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Stephanie Francis Ward: Welcome back to the ABA Journal’s Asked and Answered. You have the right to remain silent. We’re 50 years after Miranda v. Arizona. Do people really know what else Miranda rights include?
I’m Stephanie Francis Ward, and on today’s episode of ABA Journal’s Asked and Answered, we’re discussing how the country’s understanding of the Miranda warning has changed over the years.
Joining me is Russell Covey, a criminal law professor at Georgia State University College of Law who has written about Miranda warnings used in pop culture. Welcome to the show, Professor.
Russell Covey: Thank you. Thank you for having me.
Stephanie Francis Ward: Of course. Are there things about the Miranda warning that people should know but often don’t?
Russell Covey: Well, people should know that Miranda and the warnings that it represents is for real. It’s not a mere formality. People, I think in general, suspects, people who are being interviewed by the police, don’t take it seriously. And they should. Statistics have shown that somewhere between 80 to 93 or 94 or 95 percent of suspects waive their Miranda rights rather than evoke them. So I think that that’s certainly significant.
People should also understand that Miranda rights don’t expire when questioning begins, but you can invoke your right to silence, or your right to counsel at any time during questioning. And Chief Justice Warren wanted to make that clear in this Miranda opinion. But I think again, statistics show that once people start talking, they are almost never gonna invoke them in order to end the questioning early.
Stephanie Francis Ward: Why do you think that happens? Do they just get caught up in the moment or what do you think?
Russell Covey: I think that it’s probably a combination of getting caught up in the moment and digging yourself into a hole that’s hard to get out of, and also not really fully comprehending what Miranda stands for, and what rights they actually can exercise in the interrogation room.
Stephanie Francis Ward: OK. It seems that in pop culture, particularly in film, oftentimes the reading of someone’s Miranda rights is used as part of the storytelling. Can you talk a bit about how Miranda warnings have shown up in pop culture, and how writers tend to use it to move the story along?
Russell Covey: Yeah. It’s a really interesting topic. The Miranda warnings were first formulated in 1966, and the television program Dragnet was the first to incorporate the Miranda warnings into their regular program. And through shows like Dragnet and then Adam 12, the public became quite familiar with Miranda, and knew the warnings.
But TV and film producers tended not to depict Miranda in any of deep or substantive way. They would use Miranda as a symbol of typically now of getting arrested. Right? So if a character in a show is gonna be arrested by the police, you see a couple of things. You see the handcuffs being slapped on, and you hear the arresting police officer begin to intone the Miranda warnings.
So it’s taken on a kind of symbolic function that helps the makers of the television show, or the film, to communicate to the audience that the suspect has been arrested and is now in formal state custody, and is facing the full onslaught of the state’s prosecutorial power. But it doesn’t really signify much more than that, for the most part.
Stephanie Francis Ward: I was, in preparation for this interview, I was looking up clips about Miranda warning, and the most recent one I found was from the 21 Jump Street movie. Have you seen that one?
Russell Covey: Mmm, I haven’t, actually.
Stephanie Francis Ward: I haven’t seen the 21 Jump Street movie either, but I thought it was interesting in how maybe times have changed a bit or where we are in our country, because it was part of a joke, and the sergeant asked his offers to recite the Miranda warning for him, and they couldn’t.
Russell Covey: Yes. I have actually seen that clip. It’s amusing.
Stephanie Francis Ward: OK! Well, do you think that’s kind of telling, or is it just another way to joke around that maybe we wouldn’t have done 50 years ago, because perhaps it would have been seen inappropriate. Or you think that says anything about where we are?
Russell Covey: Well, yes. I think it does. Maybe not in terms of where we are as a legal culture, but where we are as a popular culture. It was, perhaps, interesting and informative for viewers in the 1960s and early 1970s to hear the Miranda warnings being seriously intoned by Joe Friday. But that quickly became boring for viewers.
And so you saw a couple of things that happened in popular shows. You had either the Miranda warnings turning into an obstacle that were preventing the police from catching the bad guys. Movies like Dirty Harry prominently featured that kind of critique.
And then you also saw the Miranda warnings and the Miranda procedure being incorporated into the plot line of television shows like NYPD Blue or Hill Street Blues or Homicide, where oftentimes the drama of the television show revolved around the police interrogation. Right? It was all about the police getting a suspect to confess.
And so getting past the Miranda warnings, tricking the suspect or otherwise convincing the suspect to talk notwithstanding the warnings became part of the drama. So you sort of see that evolution going on, and now we’re sort of passed that as well where what do you do with Miranda? You treat it as a joke, you treat it as an obstacle, or you just ignore it altogether, and I think modern shows tend to do any of those things.
