The Counsellor's Corner

In l966 the United States Supreme Court made a landmark decision in the case of Miranda v. Arizona. That case lead to what is a now part of every arrest scene on every television show in existence. After the subject is arrested the officer immediately tells him "you have the right to remain silent. If you give up 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 speak with an attorney and to have the attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning." This holding by the United States Supreme Court that a person should not be placed in a position where he might make statements that could come back to haunt him without first talking to counsel or deciding that he didn't want to talk to counsel was one of the most significant decisions in the history of this country.

Unfortunately, police behavior and court decisions since then have chipped away at this right so that it is now a mere shell of the protective umbrella it became in l966.

Police officers have found a convenient way to circumvent this decision. The California Highway Patrol Manual recommends that police officers ask the people they detain a number of questions before they make an arrest. These are then deemed to be pre-arrest questions which don't require Miranda warnings. The officer then gets his pre-arrest questions answered, makes an arrest and then has no need to give the individual his Miranda rights as there are often no other questions to ask. This strategy is not employed by all CHP officers or all other police agencies however in my experience as a criminal defense lawyer, approximately 80 to 90 percent of the officers I deal with in these cases have asked pre-arrest, investigatory questions so that they don't have to Mirandize the individual after the arrest and try to pry answers out of individuals at that time.

Many people who come to court to serve as jurors and many who walk into my office as the accused are surprised to learn that there is no law requiring an individual to be Mirandized by a police officer upon arrest. One of the first statements made to me by most who walk through my door is "they [the police officers] didn't read me my rights." At that time I let the individual know that the reading of the rights is only required in situations in which the police officer wants to do extensive post-arrest questioning.

This brings me to a very troubling case decided last week by the California State Supreme Court, holding that "a defendant may still be impeached with incriminating statements made to police even if officers deliberately ignored his Miranda rights and continued questioning him after he invoked his right to counsel." What this means is that if you are arrested and you are informed of your Miranda rights and you then tell the police officer you wish to remain silent until your lawyer appears or an attorney is appointed to represent you, the officer can continue to question you and use your answers against you if you take the witness stand in your own defense. The State Supreme Court held that the prosecution cannot introduce statements made to police officers in the prosecution's case in chief when Miranda has not been complied with; however, if the person charged with the crime decides to take the witness stand in his defense and he says something different from that which he said to a police officer during questioning, even if the officer deliberately ignored his request for counsel, these statements can be used against the individual to impeach his testimony.

So the question now becomes, what is the motivation for police officers to comply with Miranda? There is none. An officer now knows he can wilfully ignore the requirements of Miranda and he has nothing to lose. The court in effect rewards officers who trample the rights of the individual and engage in this type of behavior.

The purpose of the original Miranda decision was to force the State of California and all other states to not have someone convicted by their own words unless they were informed of their rights and subsequently waved their rights. This recent decision and others like it over the last decade have had the effect of crippling what was a wonderful ruling some 32 years ago. This is not just a set back for criminal defendants; this is a set back for the legal process.

It is extremely unfortunate for society that an important right created for the protection of all people who are arrested has been in large part emasculated.

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Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger. Mr. Unger has obtained his doctorate in psychology and writes a bi-monthly column on legal and psychological issues.