Miranda: when familiarity does not equal understanding

One could argue that popular shows such as Cops, The Closer and the various permutations of Law & Order have increased the public’s familiarity with Miranda rights and police practices. Anyone who has watched just a few of those shows probably recognizes this scene: a police officer handcuffs a suspect while intoning, “You have the right to remain silent. Anything you say can and will be held against you…”

A recent study by Rogers and colleagues examined how well pretrial defendants and college students actually understand Miranda rights and police practices. The results indicate pretrial defendants and college students have many misconceptions—even when they feel their knowledge is excellent or average. As it relates to defendants and due process, these misconceptions should be concerning to lawyers and the judiciary.

Before sharing the results of the study, it is important to briefly describe the sample and methods. Both the college and pretrial detainee samples were predominately European American. Detainees reported an average of ten prior arrests. Knowledge and misconceptions were measured with a Miranda Quiz developed by the authors. Subjects were asked to rate their own knowledge of the Miranda warnings. In making this self-appraisal, they could indicate that their knowledge was poor, average or exceptional.

Summary of Results

Police Practices: Defendants displayed misconceptions about police practices during an interrogation. Nearly a third indicated that if the police lied to them, they could retract their statement without it “hurting” their legal case. Sixty-four percent of pretrial defendants and only forty-seven percent of college students indicated that it was illegal for the police to “pretend” that an eyewitness identified them as the criminal.[1]

Miranda: Nearly 70% of the pretrial defendants felt that their knowledge of Miranda was “average” or “excellent.” Despite this, at least as many had misconceptions about Miranda rights and police practices. More defendants (79.7%) than college students (68.1%) incorrectly indicated Miranda applies when detained by authorities who were not police. Sixty-two percent of the defendants responded incorrectly to the item: “Miranda rights don’t apply if you are not in custody.” Thirty-nine percent of the pretrial defendants did not understand that, in presenting Miranda, if the police tell you that you can “withdraw your waiver,” it means that you can reassert your rights.

Right to Silence: Pretrial defendants displayed significant misconceptions about the right to silence and statements made to the police. Thirty-seven percent inaccurately indicated that, once waived, the right to silence could not be reasserted. Nearly one third indicated that if you remain silent, your silence will be used against you in court as evidence. Fifty-two percent of pretrial defendants thought that it was illegal to use “off the record” statements made to police during an interrogation against them. One quarter of the defendants felt that if you did not sign the Miranda waiver, the police could not use what you say against you. A substantial minority (12.8%) of the defendants incorrectly indicated that they could retract a lie to the police without it hurting their case. A small percent (9.4%) thought that the longer you remained silent the more charges will be filed against you. Although 9.4% may seem like a small portion, this is statistically significant compared to the percent of college students (2.5%) who shared that belief.

Right to Counsel: A substantial number of both college students and pretrial defendants displayed misconceptions regarding the right to counsel and how to assert that right. Twelve percent of defendants and twenty-six percent of college students did not understand that once you asked for a lawyer, questioning should cease. Thirty percent of defendants and 41.5% percent of college students indicated that, if you ask for a lawyer, the police can continue questioning you until the lawyer arrives. Eighteen percent of the pretrial defendants did not understand that you could talk to your attorney privately before the interrogation. Sixty-nine percent of defendants indicated that saying “I want a lawyer” means the same as “I might want a lawyer.” From a statistical perspective, significantly more defendants failed to understand that these statements were different as it applies to the right to counsel than did college students. Pretrial defendants also displayed misconceptions regarding the right to free counsel. Nearly twenty percent of them agreed, “If the court appoints you a lawyer, your family will end up paying the costs.”

Rogers et al. demonstrated that pretrial defendants have significant misconceptions about police practices and their Miranda rights. This could have grave constitutional consequences. The results of the current study suggest that attorneys should not rely solely on a client’s self-appraisal of his or her understanding of Miranda to determine if the client might have a due process issue. Instead, attorneys might want to engage in a detailed inquiry with their client to determine if relevant misconceptions of Miranda might prevent him or her from providing an intelligent waiver.

[1]Only statistically significant comparisons between college students and defendants are included in this review.

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