Storytellersunplugged

If there ever was someone who seemed destined to lead a life of crime, it was Ernesto Arturo. He was born in Arizona in 1941. By the time he was in the eighth grade, he had already been convicted of a crime. The following year, he served a year in reform school for burglary and, a month later, was sent right back. He moved to Los Angeles and was soon arrested on suspicion of armed robbery and minor sex offenses. He was acquitted of the robbery charge but was subsequently deported back to Arizona.

Ernesto joined the Army and was charged numerous times with being AWOL and for spying on other persons engaged in sexual activities. He spent six months doing hard labor in a military stockade. He was ordered to consult a psychiatrist but attended only one session. Not surprisingly, he was given a dishonorable discharge. While drifting from state to state, he was jailed in Texas for living on the street, having no money and having no place to live. In Nashville, he was arrested for driving a stolen car. Since he drove it across state borders, he received a sentence of a year and a day in the Federal Prison System.

While living with a married woman and her two children, Ernesto managed to find a few jobs and avoided arrest for several years. According to Phoenix police, however, he spent a portion of this time abducting, kidnapping, raping and robbing young women. Unfortunately for Ernesto, he chose his victims from a relatively small area. One of the rape victims had described to her brother the vehicle in which she had been transported. The brother later spotted the vehicle and gave the police a description and partial license plate number.

The police arrested Ernesto and placed him in a lineup. After the lineup, Ernesto asked about the results; and the police implied that he had been positively identified. After two hours of interrogation, before which he had not been advised of his rights, Ernesto confessed. In fact, when Ernesto was taken to meet the victim for a voice recognition test, HE identified HER as having been his victim. His victim also identified his voice as being that of her abductor. Ernesto then wrote his confession. The following had been printed at the top of every page: “…this statement has been made voluntarily and of my own free will, with no threats, coercion or promises of immunity and with full knowledge of my legal rights, understanding any statement I make can and will be used against me.”

An attorney was assigned to represent Ernesto at trial, which took place in June of 1963. The attorney objected to having the confession – which was the only evidence offered by the prosecutor at the trial – admitted; but his objection was overruled. The court found Ernesto guilty of rape and kidnaping, and he was sentenced to 20 to 30 years on both charges. The attorney appealed to the Arizona State Supreme Court, but the verdict stood.

The attorney that had represented Ernesto was elderly and in poor health, and the ACLU requested three Phoenix attorneys to represent Ernesto. The U.S. Supreme Court heard Ernesto’s case with those of three other similar cases that were combined to clear misunderstandings stemming from a previously decided case.

Following oral arguments involving Fifth and Sixth Amendment rights (a right not to incriminate one’s self and a right to counsel, respectively), the Court rendered its opinion in favor of Ernesto. It resulted in police departments using a warning named after the appellant. His full name, in case you haven’t guessed yet, was, of course, Ernesto Arturo Miranda.

The decision included the following statement, which has been adapted to the form used by most police and is typically heard on TV police dramas. The decision stated that:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court: he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation and that, if he is indigent, a lawyer will be appointed to represent him.

Ernesto was retried without benefit of his original confession, was convicted of rape and kidnaping by virtue of other evidence, and was sentenced to 11 years. After finally being paroled, he made some money selling, of all things, autographed Miranda warning cards. He was arrested a number of times for minor driving offenses and was charged with being in possession of a firearm. The charge was dropped, but the arrest violated his parole; and he spent yet another year in prison. After his release, he was eventually stabbed to death following a bar fight. A suspect was soon apprehended. When the police read him his Miranda rights, he took advantage of them and refused to cooperate. Due to a lack of sufficient evidence, and thanks to his alleged victim, the suspect walked.

The foregoing account illustrates some of the history behind the Miranda warning and some of its commonly misunderstood consequences. The following includes additional information related to the Miranda warning.

Police can ask persons questions such as their names and addresses and social security numbers to identify them without arresting or Mirandizing them, and police need not Mirandize anyone to arrest them. Arresting someone requires the police to have probable cause to believe they have committed a crime; but, only after persons have been taken into custody and before they are interrogated must they be given a Miranda warning. Whenever a person is placed in an environment, no matter where it is, in which they believe they are not free to leave, they are considered to be in custody. If a confession is made during a custodial interrogation before which a suspect has not been Mirandized, the confession may be disallowed during a trial; but the arrest may still be legal. If incriminating information such as a confession is given spontaneously by a suspect in custody, even if a suspect has not been Mirandized or has requested a lawyer who has not yet arrived, it is admissible as evidence provided it was not given in response to questioning or other police conduct likely to induce an incriminating response .

