You have the right to remain silent; anything you say can and will be used against you in court; you have the right to an attorney; if you can’t afford an attorney, one will be appointed to represent you, free of charge.
That may sound familiar, but it may surprise some to know that there’s actually no such thing as “the” Miranda warning. There’s no rule for what precise formulation of words must be said—as one judge wrote, no “talismanic incantation” or “heraldic abracadabra.” To adhere to the holding of Miranda v. Arizona the police simply must express the basic gist—though, to be sure, all of it—before any questioning. That gist is: you have the right to remain silent, anything you say can be used against you, and you have the right to an attorney, including a free one.
On May 2nd, 2024, the Florida Supreme Court issued its opinion in State v. Penna, a case asking if Miranda is automatically violated when an officer does not reread a suspect a Miranda warning when the suspect invokes his right to remain silent but then voluntary restarts the conversation with law enforcement. The Florida Supreme Court says “no” (or, more accurately, “No, not anymore, in Florida”).
The facts of Mr. Penna’s case are pretty grim. According to the opinion, after a very bloody crime spree that included two murders, Mr. Penna was shot by police when he refused to drop a knife. At the hospital, he was given a standard Miranda warning and invoked his right to remain silent, but over the next several weeks he reinitiated conversations with the detectives who were guarding him as he lay chained to a hospital bed. The officers did not reread him his Miranda rights, and eventually he incriminated himself.
Under federal precedent, there is a two-part test for determining whether such post-invocation statements are admissible or suppressible: to be admissible, first, the defendant must be the one to reinitiate the conversation, and, second, there must be a valid waiver of the Miranda rights.
Federal precedent sets the minimum requirements for criminal rights. In many states, however, including Florida, the state’s own rules are more protective of a criminal suspect’s rights than under federal law. The previous rule in Florida was one such example.
Consistent with Florida’s greater protections, it had been the rule there—until Penna—that if an accused invoked Miranda, and later reinitiated the conversation, the police were required to remind the suspect of their Miranda rights. Not so anymore. Under the new rule in Florida, the remind-or-readvise requirement is gone. The Florida Supreme Court has declared its prior decision (from only 6 years ago) was “clearly erroneous” and so walked back the extra protection Florida used to give to suspects. Florida’s new rule now matches the two-prong federal rule above.
This abrupt reversal got me to thinking: what other Miranda nuances are there? What other quirks—progeny from the Miranda decision—should everyday folks (and criminal defense lawyers) be aware of?
There’s no shortage of case law and commentary about why, when, and how law enforcement must advise suspects of their right to remain silent—every fact pattern presents a different rule. For instance, in Moran v. Burbine the U.S. Supreme Court held that police don’t have to tell a suspect his family has secured a lawyer for him, even when the lawyer is trying to reach him. In Pennsylvania v. Muniz, the Court created a “booking exception,” for questions designed to secure biographical data without a Miranda warning. New York v. Quarles created a “public safety exception” to Miranda, in which the “kaleidoscopic situation” at a crime scene may necessitate spontaneous questioning without a pause to protect a suspect’s constitutional rights.
Given the importance of Miranda and the widespread, well-documented problem of false confessions, there is surprisingly little commentary on what additional rights criminal suspects should know beyond the typical, as-seen-on-TV Miranda speech.
Granted, changing the Miranda warning to include additional advice would be a watershed moment in American law. This is because the Miranda speech is so ingrained in popular culture that adding even one more phrase would make the warning sound like a skipping record; any departure from the norm would draw immediate, focused attention to the new words.
This would be a good thing. Changing the language would make suspects focus on it more. It would reduce false confessions from suspects who thought it would “look bad” or “make things worse” if they invoked their silence.
For instance, the general public may not know that the guarantee of a lawyer is not conditioned on some future event. That is, suspects have a right to an attorney quickly, whether they cooperate with the police or not. If suspects knew a lawyer was available more quickly, they’d be less likely to speak to the police for fear of any delay jeopardizing their case. Police aren’t allowed to water down Miranda by suggesting that obtaining a lawyer is inconvenient or will take too long, or promise suspects a lawyer if they say something about the investigation first. A new phrase in the Miranda warning could stress the immediacy with which an attorney must be provided.
Another important warning that’s missing from the Miranda speech, and which is widely unknown, is that typically the right to silence also means that someone’s silence can’t be used against them as evidence of guilt.
Imagine this situation: A prosecutor stands before a jury giving a closing argument. She’s describing how the police arrested the suspect and brought him to the police station, then she says, “And you know what the defendant did when the police asked him about the case? He refused to answer their questions!”
Of course that should generate an immediate and intense objection from the defense. It’s an egregious comment on silence. The obvious implication is that the defendant could have helped the police but chose to remain silent because he knew he was guilty. The law is, the fact that a suspect remained silent cannot be used as evidence of guilt.
Here’s another rule derived from Miranda but unknown to many people: when police question a suspect, the police can lie to that suspect about the existence of evidence against them. Some states prohibit this practice when the suspect is a juvenile, and several other states are considering legislation to ban it outright. But it persists. Under Frazier v. Cupp, police can falsely tell a suspect that someone else has already said the suspect committed the crime.
One more: In most states a suspect can’t be held for more than a day or two before they’re brought in front of a judge for a bond hearing. Florida, for example, requires that arrestees be brought before a judge within 24 hours so the judge can determine if there’s probable cause to hold them, and the judge will set bail at that hearing. Suspects have a right to a probable cause hearing whether or not they speak to the police and the fact that a suspect remained silent in the face of questioning from the police plays no part in the judge’s analysis of whether or not to release the person (unless, of course, they say something incriminating which contributes to the reasons to keep them in jail). Put another way, “silence” is not probable cause.
Adding mention of more rights and caveats to the Miranda speech—and the above are just a sampling of what could be said—shows how complicated and prolonged the warning could become:
You have the right to remain silent, and if you remain silent, the fact that you remained silent cannot be used as evidence of guilt. If you agree to be questioned, you should know that we’re not required to tell you the truth about our investigation. You have the right to have an attorney, and we’ll do our level-best to get them to you quickly. Also, we’re not allowed to hold you at the station for more than X hours before we have to ask a judge if we can keep you here longer. If you choose to remain silent, but later reinitiate a conversation with us, we’re not required to remind you of any of this, even in Florida.
It may be that there’s no practical way to advise a suspect of all of their rights and all consequences of abandoning those rights before questioning. The Florida Supreme Court’s decision in Penna emphasizes that the most important lesson from Miranda, nearly sixty years later, remains the simplest: suspects should not talk to the police without speaking to a qualified criminal defense attorney first.
July 22, 2024
