence with another individual nearby in total silence for an extended period of time.

This is not respecting Miranda. This is a clear police attempt to try to get around the fact that the suspect invoked Miranda. If the police respected Miranda, they would leave the suspect alone, not put him in a socially uncomfortable situation where he has to sit in silence with a police officer, which would lead the vast majority of individuals would ask "what is going on." Basically, the police are being sneaky and playing games to get around Miranda. You don't have to be able to read minds to see that.

In a sense, in this circumstance, the silence is a form of interrogation> The suspect is not being left alone, but is instead in a situation where he is positioned to have a conversation. There is no other purpose for the police officer to be in the room but to talk to the suspect. It is not as though the police are driving the suspect to the police station (doing something legitimate that is clearly not an interrogation) and the suspect decides to talk.
9.24.2007 8:31pm
FC:
What next, the comfy chair?
9.24.2007 8:37pm
Nessuno:
I agree with Bart. The concerns raised on Miranda are rooted in coercion. If the test is "scrupulously honored", and this does NOT meet that requirement as it's been constructed, then it's a bad test.

I can't help but conclude that, given the facts as Kerr described them, if this confession was thrown out, the practical consequence would be that unless a defendant waived his rights immediately, a confession would never be admitted.

If (awkward) silence doesn't "scrupulously honor" a suspect's right to remain silent, then think of all the other little police activity that the courts might construe as being similarly out of bounds.
9.24.2007 8:39pm
CEB:
I know this is a much broader issue than you bring up in this post, but maybe you can help me with a question that drives me nuts: Why Why WHY do people confess crimes to the police?!? Especially when they've just been told that they don't have to? It boggles my mind. It boggles my mind even more that the majority of police work involves confessions by the suspect. What am I missing?

(I'll spare everyone my libertarian rant about how Constitutional rights can never be legitimately waived and how "willing, voluntary, and intelligent confession" is doubletalk)
9.24.2007 8:40pm
Caliban Darklock (www):
I think it's duration that matters here. If the investigator had kept the defendant in the room for an hour, that's over the line. That constitutes a deliberate interrogation technique. I'd feel the same about a half hour.

Fifteen minutes, however, is where I start to waffle. Somewhere between ten and twenty minutes, my opinion changes. Less than ten minutes of silence, it's uncomfortable but not an interrogation tactic. More than twenty minutes, it's definitely interrogation.

But since we're talking about five minutes, it doesn't really matter. The confession should be admissible. Indeed, the response of the defendant to silence demonstrates mens rea, doesn't it? An innocent man doesn't confess in response to silence, he just further denies his guilt.
9.24.2007 8:49pm
FC:
CEB:

I'll spare everyone my libertarian rant about how your disregard of personal responsibility and ownership is not libertarian.
9.24.2007 8:50pm
Mongoose388:
Bring back the rubber hose, third degree and bare light bulb tratment and how about some Quiet Riot music to boot?
9.24.2007 8:54pm
Caliban Darklock (www):
> WHY do people confess crimes to the police?!?

Because fundamentally, they know they have done wrong and that they deserve to be punished. They confess to satisfy their own internal sense of justice. Or, at any rate, that's the happy theory; another is that people always expect their worst fears to be true. Police always ask "do you know why I stopped you?" because the criminal's fear overpowers his ability to reason, and he says things like "because you had my dealer under surveillance?" when the obvious answer is that your taillight is broken.

It's interesting to note that this question is most likely to be asked either when someone is completely above suspicion of wrongdoing, or entirely devoid of morality altogether.
9.24.2007 8:55pm
OrinKerr:
Whit,

I agree that the defendant isn't being interrogated here under Innis until he later waives his rights and is questiooned. However, he also didn't say anything incriminating here in response to the silence, whereas in Innis, the defendant blurted out incriminating statements in response to the overhearing of the conversation among the officers. Here, the defendant's response to the pressure was merely to reinitiate questioning; as I understand it, the doctrinal test here is whether the officers "scrupulously observed" the defendant's right to silence rather than whether he was "interrogated" by the psychological pressure under Innis.

Am I mistaken about that, and if so, can you explain why?
9.24.2007 8:56pm
OrinKerr:
One more thought, whit. You write:
more and more the courts (and you presumably) want to read cops mind and want to know their intent, when this really is NOT relevant to miranda issues. what is relevant is - what would a reasonable person in those circumstances believe?
Just to be clear, I don't "want" anything except for courts to follow the law. It sounds like you prefer Justice Souter's plurality opinion in Seibert to Justice Kennedy's controlling concurring opinion. But I hope you will agree that our personal preferences are not relevant to the question.
9.24.2007 9:00pm
Dave D. (mail):
....It is not normal to sit in silence with another individual nearby in total silence for an extended period of time. Aren't any of you married ? I was a cop for 32 years and it is very common to advise a citizen of Miranda, have him refuse to 'waive' and drive or sit for long periods in silence. Prisoners are guarded every day, in the many thousands, in silence. Whatever could " You have the right to remain silent " mean, but that silence would ensue if that right is claimed ?
...The question CEB raises has confounded me since 1971.....Why indeed would anyone volunteer a statement of guilt? There is something in the human condition that evokes nervous blithering in many folks.
9.24.2007 9:07pm
Anthony A (mail):
I think this particular case - and perhaps others like it - hinge on the prisoner asking about a particular subject. I don't know that I'd agree that asking "what's going on here" constitutes waiving Miranda rights. Asking "is this about ratting on my coke dealer", unprompted, is where the prisoner has waived his right against self-incrimination.

After all, if the prisoner feels compelled to break his silence, he could ask for a lawyer, of which right he was informed when he was informed of his right to remain silent.
9.24.2007 9:22pm
this is a tough one:
prof. Kerr is right to suspect BS, but it's hard to make much of a rule or even clear precedent (i.e. guidance to the police) if the case goes the other way.

