“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”
Anyone who has ever watched a cop show can probably fill in the rest. These words ring out in television dramas, at the climax of any episode. They’re a shout of victory for the “good guys” and as good as a death sentence for the “bad guys”. If television is anything to go off of, those Miranda Warnings are inseparable from the handcuffs; one requires the other. On television, they are as married as the Good Cop, Bad Cop routine and cops, coffee, and doughnuts.
Unfortunately, the cop shows we know and love have provided the citizenry with pretty lousy legal advice. It’s not anyone’s fault really; television exists to entertain. It sounds pretty impressive when the cop finally, after an intense hour of searching, gets to slap the cuffs on a suspect, with that satisfying click, while reciting the Miranda speech. The speech changes the game. The cop and the subject are no longer equals; the suspect has to submit to the authority of the officer at this point. There isn’t a choice. When the cuffs go on and the magic words are spoken, viewers and the suspect alike know the game is up and someone is going to jail. It’s not that the cop in and of themselves is impressive; it’s that with the utterance of those words, the full power of the judicial system is now crashing into the suspect like a tidal wave. It’s no longer a cat chasing a mouse but a pride of lions smothering the mouse.
The problem is that Miranda Warnings aren’t so grandiose in real life. All they do is vocalize Constitutional rights that people already had. They basically say: “Hey, in case you didn’t know, the Fifth Amendment applies to you!” To be fair, television hasn’t attempted to change Miranda v. Arizona’s purpose, not really. It’s not the warnings themselves that television gets wrong, but rather the timing of their application. What television doesn’t say is this:
Police DO NOT have to Mirandize people they’ve placed under arrest.
This concept is foreign to the American way of thinking because it has not been popularized by American media. But it’s the truth. All the officer has to say when they place someone under arrest is…“you’re under arrest” (or, in some states perform the functional equivalency. For the record, if you’re in handcuffs, locked in a police car, and on the way to jail – you’re under arrest; even if the officer didn’t say so).
What most folks don’t realize is that Miranda Warnings only come into play when GUILT SEEKING QUESTIONING is introduced to the arrest. So basically, when a suspect is going to be interrogated. So essentially it goes like this: an officer MUST Mirandize a suspect if:
1. The suspect is in custody
2. The officer wants to ask guilt seeking questions
The exact verbiage is this: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Chief Justice Warren, “Opinion of the Court” Miranda v Arizona, 1966).
That’s it. Miranda rights advisement exists to let a suspect know that since they are under arrest, they have the right to not incriminate themselves by talking to investigating officers and they have the right to have counsel present should they decide they do want to talk to investigating officers. Now, a suspect can invoke Miranda before they get to the questioning stage and that’s fine too, but Mirandizing isn’t part of typical arrest procedure because it doesn’t have to be.
Arresting isn’t as glamorous as television wants people to think it is. In fact, the process of arresting someone is pretty sobering. Officers are taking away someone’s freedom when they place someone under arrest. They aren’t thinking, “what can I say to make this sound cool?” More likely than not, they’re making sure over and over in their mind that arresting that individual is the right choice. Reality is this: you can’t really unarrest someone. You better be sure you’re doing the right and LEGAL thing. If not, it’s the officer’s career – their livelihood, the sacrificed time with family, the endless and thankless work shifts – all down the drain.
Dirty cops seem to dominate the psyche of the American public in general, understandably. It’s scary to think that there are uncaught criminals in uniform out there who have the authority to take away someone’s freedom. But the truth is that the population of Dirty Cop is a relatively small one. Most police officers don’t want to violate people’s legal rights. Why? Because they don’t want to be sued for all they’re worth.
The moral of the story: television cops get to sound a lot cooler (and do way less paperwork) than real police officers do. Miranda exists to protect those who find themselves under arrest and suspect in a police investigation.