"They Didn't Read Me My Rights!"

“… And not only that, the police didn’t read me my rights!”

My goodness, how may times have I heard that from clients charged with some criminal matter?

When I first heard it, I must confess I took it seriously. Fortunately, that phase didn’t last long. Although it’s always a relatively minor issue to address, the notion quickly passed into the realm of mere noise. After a few years, we reached the “joke” status. And today? What I think when I hear it is, “For heaven’s sake, quit whining.”

Here is a surprise. It means very little to a case if the police do not read the defendant his or her rights.

Somehow, folks have come to believe falsely if the police don’t do the read-‘em-their-rites ceremony, Jesus will wither them like the fig tree. Mohammed will smite them, and Vishnu ... ? Well, Vishnu will do that thing he does, and let me tell you, it’s not pleasant.

Oh, and they just know that the whole case has to be dismissed because their rights were violated.

It just isn’t so.

Ever since Joe Friday arrested someone weekly on Dragnet, we frequently have heard the mantra:

“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 the presence of an attorney. If you desire an attorney and cannot afford one, one will be appointed for you without cost. Amen.”

This advice is consistent with the decision of the United States Supreme Court in the case Miranda vs. Arizona. At the time of the Miranda decision, public reaction was decidedly negative. It was seen as an intrusion on the work of the police and an exaltation of the rights of criminals over the truth.

Nevertheless, 45 years later, the Miranda warnings are a constant of police procedure. Prior to making statements which are admitted in court, citizens now have the opportunity to know that they have a right under the United States Constitution to keep quiet.

Very few of them make use of that right, because most persons arrested cannot resist the temptation to babble incessantly. But they have the right, and if they don’t use it, usually they have only themselves to blame.

But – the Miranda case does not say that the police have to read defendants their rights. Nowhere does it suggest that if the police don’t read a defendant his rights, the defendant gets a get-out-of-jail-free card.

What the Miranda decision says is that before a statement made made by a defendant during interrogation while he is in custody can be trotted out in court, the state or government has to show that the defendant had his or her rights explained to them. That’s all.

(I’m sticking with the masculine gender with my pronouns because, for the present, that gender dominates the criminal dockets.)

Fairly rarely, the Miranda rule results in a statement or even a confession excluded from the evidence. Far more common, however, is the exclusion of statements made when a defendant is so whacked out of his mind on drugs or alcohol that he’s making no sense or where there is some circumstance present which makes the voluntariness of the statement suspect.

If the voluntariness of a statement is suspect, that is not a “technicality.” That strikes directly at the trustworthiness of the statement.

Even when a statement excluded because of a Miranda violation is excluded, there are still limitations that can get it into the back door in Court. If the defendant confesses and that’s excluded because the defendant was not “Mirandized,” and the defendant then testifies and denies the crime, the statement comes in as impeachment. If the defendant makes a statement about his actions and the actions of someone else, there are circumstances where the statement about the other person will be heard by a jury.

So to my criminal clients: Please quit telling me that defending you will be easy because the police didn’t read you your rights. You are boring me silly.