Stephanie Francis Ward: OK. And do you think it seems like there’s fewer young people who watch crime dramas now, and there’s so much attention to YouTube, and choosing what they want to watch. Do you think that—do young people still have somewhat of an understanding about their Miranda rights? Or is it different now in that it’s perhaps talked about less because they choose what they want to see?
Russell Covey: So I agree that because of the rise of the internet and YouTube and alternative ways for people to get their entertainment, it would not be surprising if kids and people in general watched fewer television shows, and fewer police dramas. I don’t think that that means that kids are not generally exposed to the idea of Miranda. I mean, I think you’d have to, still—even in 2016—to bury your head in the sand. To not be aware of Miranda in general.
However, I don’t think that that means that people are aware that there is such a thing as Miranda rights know or understand what they really mean. And I think this is true for young people, and it’s true for older people as well. I think the level of comprehension of the rights remains quite minimal.
Stephanie Francis Ward: We’re going to take a quick break, and when we come back, we’ll discuss how law enforcement’s delivery of the Miranda warning has changed over the years.
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Stephanie Francis Ward: And we’re back. I’m Stephanie Francis Ward, and today’s episode of the ABA Journal’s Asked and Answered is discussing how the country’s understanding of the Miranda warning has changed, 50 years after the landmark Miranda v. Arizona. Joining me is Russell Covey, a criminal law professor at Georgia State University College of Law. Professor, over the years, has law enforcement’s delivery of Miranda warnings changed, and if so, how?
Russell Covey: Well it’s hard to know the answer to that question definitively because we don’t have record of how police have administered the warnings over time. But I think that we can still make some educated guesses. The statistics show that shortly after Miranda was handed down, that the rate of confessions, and the rate at which police closed cases momentarily dropped.
But then it didn’t take long for that number to substantially recover, which suggests that maybe initially police officers delivered the Miranda warnings without much fanfare, or attempts to create any kind of subterfuges. And that that was causing them problem, so they had to figure out ways in which to compensate for this new obstacle that was put in their path by the Supreme Court.
And statistics seem to show they have done a pretty good job of doing that. And there’s a couple of tricks that I think that the police have learned to use that I think that help them to neutralize the effect of the warnings.
One of those would be to delay giving the warnings until the moment in the interrogation that is optimal for them to secure a Miranda waiver and be able to proceed with the interrogation.
Another strategy that police have been shown to routinely use is to minimize the significance of the Miranda warnings, of that Miranda, right?
So police will say: “Hey, I just have to read you these Miranda warnings. We just have to get past this. It’s part of the booking process. And then we can proceed. You could tell me your story. Right?” So, trying to find ways to downplay the moment so that suspects don’t really pause to consider their true meaning, or to take the warnings into account.
And then finally there’s some research out there that shows that police will actually deliver the warnings in a quicker voice than their otherwise normal speech. So they’ll read them quickly, and this has probably a dual impact, right? So it enhances this minimization by saying, “Here’s a bunch of bureaucratic verbiage. Don’t pay it too much attention.” And it also probably makes it harder for the individual whose hearing the warnings to understand what the police officer is saying.
So using all of these various tactics, police have gotten pretty good at getting suspects to talk to them.
Stephanie Francis Ward: I’m curious with what you just mentioned about the officers speaking quickly. Do you ever hear of cases where the person says, “I’m sorry. I didn’t understand that. Can you tell me again, slower?”
Russell Covey: Sure, suspects will occasionally do that, but that’s not gonna happen very often. I mean, the more typical response to somebody who’s in this situation is to nod, and to say that they understood what the right was, and even to initial a waiver form, while really not understanding the substance of what was said to them at all. So I mean, I think, sort of that’s the bigger problem.
It would be great if suspects and people who were being interviewed by the police stopped them and said, “Wait a second. I didn’t really understand that.” The problem is that people just all too often don’t do that.
Stephanie Francis Ward: And it seems like on the reality TV shows, oftentimes when you have someone in interrogation room, the detective will tell the person, “I wanna help you. You could help me by telling me this.”
How does that—I mean, because it seems like, “Hey! That goes against the Miranda warning.”
But that does seem to be a common thing that offers seem to say, at least on TV. Do you hear that happening much, and how does that figure in with the Miranda warning?
Russell Covey: Well, it happens, and I think it undermines the substance of the Miranda warnings, right? The purpose of the Miranda warnings was, in part, not only to tell the individual that they had the right to be silent, and that they had the right to consult an attorney, so that the attorney could inform them better about their right to silence, but also to communicate to them that anything they say can and will be used against them, that this is a significant moment, right, that has legal consequences, potentially.