"you can sit in the room but not closer than 5 feet, no sustained eye contact." "you can't sit in the room."

inevitably you'd be telling the police not to nonverbally coerce the defendant into talking again after he'd invoked Miranda.
9.24.2007 9:29pm
Dilan Esper (mail) (www):
This is a difficult case legally, because there are two conflicting principles here. On the one hand, voluntary reinitiation after invoking one's right to silence results in admissible statements, even though the suspect may not realize this.

On the other hand, the police are supposed to scrupulously honor a suspect's invocation of the right to remain silent and are not supposed to deliberately circumvent it.

The legal question is which principle controls.

It should not be, however, a difficult case for officers who wish to obey the law. The problem is that in too many police departments around the country, these sorts of shenanigans are trained and rewarded.
9.24.2007 9:33pm
Dilan Esper (mail) (www):
By the way, the toughest question this case poses is how to pronounce the defendant's name.
9.24.2007 9:34pm
Michael A. Koenecke:
After over 20 years of practicing (not criminal) law, I still find it fascinating how the issue of whether or not a defendant is actually guilty of a crime is routinely dismissed by lawyers as being utterly irrelevant to anything.
9.24.2007 9:42pm
33yearprof:
Physical coercion bad, psychological coercion good!

Smart cop (who has taken 120 hours of special training in how to coerce a confession without using "coercion" -- wink, wink, nod, nod) fools stupid (or maybe just scared) defendant. Either Miranda is a sound principle that court's honor and police officers can't successfully skate around or it's a cruel joke that only protects criminal procedure professors who read the latest cases.

IMHO, it is past time for the Supreme Court to decide it IS sound and to stamp out every form of police-initiated evasion.
9.24.2007 9:48pm
whit:
"I agree that the defendant isn't being interrogated here under Innis until he later waives his rights and is questiooned. However, he also didn't say anything incriminating here in response to the silence, whereas in Innis, the defendant blurted out incriminating statements in response to the overhearing of the conversation among the officers. Here, the defendant's response to the pressure was merely to reinitiate questioning; as I understand it, the doctrinal test here is whether the officers "scrupulously observed" the defendant's right to silence rather than whether he was "interrogated" by the psychological pressure under Innis. "

right. they most definitely did scrupulously observe it. there is no "artifice" here. there is no trickery to get around the invocation (we all know it's fine to use trickery (aka "tactical deception") in regards to affecting the substance of a confession, but not to gain a waiver). there is simply silence. silence has no relation whatsoever to interrogation. he did not waive his rights. the cops subsequently DID NOT QUESTION him. i don't see why that isn't clear as a bell.
9.24.2007 9:54pm
33yearprof:
Inevitably you'd be telling the police not to nonverbally coerce the defendant into talking again after he'd invoked Miranda.


What's wrong with a simple no police coercion, none at all, rule? Jail is inherently coercive. Just wait.

Oh, I forgot, at some point he'll get a l-a-w-y-e-r.
9.24.2007 10:02pm
whit:
" know this is a much broader issue than you bring up in this post, but maybe you can help me with a question that drives me nuts: Why Why WHY do people confess crimes to the police?!?"

there are a # of reasons why. it all has to do with psychology. i have elicited scores of confessions. the reasons differ due to the different reasons FOR the crime, the psychology of the offender, etc. in many cases, it is simply psychologically more comfortable to confess. in some cases, the person feels its morally right to confess (note that the 5th amendment does not say anything about morality. many people feel GUILTY when they do wrong, and feel relief when they confess. sometimes they feel that what they did is justified. sometimes they are PROUD of what they did. etc. etc. etc.

there is no one answer. what is generally true, is that many confessions come about simply when a person feels it is easier to confess than not to confess.

" Especially when they've just been told that they don't have to? It boggles my mind. It boggles my mind even more that the majority of police work involves confessions by the suspect. What am I missing? "

psychology.

"(I'll spare everyone my libertarian rant about how Constitutional rights can never be legitimately waived and how "willing, voluntary, and intelligent confession" is doubletalk)"

that's absurd. the constitution does not say you SHOULDN'T confess. nor does many people's sense of honor and morality. the constitution does not say it's WRONG to confess or RIGHT to shut up.

it is just as important to recognize that people have the right TO confess. they have the right to come clean about their crime, to 'fess up'

being a libertarian does not mean you think it's a violation of constitutional rights for somebody to confess. heck, many libertarians (would or should) argue that the miranda decision is a blatant example of judicial activism (which libertarians are supposed to be against).

a right means a CHOICE. you have the RIGHT to remain silent. what is unspoken there, is that you have the right NOT to remain silent.

if the founders had thought otherwise, they would have said "you have NO right to confess".

rights imply choices. just like you can choose NOT to carry a first amendment (effectively waiving your 2nd amendment rights) BY CHOICE, you similarly have the RIGHT *not* to remain silent, TO incriminate yourself, TO allow a search of your home without a warrant, etc.

this is a fundamental aspect of rights i think many people (coming from the defense and/or academic side) forget. it's a matter of choice.

fwiw, i have had people who confessed to crimes and even after they were sentenced and served time and/or penalties, that they were glad they confessed.
9.24.2007 10:02pm
whit:
"Smart cop (who has taken 120 hours of special training in how to coerce a confession without using "coercion" -- wink, wink, nod, nod) fools stupid (or maybe just scared) defendant. Either Miranda is a sound principle that court's honor and police officers can't successfully skate around or it's a cruel joke that only protects criminal procedure professors who read the latest cases. "

again, miranda is a principle that police must advise of rights. it is not a principle that suspects should not confess.

yours is a classic elitist argument i see all the time from academics.

i quote "fools stupid (or maybe just scared) defendant". there we go with the soft bigotry again.