A dilemma probably encountered more often on TV than in real life might occur if a suspect has information, for example, about the location of a bomb or an abductee. In such a situation, a “public safety exception” would apply; and responses by a non-Mirandized suspect would be admissible as evidence even if the information incriminated the suspect.

If a suspect does not initially request a lawyer but changes his or her mind during interrogation, the questioning is discontinued until a lawyer arrives. Whatever the suspect said prior to asking for a lawyer, however, would still be admissible evidence.

A defendant whose confession has been ruled a violation of Miranda standards should understand that, if he or she chooses to take the stand, the confession may still be introduced as a prior inconsistent statement to cast doubts on his or her credibility.

A suspect who relies on sign language must be provided with a qualified sign interpreter. It should be noted, however, that the abilities of qualified sign interpreters to explain accurately and completely Miranda warnings to deaf persons has often been called into question.

A suspect who is not a U.S. citizen is allowed to contact his or her country’s consulate prior to any interrogation.

Courts have ruled that any waiver of Miranda rights must be knowing, intelligent and voluntary. Those words have been interpreted to mean that a suspect reasonably appears to know what he or she is doing. Indeed, a Colorado court ruled that it was completely irrelevant whether or not the suspect may have been insane at the time. Also, since being in custody can itself be coercive, the issue of whether or not waiving Miranda rights can always be a matter of free will has been raised. A suspect can be held for some time, alone in a small, soundproof room where everything he or she might want - a cigarette, a drink of water or a bathroom break - is under control of an interrogator.

The Miranda ruling naturally raised a fear in those who opposed it that it would cause an increase in crime and in the number of criminals going free. Gradually, however, many interrogators learned to honor the letter of the law but not its spirit as they figured ways to get around Miranda. It took the Supreme Court to stop Missouri police from withholding Miranda warnings until after suspects had confessed. The police would then Mirandize the suspects and have them sign waivers and confess again.

Many of the techniques were not as blatant and were not considered coercive, according to judicial interpretation; and the confessions they produced were almost always admitted as evidence. Subtle techniques included reading the Miranda warning in a manner that suggested it was simply a perfunctory ritual and not important enough to warrant serious consideration. In reality, it is so important that, reportedly, “if a confession gets before a jury, a defendant’s prospects of acquittal are virtually nil.”

An interesting facet of interrogation is known as the Stockholm syndrome. Persons, such as hostages under total control, begin to identify and empathize with their captors. In isolated captivity, this can occur after as few as ten minutes. An interrogator can sometimes build trust by pretending to care about a prisoner and becomes the prisoner’s only source of social reinforcement.

Reportedly, many police departments train interrogators in procedures that influence suspects to waive their Miranda rights. Some interrogators try to get suspects to speak before being Miranized without actually asking them to do so. An interrogator might recite in some detail all the evidence against the suspect and then encourage him or her to discuss it. Suspects will often then try to refute the evidence. An interrogator might sit silently with a suspect and simply do paperwork. Silence often induces suspects to speak. Although such tactics are obviously designed to get around the rules, they have been held to be valid by courts. Civil rights groups, of course, consider them to be deceptive

This brings up the subject of the legality of using deception during interrogation. Suspects can be told their DNA or fingerprints were found at the scene of a crime, that someone witnessed their illegal activities, that another gang member already confessed, that they failed a lie detector test* or that a person they shot dead was only grazed and was returned to perfect health by application of a simple bandage. There is no law against using such deceptive measures. Promises of leniency by the police in exchange for confessions are quite common, but such promises are not binding on the police or district attornies. Unless they have a strong case, district attorneys are usually more likely to plea bargain for a reduced sentence if there is no confession.

Unfortunately for society, such deception by some police erodes our law enforcement system. When juries cannot trust police, more guilty persons will be free to damage the fiber of our society. Statistics tell us there are some 6,000 false convictions for felonies in the United States per year, and false confessions are a major reason for persons being convicted of crimes they did not commit.

Many who opposed Miranda warnings now favor them. Thinking that Miranda prevents involuntary or coerced confessions can discourage jury members and even judges from considering the fact that confessions might be the result of sophisticated deception and psychological coercion.

Extra facts:

* Innocent persons who are nervous are more likely to fail polygraph tests than are self-confident, guilty psychopaths; so such test results are not always considered by courts to be meaningful.

Every interrogation scene I have seen on TV shows an interrogator sitting across a table from a suspect. Reportedly, they sit beside or at an angle to him or her. Moving into the suspect’s space increases anxiety, and moving away when information is forthcoming is rewarding. Of course, when left alone, the suspect is observed through a one-way mirror, or other device, to help gauge his or her level of anxiety.

In Australia, an act of inventing a false verbal confession by a police officer is referred to as “verballing.” Police testimony about unrecorded confessions is now admitted in trials only under exceptional circumstances.