And the tactics that police use, “Hey, look, you could help yourself out here. Just tell me what happened. We all understand. It probably wasn’t such a big deal, right?”
All of that is specifically intended to send the opposite message to the person who’s being questioned. I mean, it really sort of creates, I think, a very sort of confusing and ambiguous situation for persons who are in that position.
Stephanie Francis Ward: Well, can you answer generally, how do courts tend to respond to that?
Russell Covey: For the most part, these various tactics have been upheld, almost invariably. The Supreme Court has said it’s not OK to use physical violence or coercion, but if you’re trying to trick someone into speaking, then that’s generally OK. You can lie to a suspect. You can tell them that there’s evidence out there that implicates that suspect that doesn’t exist. And the Supreme Court and other courts have not found, for the most part, any of these tactics to be problematic.
The one thing that you can’t do is you can’t overtly trick somebody into waiving their Miranda rights. And some of these tactics might get a little bit close to that border line, but it’s, again, it’s just very difficult to win a claim that somebody who actually waived their Miranda rights was tricked into doing so, unless there’s a pretty good record showing that that’s what happened.
Stephanie Francis Ward: How often do you hear about arrests where the defendant claims that he or she didn’t get a Miranda warning, and how often are such arguments successful?
Russell Covey: Well, the claim itself is not uncommon, and people are actually, in part because of what they see on television, they mistakenly believe that they moment that they’re arrested they’re entitled to be read their Miranda warnings, which is not correct, right? You’re entitled to receive your Miranda warnings before the police begin to question you while you are in custody. So all those things have to be in place, right?
But there’s two things that happen here. I mean first, criminal defendants will raise the claim, “I wasn’t Mirandized.”
But that kind of claim only really, for the most part, is gonna be plausible when the individual was questioned in circumstances that are sort of outside the norm—that is, not in the police interview room, because police, I think, have learned that they need to be very careful to document the provision of the Miranda warnings, and they do a good job of that, right? So they’re either taping or recording in some way, or they’ve got a written form that’s gonna indicate that the Miranda warnings were read and understood.
But outside of that context, if either you’re talking about at the crime scene or in the squad car on the way to police headquarters, or being moved from jail to some other location, right, that’s when Miranda claims most plausibly or credibly get raised. But, the state has a response in these cases, too. An individual, in order to be entitled to not be questioned, has to show that they were actually in custody, that they were actually interrogated, and that they didn’t just volunteer the information.
And so the state will oftentimes respond by saying, “When this admission happened, suspect wasn’t yet in custody.” So therefore it’s admissible. Or the suspect wasn’t asked questions, right, and just volunteered the information. Again, the state tends to prevail, most of the time, when there’s a Miranda challenge that’s brought in the course of litigation.
Stephanie Francis Ward: What can lawyers do to help individuals have a better understanding of their Miranda rights?
Russell Covey: Well, by the time the case gets to a lawyer, for the most part, the client has already been interviewed by the police, right? Or at least there’s a good chance that that’s already happened. So in some ways, it’s almost too late for a lawyer in the case that’s before him or her to do much to help in that case.
So I think lawyers need to take a more aggressive and long-term strategy in terms of educating both their clients about how to deal with the police in the future, and with educating young people about what Miranda stands for, what rights people have, so that people, when they are first confronted with police questioning, understand that they do have the right to be silent and the right to have counsel.
There’s one other thing that I think that lawyers would be well advised to do, and it’s not directly Miranda-related, but it’s sort of tangential. Somebody who is suspected of a crime, especially a serious crime, might confess, not only to a police officer who’s questioning them, but also to other people, such a fellow inmate. I think that there’s nothing that a lawyer could do that would be more useful in terms of protecting their clients from giving false confessions than to educate them about the dangers of talking about their cases once they are incarcerated to their fellow inmates.
And, in fact, what I would do, if I had a client who was involved in a serious criminal charge, I would get that client to write out a letter saying, “My lawyer has advised me that I am not to talk about my case to anybody without my lawyer being present, and I will not talk about the details about my case to any of my inmates. Right, so if they claim that I’ve confessed to them, they’re lying.”
Stephanie Francis Ward: Interesting. Well, thank you so much for your time today, Professor. I appreciate it.
Russell Covey: My pleasure.
Stephanie Francis Ward: I’m Stephanie Francis Ward. Thank you for listening to the ABA Journal’s Asked and Answered.
End of transcript
Updated on May 27 to add transcript.