most confessions are not gained (not in my experience) from FOOLING people. and the idea that defendants are just too stupid or scared to know not to confess is incredibly elitist.

one of the reasons i am successful at interrogation (NOTE THAT THE PURPOSE OF INTERROGATION IS ***NOT*** TO GET A CONFESSION. IT IS TO GET THE TRUTH. I AM JUST AS INTERESTED IN FREEING THE INNOCENT AS I AM IN SEEING THE GUILTY CONVICTED. it's an investigatory tool used to gather evidence, not GET confessions) is that i treat defendants with respect and dignity.

i don't assume they are stupid or scared. and defendants, SENSING that, are more likely to confess. generally speaking, a defendant who senses you are disgusted with him, hate him, look down on him, etc. will not want to confess to you.

reporters, mental health professionals, and others who are skilled at interviewing know this. so do cops.
9.24.2007 10:08pm
whit:
"On the other hand, the police are supposed to scrupulously honor a suspect's invocation of the right to remain silent and are not supposed to deliberately circumvent it.

The legal question is which principle controls.

It should not be, however, a difficult case for officers who wish to obey the law. The problem is that in too many police departments around the country, these sorts of shenanigans are trained and rewarded."

except that there are no shenanigans here. there is simply a silent cop and a talkative defendant. he has the right, the choice to speak, and he chooses to do so. that, in no way, violates miranda.
9.24.2007 10:10pm
whit:
"....It is not normal to sit in silence with another individual nearby in total silence for an extended period of time. Aren't any of you married ? I was a cop for 32 years and it is very common to advise a citizen of Miranda, have him refuse to 'waive' and drive or sit for long periods in silence. Prisoners are guarded every day, in the many thousands, in silence. Whatever could " You have the right to remain silent " mean, but that silence would ensue if that right is claimed ? "

exactly. often, i am sitting there typing paperwork for quite some time before a transport to jail or whatnot. if the defendant wants to talk, more power to him. if not, it makes my life easier . i can concentrate on the paperwork.
9.24.2007 10:12pm
33yearprof:
Whit posts:
the idea that defendants are just too stupid or scared to know not to confess is incredibly elitist.


Maybe so, but the statement is true nevertheless. In my years as a prosecutor and then defender, I never ran across a defendant who wasn't one or both.

Maybe California really IS different? ;-)
9.24.2007 10:17pm
whit:
"Just to be clear, I don't "want" anything except for courts to follow the law"
(in regards to my complaint about the judiciary wanting the mindread cops)

i was generally referring to the tendency of many courts to want to mindread cops when making miranda (and pretext... see: State v. Ladson in WA state for example) and detention decisions.

iow, many courts, contrary to the original miranda decision introduce into the fray, what the officer thought or intended when he was questioning "officer in your mind, was he in custody" etc?

states like Hawaii, extend miranda, to the "focus standard" which means anybody who is the FOCUS of the investigation must be mirandized. custody is irrelevant. and of course, "focus" is entirely a "what the cop thought" thing, not an objective reality standard.
9.24.2007 10:20pm
whit:
"Maybe so, but the statement is true nevertheless. In my years as a prosecutor and then defender, I never ran across a ^H^H^Hdefendant LAWYER who wasn't one or both. "

well, if we are going to be elitist, we might as well be ACCURATE too :)
9.24.2007 10:21pm
OrinKerr:
Whit,

You seem to be missing the point of my question. Do you have some cases on this in mind? Perhaps we should look to the cases.
9.24.2007 10:23pm
byomtov (mail):
Having taken a look at Oregon vs. Bradshaw I don't see that it is quite the same. In that case the defendant was given repeated Miranda warnings and ultimately signed a waiver. None of that happened here.

Further, the decision in that case finds that the defendant "knowingly and intelligently" waived his Miranda rights. I don't see how Thogsophapom can be said to have done that by simply asking "what is going on?"
9.24.2007 10:38pm
Bored Lawyer:
This may be a bit off topic, but one thing I have always wondered when reading these cases (not to mention watching innumerable TV shows) -- why is the person there at all? Is he under arrest?

If not, why is he or she not free to leave?

Put another way, short of placing the person under arrest, is there anything the cops can do to stop the person from simply getting up and leaving?
9.24.2007 10:41pm
whit:
orin, apparently i am missing the point. i am going to keep rereading your post until it comes to me!!

i'm missing something!
9.24.2007 10:42pm
OrinKerr:
Byomtov,

I believe the issue is whether the defendant initiated the questing, bringing us back to Miranda square one and allowing the police to start to ask questions again.
9.24.2007 10:43pm
JB:
Sitting right next to someone staring at them for some amount of time is not, to my mind, functionally different from leaving them alone in jail incommunicado for that amount of time, especially if they have something to confess.

I've never been in jail, but I've been in and out of the principal's office and other disciplinary situations enough to feel confident in that analysis.

That said, how should cops act around arrestees, if this is a violation? If this is intimidation, practically anything is.
9.24.2007 10:48pm
JB:
That is to say, if I was arrested, then left alone for a while in a cell, the first thing I'd think to say when the jailer returned would be "What's going on?"
9.24.2007 10:49pm
whit:
"Put another way, short of placing the person under arrest, is there anything the cops can do to stop the person from simply getting up and leaving?"

the case referenced here the person was under arrest.

i have had "non-custodial interrogations" at the police station. those are fine, and do not require miranda (since the person is not under arrest) but i make darn clear that the person knows they are free to leave (tell them that, do not block egress, etc.). heck, i got a sweet confession on a triple arson from a guy after an hour of interrogation at the station PRE-miranda (yes. it held up). told him he was free to leave, he drove himself there, he sat by the open door AND i bought him mcdonald's to eat while we talked.

