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Miranda Warning Under Scrutiny

The Miranda warning – popularized over the years on television programs as the “right to remain silent” when arrested – is under scrutiny by lawyers and social scientists. In an article entitled “Miranda Rights . . . and Wrongs: Myths, Methods, and Model Solutions,” Criminal Justice, Vol. 23, Number 2 (ABA: Summer 2008), Richard Rogers, Daniel W. Shuman, and Eric Y. Drogin identify seven of the “most pervasive” Miranda myths, including:

Myth #1: Everyone Already Knows the Miranda Warnings. In fact, the authors report, 28% of college undergraduates in one study were not aware of the right to silence, and believed that failure to cooperate when placed under arrest may be used as incriminating evidence; 34% believed the police can continue an interrogation after an attorney has been requested; and 24% believed that a Miranda waiver had to be signed in order to be valid. The authors wonder how a “garden-variety detainee” could understand the warning, if college students fare so poorly.

Myth #2: Miranda Warnings Are the Same Wherever You Go. In fact, analysis of 945 federal, state, and county jurisdictions revealed 886 “unique” variations of the warning, ranging from 21 to 408 words in length, and even found four variations of the warning in one county in Pennsylvania – one each used by the local police, the sheriff, the university, and the railroad. Only 80% of the warnings studied advised of the continuing right to silence and counsel, despite the requirement that the “opportunity to exercise these rights must be afforded . . . throughout the interrogation.” Miranda v. Arizona, 384 U.S. 436, 479 (1966).

Myth #3: “Smart Enough to Do the Crime” Means Smart Enough to Understand Miranda Warnings. In fact, one study compared the lowest and highest functioning defendants and found the lowest comprehended only 24% of the warning, and the highest only 66% of the warning.

Myth #4: Oral and Written Miranda Warnings Have the Same Effect. In fact, one study found that persons who receive an oral warning fail to comprehend at least half of the warning three times more frequently than those who receive a written warning. A survey of 631 police investigators found that 67% of Miranda warnings were given orally, and the rest were given either in writing or by audio recording.

Myth #5: While Miranda Warnings Are Easy to Understand, Juvenile Warnings Are Very Easy to Understand. A study of 122 juvenile Miranda warnings from across the country found the juvenile warnings to be more than 50 words longer than the general warnings intended for all age groups, and reading levels required for comprehension slightly higher than the reading levels for the general warning. Though some states attempt to protect juveniles by, for example, required a parent or guardian to be present during the Miranda advisement and any interrogation, the authors questioned whether the parents could comprehend the warning sufficiently to counsel their children about the consequences of waiving constitutional rights. Further, one study found that 55% of parents wanted their children to confess, 33% of parents wanted them to tell the truth in a manner that might amount to a confession, and no parents advised their children about Miranda rights.

Myth #6: Miranda Warnings Delivered in Spanish Are the Same as Those Delivered in English. Studies have shown various mistranslations of the warning into Spanish, omissions of the right to “free” legal counsel, and failure to advise concerning the continuing right to silence and counsel three times more frequently than in English versions of the warning. One court has thrown out a Spanish translation of the warning because it did not communicate an unambiguous right to counsel, and instead advised that “you have the right to solicit the court for an attorney.” State v. Ortez, 631 S. E. 2d 188 (N. C. App. 2006).

Myth #7: Suspects Understand that Heeding Miranda Warnings Isn’t Harmful. In fact, a study of college students showed that one-third believed their silence could be used as incriminating evidence in a future trial, and preferred to give their own versions of the facts rather than allowing investigators to “assume the worst.” The study also revealed the 24% of the Miranda warnings in the U. S. erroneously advise suspects that they have the right to remain silent only “. . . until counsel is available.”

Social science research into the Miranda warning is in its infancy, but is beginning to make its way into consciousness of courts and lawyers. Challenges to Miranda warnings are likely to increase as deficiencies in warnings across jurisdictions come to light.

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