Nary a day goes by when I don't hear this phrase at least once. Thanks to Hollywood, nearly everyone believes, or at least wants to believe, that the sine qua non of lawful and ethical police conduct is where they initiate any arrest with the famous preamble, "you have the right to remain silent yada yada..." It should flow from the police officers' lips as fluidly as those who are paid to say, "welcome to McDonald's, may I take your order please", shouldn't it? The answer is "no". Yes, I am a criminal defense lawyer, and the answer is still "no". Sorry. This deeply ingrained belief, held by nearly everyone, is a powerful example of how the mass media misleads the public. So, was the Miranda Rule contrived by Paramount pictures? No. It was actually written into law by the United States Supreme Court, led by Chief Justice Earl Warren, in the landmark decision Miranda v. Arizona in 1966. It is one of the most, if not the most, significant Supreme Court actions to deter police misconduct. It was designed to do one thing and one thing only. It was designed to prevent the police from forcing people against their will (regardless of their guilt) from confessing to crime. However, it has not, as was intended, put an end to coercive interrogations by the police. But it may have deterred a great number of them. It has brought about some unintended changes and not all of them are positive ones.
Yes, innocent people sometimes confess to crimes they did not commit and guilty people are often led by the police to worsen their circumstances in a way which violates the spirit of the constitution. So, by dampening the polices' temptation to spend hours upon hours grinding someone down through a coercive interrogation, fewer innocents will confess, and fewer guilty people will be forced, against the spirit of the constitution, to be witnesses against themselves. Like many well-intended efforts, the Miranda v. Arizona ruling did not achieve all that it set out to achieve. In my view, its most positive contribution is that it made a few important constitutional rights reciteable, if not precisely understood, by practically every member of our society. It did not put an end to coercive conduct by law enforcement; not by any stretch of the imagination. This is due to the fact that police still feel quite justified in using their inherent power to intimidate, and otherwise manipulate, people into confessing to their crimes, and are not going to let some phony baloney technical rule (written by lawyers, no less!) get in the way of solving a crime. Yes, they do, on occasion, read the advisement, as required by law, but not surprisingly, it has not put an end to confessions. People still confess. And what they don't necessarily appreciate while they are doing it, is that they are destroying every chance they might otherwise have in getting favorable treatment in court.
Confessing is seldom, if ever, going to help someone get a better deal in court. One operating fallacy is that you won't get credit for early acceptance of responsibility if you wait to talk to a lawyer first. That is simply false. The other operating fallacy is that you will make the police angry if you don't confess, and will therefore worsen the outcome. Firstly, if a police officer is angered by someone exercising their constitutional right to remain silent, they ought to strongly consider a change in professions, if not citizenship. The constitutionally guaranteed right against self-incrimination is as American and mom and apple pie! Secondly, your goal is not to make friends with the police officer. Rather, your goal is to avoid incriminating yourself. Let them be angry. That, in and of itself, probably helps you more than it hurts you. Let their emotions get the better of them. And keep your mouth shut. Do honor to our great constitution by not incriminating yourself!
It appears that the Miranda advisement, when read, is not understood as anything more than a familiar police ritual. While the police are saying,
"you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present while being questioned. If you cannot afford a lawyer, the court will appoint a lawyer to represent you...",
the listener is most likely thinking something along these lines,
"Crap! I'm really in trouble now. I guess they aren't going to let me go with a warning after all! They believe I did it! I'm screwed no matter what! What can a lawyer do to help!? How am I going to get out of here?! Maybe if I cooperate with them, and tell them what they want to hear, which is that I did it, they will appreciate that and maybe let me go home...or at least stop scaring me"
The most negative impacts of Miranda v. Arizona are as follows:
1. That police think that, by reading the Advisement, they are thereby rendering their arrest "by the book". It gives the police an easy (and cookbook recipe-like) way to legally sanitize the encounter without necessarily honoring the spirit of the constitution.
2. That arrestees believe that the police are supposed to read the Advisement every time they arrest someone and that they must do so early on in the encounter. Because the advisement, if it is read at all, is read late in the encounter, the arrestees form the opinion that they are being mistreated due to the fact that police aren't, according to their Hollywood-based understanding, following the one rule of police conduct of which they have become aware. Accordingly, the individuals develop a bad attitude toward the officers. This bad attitude can hurt the arrestees chances of getting a good deal in court, and also tends to validate negative views police carry toward the larger population. It widens the "us" (the police) versus "them" (the rest of society) gap which, I strongly believe, is the root cause of nearly every instance of police misconduct.
So, when do they have to read the Advisement, you ask? Only when you are in handcuffs or are otherwise confined and they happen to want (or need) you to confess to something.