but back to the question. a cop can detain somebody as long as it's reasonable. many of these detentions fall short of "custodial arrest". terry-stop (terry v. ohio) based on reasonable suspicion is an example. these are detentions, but relatively short in nature, and based on "reasonable suspicion" not probable cause. various other exceptions such as protective custody (mentally ill and danger to self or others).

also, cops can detain people pursuant to warrant execution (freeze the scene) or when responding to an in progress crime, and these detentions are not arrests. they must be short in duration, use force consistent with the offense, etc.

like if cops respond to a shooting in a bar, they go in an prone the entire bar out at gunpoint. technically, speaking EVERYBODY is detained. then, they start sorting it out.
9.24.2007 10:58pm
CEB:
Thanks to all who addressed my (mostly rhetorical) question. Rhetorical because I believe that most suspects are too intimidated/scared/stupid to realize that they don't have to incriminate themselves, and cops know it and exploit it; thus the "youhavetherighttoremainsilent blah blah blah what happened here? Tell us and we'll go easy on you." We may as well have the police knocking on our door saying "Do you wish to waive your second amendment rights and hand over your guns? Are you sure? Are you sure you're sure?"
9.24.2007 10:59pm
Golem:
In Rhode Island v. Innis, the Court defines "interrogaton" in the context of Miranda as words or actions which "...must reflect a measure of compulsion above and beyond that inherent in custody itself."
9.24.2007 11:45pm
Libertarian1 (mail):
Professor Kerr: In reading both sides of this debate it seems to me a substantial number of you are desperately trying to find some way, any way to let a guilty man walk. Let's parse the Miranda decisions and find something the police did wrong so we can overturn the guilty plea/verdict. The standard reply is certainly convict him but do it constitutionally. Well, for too long the apologists have defined the constitutional boundaries. Maybe this case is an example of a new definition of what is constitutionally permissable.

I understand good police work and a lot of luck will get many convictions. I believe in our Bill of Rights but I also want to see the guilty punished not only the innocent let free.

Every time I see a violent crime and read the previous arrest records of the defendant I cringe. Why isn't he in jail? I hope the police do everything possible, straddle the legal line but convict the guilty.
9.24.2007 11:46pm
neurodoc:
Do those who think the court's decision was "wrong" see it as "unfair" to this defendant? The LEOs did not nothing that comes remotely closely to shocking my conscience (yes, I appreciate that the legal standard is not what does or doesn't shock my conscience); I believe most citizens would see the LEO conduct as entirely proper and the use of this man's confession as in no way unfair to him or incompatible with their sense of what is just; and I don't fear that this decision will either start us down some slippery slope toward that which would lead to convictions of the innocent or that it will invite truly coerced confessions.

OK, if you were talking to non-lawyers, what would you say to convince your listeners that they should want courts to exclude evidence like a confession obtained in the way this one was obtained, that unhappy results would follow if courts did not do so? Do you think you could persuade many non-lawyers?

(OK, in the interests of full disclosure, our daughter went to college in Brunswick, ME and I do not look favorably upon those who would deal drugs around there, if indeed anywhere.)
9.25.2007 12:36am
Skyler (mail) (www):
Silence is uncomfortable? Maybe silence for weeks or months, but not for a few minutes or even a few hours. Good grief.

Sounds like a criminal had insecurity. Good for us, the good guys.
9.25.2007 12:41am
Dave N (mail):
I don't think this case qualifies as interrogation either. I agree with Whit's analysis. Miranda is an objective test--and I am concerned about the introduction of a subjective element (how long can the officer sit and say nothing before that becomes coercive?).

As for the reasons people confess, I agree they are psychological. People are often itching to say what is eating at them. As I tell my criminal justice students, "Confession is good for the soul and great for the prosecution."

Since we are talking about Miranda, my pet peeve is how television makes it sound like the warning is required anyone is brought into custody. Awfully bad technique IMHO. Geez, what happens if the suspect invokes, particularly his right to counsel? (I tell CJ students that if I ran a police department and someone other than the officer in charge of the case gave Miranda warnings that would be worth a 3-day vacation without pay).

Which leads to my final point. I consider myself a law abiding person but here is my rule. If a police officer ever reads me Miranda warnings, I will remember he is not my friend and say four simple words:

"I want a lawyer."
9.25.2007 12:56am
Redlands (mail):
We're talking about coercion here? Due process? If so, Miranda is secondary, if that, to the court's ruling. And if that is so I'm uncomfortable with lowering the bar so very low that a relatively short period of silence would constitute coercion. As I think someone mentioned, in essence, "The Best of Lawrence Welk" might suffice to induce a confession by some of us.
9.25.2007 1:03am
David Chesler (mail) (www):
I've only been read Miranda once, by security guards who ultimately paid a settlement for their actions that night. But when he got to the part about "Do you understand these rights?" I said "No" and he said "What do you mean no?" and I said "I am not an attorney. I don't understand all the ramifications. I would like the assistance of an attorney please." and he said "You don't have to understand the ramifications" and I said "Well then I guess I do" and then he said "What's your name" and I said "I'd like to use that right to remain silent you just told me about" and he said "If you don't tell us your name we'll hold you here for three days" so I told them. Idiots.
(There weren't any questions of fact in dispute anyway. They'd attacked me and detained me for "trespassing" in the lobby of my parents' building and I said "OK, then I'll leave if you'd like" and they said "No, it's too late". Money-wasting idiots.)
9.25.2007 1:25am
Kelvin McCabe:
Actually, in response to the question as to why suspects confess, i would argue that stupidity is a very big part of it - - but its ignorance of their own stupidity in relation to the interrogator that is precisely the problem. Combined with a complete lack of knowledge of legal principles, principles which the detective/officer/interrogator is versed in, and its a recipe for disaster.

