Constitutional right flies out the door
by Marti Hiken
<IT HAPPENED EARLY THIS YEAR>
The words we hear in so many movies and television shows when someone is arrested, “Read him his Miranda rights,” no longer have meaning. These rights are dead because the courts have “interpret ed” them out of existence. Throughout our country, if you don’t say the right words during police interrogations, your rights to remain silent and to a lawyer don’t kick in. This leads to unfettered police power when any arrestee tries to protect herself in a powerless situation when confronted by the police. And in a courtroom, all your statements are admissible against you.
This is about the only phrase left to ensure that you retain your rights: “I want to remain silent. I want a lawyer.” Again, another way: “I don’t want to speak to you anymore without my lawyer being present.” It is important not to answer further questions after asserting these rights; instead, merely repeat the statement.
The reason for the Miranda warnings in the first place was that the torture and cruelty inflicted on prisoners in this country decades ago and especialy in the South, brought a public outcry. It resulted in the Miranda v. Arizona, (384 U.S. 436) decision in 1966.
In that decision, the Court attempted to strike the appropriate balance between law enforcement interests in obtaining a confession and a suspect’s Fifth Amendment right not to incriminate him- self. “….[T]he decision mandated that the suspect be informed prior to any custodial interrogation that he has the right to remain silent and the right to an attorney and that no inter- rogation can occur until the suspect waives these rights. Moreover, the sus- pect can assert these rights any point during the inter- rogation and, if he does, questioning must imme- diately cease.” (Strauss, Marcy, “The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Mi- randa,” “William and Mary Bill of Rights Journal,” March 2009. In her article Strauss lists the status of the courts’ interpretations of Miranda warnings state- by-state.)
Custodial police in- terrogations can go on for hours on end and the Miranda Court “recog- nized that they were so inherently coercive as to create a presumption that a resulting confession was involuntary unless the suspect was explicitly told prior to questioning that he need not answer questions and that he had the right to consult with an attorney for advice.” (Ainsworth, Janet, “‘You have the right to remain silent…’ but only if you ask for it just so: the role of linguistic ideology in American police interro- gation law.” The Interna- tional Journal of Speech, Language and the Law, Vol. 15.1, 2008, p. 3)
The problem is that “ambiguous” statements aren’t enough, and in actuality, everything you say will be interpreted by the courts to be ambiguous other than the sentences: “I want to remain silent. I want a lawyer.” Invoking the Miranda rights means clear, unequivocal and unambiguous declarations in the interrogation room. Of course, in jail there is a power disadvantage in that the tempo, timing, and level of brutality are set by the police.
So, no hedged or indi- rect language invokes the rights.
- No theoretical comments about the availability of counsel, such as “Could I get a lawyer?” or “May I call a lawyer?”
- No language that softens the demand for a lawyer:
- “It seems like I need a lawyer.”
- No logistic questions:“Could you get me my wallet and bring my lawyer’s business card to me?”
- No imploring ambiguous language:“I don’t want to talk about it.” or “I won’t talk anymore.”
- No being and remaining silent (you must be defi nite and utter words)
- No combining demands:“Screw you, talk to my lawyer.” or “I don’t feel like I can talk with you without any attorney sitting right here to give me some legal advice.”bleaker, however, in the case Davis v. United States (1994) U.S. 452:
– “Give me a lawyer” or “I want a lawyer” are not deemed by the police or courts as kicking in your constitutional rights. (Note that wanting and requesting a lawyer is not the same thing as your right to remain silent by taking the Fifth.)
– Refusing to sign a form indicating a waiver of your rights when coupled with incriminating statements to the police does not invoke your rights. (The incriminating statements obtained by the police are proof that your rights were waived.) To state simply: Make an incriminating statement and your rights are waived.
Underlying all of this is that judges now have no compunction regarding the role of unlimited and brutal interrogation, torture, and intimidation by the police. They also ignore the context that language plays when someone communicates in an abusive situation. Finally, the social context of the arrestee and his intentions become blurred by language. Losing our Miranda rights is simply another step in the wrong direction.
Marti Hiken is the exec- utive director of Progressive Avenues. She can be reached at mlhiken@comcast.net