And while this question as to why people confess to crimes they actually did commit is interesting, perhaps some thought should be given to the many cases (some of which are being overturned thanks to modern DNA testing) wherein people confess to crimes to which they were completely innocent. These are the cases where the interrogators' tools of the trade really come into focus.

Cops lie to suspects. Cops tell them they were picked out of a photo lineup by the victim when they weren't, that their fingerprint was found at the scene when it wasn't, that a co-defendant has already confessed and implicated them in the crime when they haven't, and that if they just tell the police what happened, everything will be just fine and they will get to go home or their cooperation will bode well with the judge; some cops just beat the suspect or threaten to put him in a jail cell with a rival gang member, etc...etc...etc...the list of techniques employed is as diverse and long as the list of defendant's who have confessed.

But its precisely because of the fact that innocent people have confessed to the most heinous of crimes - and have been wrongly condemned to death by the State-some of whom may already have been executed, that the rule of Miranda, which we all know is rooted in the 5th amendment, has and should be strongly enforced. I am struck that some people here essentially advocate the suspension of constitutional rights (in the bill of rights no less) simply because the defendant was caught redhanded. This slippery slope thinking is dangerous - if we dont need to honor the 5th amendment right against self incrimination, or we say the defendant need not be confronted with the witnesses against him because he is obviously guilty, why not just say, the defendant isnt entitled to a trial at all and just summarily impose a sentence upon arrest? Such a system of justice isnt worthy of a tyrannical dictatorship!

There's a reason why the 5th amendment exists, likewise for the 4th, 6th, and 8th, rooted in history and the experiences of people long dead - for which anyone who cared to look would find ample reason for their inclusion (or the promise of their inclusion) in order to gain support for the very constitution to which they were designed to be an integral part and without which the constitution may well have never been ratified. But now everybody has a problem with them because some guilty people go free. Tough shit! A balance had to be struck between the rights of the individual citizen and the power of the State over the individual. That this balance tips in favor of the people to the detriment of the State in several of the bills of rights is a fact to be celebrated, not chipped away to nothingness by ever increasing semantic arguments over what constitutes "custody" or "interrogation" and "coercion."

That this goes on in a legal blog and the appellate courts with alleged legal professionals really does not bode well for all the rest of the legally uneducated citizenry, ignorant of even basic notions of their rights, within a state apparatus none to willing to fill in the educational gap and in a society which acquiesences (by silence) into being the prison capital of the world.

Sorry for the rant, i just felt the need to unburden my conscience like so many of whit's alleged confessional victories.
9.25.2007 1:58am
Richard S (mail):
Professor Kerr seems to want to keep the case confined to what the law is under latest batch of Court decisions, which will remain the law until the constitution lives again and changes again. That being the case, why not ask how the constitution ought to live. What is a prudent way to negociate between the desire to convict as many guilty people as possible with the desire to convict as few innocent people as possible. No system is perfect. There will be mistakes as long as there are any convictions.

Many commenters here seem to think, perhaps with good reason, that this is the kind of thing that ought to be legal.

Beyond this, is Miranda itself, as currently understood by the courts, as good as we can do? As I understand it, if a criminal can be tricked into confessing simply because he is stupid, has a guilty conscience, boasting, or for some other reason, and all that is done is that the police play word games and perhaps some mind games of certain sorts (which ones would be too far is an interestin question), there constitution should not be construed as to prevent it. Under current circumstances, that's what the prudence of the law seems to demand.

How's that for a living constitution argument?
9.25.2007 2:04am
Richard S (mail):
I should perhaps clarify. A reasonable technique would be one that has a low likelihood of yielding false confessions.
9.25.2007 2:08am
abw (www):
Anyone want to bet there is some lawyer somewhere who's argued that leaving a suspect alone in a holding room was intimidation and coercion and a most serious violation of rights?
9.25.2007 3:33am
ScottB (mail):
CEB,

Your question is not at all rhetorical. There are concrete answers, and I'd like to try to provide them. Like Whit, am a police officer who has obtained many confessions. I will start with some anecdotes, and then attempt to provide generalities.

I recently arrested a woman for murder, several days after the incident. She confessed to killing a man and accidently wounding her friend. She also confessed to being a felon in possession of a firearm. Afterwards, I had to wait with her for an hour because the jail was backed up, so I chatted with her. I asked her how it felt to confess, and she said, "It was just a relief. All the fear I felt over the last few days, it's over with. Now I can move on."

Several years ago, I arrested a guy upon serving a search warrant. When we knocked on the door, he ran up the stairs and threw a bag out the window. The bag had a machine pistol, a sawed off shotgun, and a bunch of drugs. The guy was a convicted felon many times over. During the interview, he said that he knew he was caught red handed, and that he hoped he would get some leniency from the prosecutor for an early confession. I never discussed that with him, altough I would have been allowed to mention the possibility, just not promise it. The defendant was pleasant, and laughed several times during the interview. He expressed the belief that it would be stupid of him to deny the crime.

CEB, you're thinking of this issue from the perspective of an innocent person. Why would an innocent person confess? Well, there are no good reasons to confess- it has to be coerced. However, a guilty person may have good reasons to confess.

Confession feels good. Especially if the defendant feels badly about what he or she did. It's a cathartic experience. It provides relief to the feelings of guilt. The defendant may regret it later, but at the time, it's what they wanted. An innocent defendant, obviously, will not get the same kind of relief, so any interrogation technique aimed at providing this relief should fail with an innocent defendant.

People who admit guilt early are, in fact, treated differently. In California, this is a circumstance in mitigation which can be used by the judge in determining a sentence. Experienced criminals know this. In fact, our society values admissions of guilt in a non-criminal context. This is known as taking responsibility for one's mistakes. The fact that some criminals have this value, and that it affects their decision making in a criminal context, should not be a suprise.

When I interrogate someone, I generally want them to like me, or at least respect me. I want them to care about my opinion of them. If they appear to feel guilty about the crime, I simply let them know that I'll listen to what they have to say. It may very well be that no one has ever said that to them, and they value the opportunity to talk to a good listener. If they appear to believe that they were caught red handed, I will tell them all the evidence I have against them. I may even read them the California Penal Code section on early admission of guilt. I love to show them my surveillance photographs. How could surveillance photographs make an innocent person confess? They will make a guilty person think, "He knows I'm guilty." They will make an innocent person think, "He knows I can't be guilty."

Anyway, these are two concrete reasons for confessions. Confessions are often not be in a person's legal interest, and because of that, they can be dificult to understand. However, people have more interests than their legal ones. A good interrogation is friendly, polite, calm, and quiet. I wish I had an opportunity to explain this to juries more often.

So, CEB, instead of wondering why someone would confess, imagine instead that you did something that you were ashamed of. Imagine that you were caught in the act. Imagine that someone whose opinion you respect said to you, "I know how difficult this must be for you. But you have to face what you did. You can't move on until you face the truth. You can't escape what you did, but you can take responsibility. You want to be the kind of man who takes responsibility, right?" Not everyone would confess, but some would.
9.25.2007 3:56am
David M. Nieporent (www):
This is not respecting Miranda. This is a clear police attempt to try to get around the fact that the suspect invoked Miranda. If the police respected Miranda, they would leave the suspect alone, not put him in a socially uncomfortable situation where he has to sit in silence with a police officer, which would lead the vast majority of individuals would ask "what is going on." Basically, the police are being sneaky and playing games to get around Miranda. You don't have to be able to read minds to see that.

In a sense, in this circumstance, the silence is a form of interrogation
There are three problems with that. The first is that you're skipping a step. The silence is not "a form of interrogation" in any sense, because it doesn't elicit information, nor attempt to do so. The silence is, at most, a preliminary step to encourage the suspect to initiate conversation so that an interrogation can begin.

The second is the practical implications of what you're saying, which is that a suspect has a constitutional right to be alone.

The third, and most important, is the, well, weird notion -- which, to be fair, some judges also subscribe to -- that there's something "wrong" with a suspect confessing, that it's something to discourage. The constitution, of course, protects our right to have counsel and our right not to speak, but that doesn't mean that there's something legally, morally, or societally desirable about suspects refusing to speak. We went from the correct notion that suspects have the constitutional right not to confess to the utterly false notion that the constitution prefers that suspects not confess.

What "getting around Miranda" means here is giving a suspect the opportunity to confess. Great. That's what we want. The Constitution exists to prohibit coercion, not to discourage confession.


I'm reminded of Scalia's dissent in Minnick:
Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid "inconsisten[cy] with [the] purpose" of Edwards' prophylactic rule, ante, at 8, which was needed to protect Miranda's prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution.

It seems obvious to me that, even in Edwards itself but surely in today's decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice.

Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a "mistake." While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, "admissio[n] of guilt . . . , if not coerced, [is] inherently desirable," United States v. Washington, 431 U.S. 181, 187 (1977), because it advances the goals of both "justice and rehabilitation."
9.25.2007 6:36am
Dave in Alexandria (mail):
This is a wonderful thread, rich with possibilities for satire. Somebody has already mentioned the "Comfy Chair" from the Monty Python "Spanish Inquisition" sketch.

Woody Allen also mined this vein in "Bananas". A trial is underway when the courtroom door bursts open and a man sprints in and throws himself to his knees before the judge. "All right!" he says. "All right! I did it! I killed her! But I couldn't take it anymore! She was always hounding me and I took it as long as I could, but ..." He looks around the courtroom, with a puzzled look on his face. "Isn't this 'People versus Liebowitz'?" The judge says, "Next door." And the guy backs out of the courtroom and runs away.
9.25.2007 10:36am
Daniel San:
OK: The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealier. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.

The investigator essentially tells the defendant, "We're trying to get you to talk." The relevant Miranda inquiry is, "Who re-initiated the interrogation concerning the crime?" In this conversation, I find it odd, at best, to say that the Defendant did. I have no problem with the silent treatment, but "What's going on?" is not the same as, "I am ready to give you my statement." If Miranda has any meaning other than that certain warnings must be read, this is a violation.

I have no problem with some evasions of Miranda. After all, it is a prophylactic rule that goes beyond the actual requirements of the Constitution. (Only a lawyer would say that jail in inherently coercive). But if "What's going on?" or a grunt or a sneeze will undo an invocation of the Miranda rights, then it is time to reverse Miranda and announce a different rule.

BTW, people want to talk. Find a jailer who trusts you and ask how many confessions they overhear, just in conversations with other inmate. With a jailer who is chatty with the inmates, many defendants who insist on the innocence with their attorneys will give the jailer the full story. Most jailers don't like to testify, so they will pass the information along only in the big cases.
9.25.2007 11:00am
David Chesler (mail) (www):
How much would it deter justice if confessions other than those in open court were not given the weight of testimony? (I'm not saying their fruit ought to be poison.) Same for hearsay exceptions for statements against interest, like to jailhouse informants.

Downside: Having confessed in that personal conversation and thereby gotten it off his chest, and having time to reflect on the consequences, the no-longer-feeling-guilty accused is less likely to confess again. Upside: Less manufactured evidence.
9.25.2007 11:17am
OrinKerr:
Anybody have any cases on the use of psychological pressure to get a defendant to reinitiate questioning? I think that's the issue; I would be delighted to be proven wrong on this one, and perhaps I'm just missing something, but I think the answer is found in the cases and the doctrine rather than our personal senses of what is nice or whether Miranda was a good idea.
9.25.2007 11:49am
Richard s (mail):
By why is existing law the only relevant question to ask? Presumably law professors should teach students what the law is, but ought they also to teach why it's the law, and whether it's good law. After all, some of them might become legislators--a position they might hold in any of the three branches nowadays.
9.25.2007 12:46pm
abu hamza:
the problem is for people like whit, and others, "small interview room" "attempt to resume questioning" "silent interrogation" etc. are just words on a paper. there is no experience behind it to understand the true impact of what is occurring behind those innocuous words. Same thing with most judges and "officer safety" "protective sweep" "stop and frisk" -- they don 't know what it would be like to be detained in such a way, passerbys eyeballing you, humiliating and scary. It would never happen to them.

it's just like in crim. pro. class when we encounter the words "suspect consented to a search" in a regurgitated case opinion recitation of facts, we can't know what really happened.

I feel like the 3 to 5 minutes of glaring silence, and a "what's going on?" question DOES NOT re-initiate questioning. The suspect wants to know if he's still not free to leave, just a status question about what the hell might be happening to him, or will shortly happen to him. It is ridiculous to snag this inconsequential mtutering and transform it into a doctrinal-shifting talisman, efficiently eroding the suspect's constitutional rights.
9.25.2007 1:18pm
whit:
"the problem is for people like whit, and others, "small interview room" "attempt to resume questioning" "silent interrogation" etc. are just words on a paper."

you are kidding me right? i have interviewed and interrogated hundreds of witnesses/suspects/victims in similar circs, and i have been the subject of interrogations and interviews myself

so, it is not a "problem for people like whit" that these are just words on a paper.

it's something i have personally experienced hundreds of times, as well as had my actions reviewed in courts at various levels.

" there is no experience behind it to understand the true impact of what is occurring behind those innocuous words. Same thing with most judges and "officer safety" "protective sweep" "stop and frisk" -- they don 't know what it would be like to be detained in such a way, passerbys eyeballing you, humiliating and scary. It would never happen to them"

however, it HAS happened to me. i have been pat frisked, i have been detained, and i have conducted hundreds of those myself.

so don't deign to tell me what my life experience is.
9.25.2007 1:59pm
whit:
"I feel like the 3 to 5 minutes of glaring silence,"

this is editorialization, masked as analysis.

"GLARING silence" (emphasis mine)

it was SILENCE. whether it was glaring silence is an opinion, unsupported by anything, but your predetermined notions.

talk about bias. ... incredible
9.25.2007 2:01pm
whit:
"The third, and most important, is the, well, weird notion -- which, to be fair, some judges also subscribe to -- that there's something "wrong" with a suspect confessing, that it's something to discourage. The constitution, of course, protects our right to have counsel and our right not to speak, but that doesn't mean that there's something legally, morally, or societally desirable about suspects refusing to speak. We went from the correct notion that suspects have the constitutional right not to confess to the utterly false notion that the constitution prefers that suspects not confess"

bingo. spot on.

exactly

there is a presumption that all searches w/o warrant are "presumptively unreasonable" ... then, we look to see if the exceptions are there (plainview, consent, incident to arrest, etc.)

there is no such presumption with confessions. but people think (as you state so well) that the 5th amendment means suspects SHOULD NOT confess, and they ignore that the 5th amendment, like all rights, gives people a choice.

you can carry a firearm, but you don't have to. you can say all sorts of nasty things (1st amendment) but you don't have to. etc.

the miranda warnings (as given in most agencies) even demonstrate that bias "anything you say can be used agaisnt you"

while that is true (kind of), it's not really accurate. anything you say could just as well be used IN YOUR DEFENSE.

it is not true that everything said post miranda is incriminating (especially if you are innocent). numerous times, i have had interrogations (post and pre miranda) where what the person said EXONERATED them, etc. so, it would be more correct to say "anything you say can be considered in your trial". because everything you say will not be used against you. it very well can be used FOR you.

one defense attorney told me that he told all his clients, that if ever questioned by police and mirandized, then they should not say anything, and ask for a lawyer. i asked him "what if they are innocent?" he laughed and admitted that his clients were rarely innocent, and he didn't want to give them a nuanced decision like that, because they were so usually guilty, that it's just easier for them to remember never to talk. he said that if they WERE innocent and could explain why/how, it might be a good idea to talk.

especially in states that have a focus standard (where pretty much everybody with a pulse has to mirandized), it is not true that talking to the police is not in your best interests (assuming that incriminating oneself is not in your best interests for the sake of that point). and of course, it most definitely is not in society's best interests, or justice's that nobody confesses and/or talks to police.
9.25.2007 2:10pm
whit:
"orry for the rant, i just felt the need to unburden my conscience like so many of whit's alleged confessional victories."

love the snark.

its always the sign somebody has lost the argument, when they resort to personal attacks, kelvin

so, i guess you have.

btw, read ScottB's post. he says it all, more eloquently than i did, on some of the reasons why people confess.

and to repeat - interrogations are not designed to get a confession. they are designed to elicit truth (as interviews in general are).

do suspects falsely confess? sometimes, but it's very rare, and its almost always obvious when they do (realizing that a convincign false confession may never be caught, so that's kind of selection bias, but i digress)
9.25.2007 2:18pm
Ryan Waxx (mail):

its always the sign somebody has lost the argument, when they resort to personal attacks, kelvin


No, it isn't. If I were to say "Grass is green, you fool!" would that make the grass purple? No, it would not.

People who have 'lost the argument' often resort to personal attacks. But that does not mean that people who resort to personal attacks have lost the argument.

Indeed, people who seek to use logical fallacies like that to 'win' an argument on grounds other than the merit of their ideas could by your own standard fairly be said to have lost the argument.
9.25.2007 3:42pm
Bill Dyer (mail) (www):
Miranda ver. 2.0:

You have the right to remain silent. No, really. When we say "silent," we mean not saying a word if you don't want to. And when we say "right," we mean, even if we try to persuade you that it's in your own best interests to talk to us, you have no obligation whatsoever to agree with us. The Constitution preserves your right to make us really, really frustrated. In fact, you should really look at this like it's all a game, and the only way you can win the game is by frustrating us by being absolutely silent and refusing to talk to us. Most people in prison, whether they're guilty or innocent, are there because they were too stupid to take advantage of this little tip I'm about to tell you one final time: You have the right to remain silent.
9.25.2007 3:46pm
David Chesler (mail) (www):
Background question: How do you get from a right to not answer questions (which is shorthanded as a right to remain silent, since, especially with Marcel Marceau dead, it's hard to ask for an attorney while remaining silen) to a right not to be asked questions?
9.25.2007 3:50pm
whit:
"People who have 'lost the argument' often resort to personal attacks. But that does not mean that people who resort to personal attacks have lost the argument. "

well, yes. if you want to get pedantic and like all precise and stuff :)

"Indeed, people who seek to use logical fallacies like that to 'win' an argument on grounds other than the merit of their ideas could by your own standard fairly be said to have lost the argument."

im not interested in "winning" an argument. im interested in a discussion, especially with people who have different views. that's how one LEARNS and sometimes even changes one's pov. that's a good thing.

if you argue (or discuss) solely for the point of winning (as i would expect from a lawyer... :) ), then you are pretty much admitting that your mind is already closed to new ideas, and facts that tend not to support your POV. that's not a discussion. that's just "talkin' smack"

that bores me.

kelvin, instead of discussing the underlying facts, just made a personal attack on me and my bona fides. that's typical OF somebody who is desperate and has no rational argument. heck, he MAY have one. but his behavior did not support his case.

note that a good interrogator, much like a person having a discussion doesn't want to "win". he seeks truth.

if you approach discussions (as many lawyers who are used to the adversarial system do) as opportunities to "win", then you may not understand the concept of give and take, rational discussion, etc.

many smart people have helped me learn and often change my mind on various such subjects. they did not do so by petty childish attacks, like kelvin uses.

hth
9.25.2007 5:58pm
whit:
"Background question: How do you get from a right to not answer questions (which is shorthanded as a right to remain silent, since, especially with Marcel Marceau dead, it's hard to ask for an attorney while remaining silen) to a right not to be asked questions?"

much the same way you get from the fifth amendment to the miranda decision itself. the miranda decision says anytime somebody is in custody AND being interrogated, that they must be advised of various rights before being questioned. that is, of course, nowhere in the constitution. similarly, many states (HI comes to mind) extend miranda even further, to a focus standard, where even if somebody ISN'T in custody, that they STILL need to be advised of miranda rights if they are the "focus" of an investigation - iow, if police suspect they might have done something bad.

so, in brief, they get there (imo) because various judges want to inject their personal opinion about what they wish the constitution said vs. what it actually says.

some call that "judicial activism"
9.25.2007 6:02pm
OrinKerr:
Richard S writes:
By why is existing law the only relevant question to ask? Presumably law professors should teach students what the law is, but ought they also to teach why it's the law, and whether it's good law.
Richard, I think there may be some confusion. This is not a class, and you are not my student. Of course, if you have good advice for me as to how I should teach my classes, I am always eager for suggestions. But my interest here is in whether the court was following the law. You may not find that interesting, but fortunately there are many other blogs for you to read that may cover different questions that you may find more interesting.

Best,
Orin Kerr
9.25.2007 7:42pm
Richard S (mail):
My apologies. My impression was that your concern was only with existing law because you're used to teaching only that so that law students can lean what the law is. I was trying to point out that that's not the only question worth pondering.

After all, isn't one virtue blogs that they enable readers to question the questions bloggers are raising?

On the other hand, your comment, "I don't know of any other cases on this particular technique, but this case has my b.s. detectors going off big time" seems to enter into the realm of subjective and normative judgment, and not simply asking whether the ruling is congruent with current law. Referring to your "b.s. detectors" suggests to me that you don't approve of what the police did.

Hence you seem to be asking what would be a reasonable ruling, even though the stated question only had to do with Miranda, as currently understood by the Courts. But that question cannot be answered without asking about the reasonableness of Miranda in the first place. Of course, Coke being correct that the law is an artificial system of reason, the reasonableness of following Miranda is partly due to its status as established precedent.
9.25.2007 10:15pm
Dave D. (mail):
....The odd thing about the Miranda warning is that the folks I read/recited it to often seemed more interested is having it given to them than in the meaning the words were meant to convey. It wasn't uncommon for them to prompt me with " Why haven't you read me my rights ? " after they were arrested but before I could sit down and properly interrogate them. When I had a dead bang case, I often didn't interrogate them at all because I didn't need to and didn't want the extra work interrogation entails. This vexed many of them; some were overjoyed and told me that their lawyer would get them off because I didn't Mirandize them. Not all of these were stupid people. Sometimes the arrestee's recited Miranda along with me. Many, many times they interrupted and told me they knew what I was going to say and didn't have time for it.
...Miranda has been so often portrayed in films and TV, often wrongly, and much of the public thinks it's reading is more important than it's meaning. Arrestee's, especially intoxicated ones ( the majority for me ) were often loud and obnoxious. I sometimes just quoted the first line " You have the right to remain silent " and told the jerkiest ones that the Supreme Court REQUIRED them to shut up and be silent.

...Sometimes, it worked.
9.25.2007 10:25pm
OrinKerr:
Richard S,

I'm afraid your sense of what you thought I was really getting at but not actually saying is inaccurate.
9.26.2007 4:20pm
David Chesler (mail) (www):
Like most other prayers including the Friends are Leeches people don't try to understand the ceremonial words, they're just part of the ceremony. (Thread convergence - the kinds of Asperger-like geeks who would wear LEDs to an airport DO tend to take words very literally.)
9.26.2007 4:25pm