Most of us, even us “woke” folks have been well schooled on what we think are our rights when it comes to encounters with police officers. As kids, we all grew up on a heavy dose of cop dramas and movies that have informed our beliefs about the way police interact with the public, and often this has shaped the way we engage with law enforcement in real life either consciously or unconsciously.
There are a great many problems with this. While we know that Hollywood and other forms of mass media, are fake and scripted for dramatic effect, it is easy to forget, as the lines between reality and suspension of disbelief have been blurred over years and years of reinforcement by cinematic motifs geared at our sustaining our entertainment.
Take for instance, Law & Order, or better yet, Tyler Perry’s popular film, “Madea Goes To Jail.” When Madea goes before the judge after an encounter with police officers. The judge laments the fact that officers failed to mirandize her, or read her rights before taking her into custody. “You forgot to mirandize her?….I’ve got to let you go…As much as I hate it, I have to…”
Like many popular dramatizations of police encounters, this scene hinges on the assumption that if police officers don’t read you your Miranda Rights, it’s a get out of jail free card. While this is a idea that is frequently perpetuated by movies and TV shows, it is wildly inaccurate, and has resulted in a general misunderstanding of the way Miranda law functions in reality.
The concept of the “Miranda warning” was established following the 1966 Miranda v. Arizona Supreme Court decision, when the courts found that:
“…The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.”
Since then though, There have been many rulings by the Supreme Court that have eroded the expectations of officers to Mirandize suspects.
Berghuis v. Thompkins 560 U.S. 370 (2010)- the U.S. Supreme Court rolled back protections afforded by the Miranda doctrine, ruling suspects must “expressly invoke the right to remain silent;” simply remaining silent is no longer sufficient to invoke that right. The practical effect of the ruling is that, unless a suspect specifically states that he or she wishes to remain silent, the right will be deemed to have been waived.
Kansas v. Ventris, U.S. Sup. Ct. 2009- If a defendant gives testimony at trial that conflicts with a statement made to the police, the prosecutor can offer a statement elicited in violation of Miranda to impeach (attack) the defendant’s credibility.
U.S. v. Patane, U.S. Sup. Ct. 2004- any tangible evidence (such as a threatening note or the loot from a robbery) that the police learn about through questioning that violates Miranda can generally be used against a suspect in court.
N.Y. v. Quarles, U.S. Sup. Ct. 1984- In dangerous situations, the “public safety” exception allows police officers to question suspects about weapons without giving a Miranda warning. If the interrogation leads the police to a weapon, it can be used against the suspect at trial.
Michigan v. Tucker, U.S. Sup. Ct. 1974- If a statement taken in violation of Miranda leads the police to another witness, that witness can testify against a suspect at trial.
So, what should you do when being questioned by police? Well, it’s important to realize that ANYTHING you say to officers will be used AGAINST you, never to help you or exonerate you. The best thing you can say to police is nothing at all. However, as we have seen in Berghuis v. Thompkins, just being silent isn’t enough to protect your rights. When being questioned by police, you should clearly state, “Officer, I am going to exercise my right to remain silent”. Then DO IT! SHUT THE FRONT DOOR- Close your damn mouth! Take it from me, this is the hardest part. Often, police will continue to question you, and may say things to get under your skin to get you talking again. Should this happen, you must reiterate your rights. Say something like, “<blah, blah, blah>….Now, I’m going to continue to exercise my right to remain silent.”
Most importantly, remember that TV shows and movies are meant to entertain, not educate. Never rely on entertainment media for information about your constitutional rights. Look it up or consult with a lawyer, but always KNOW YOUR RIGHTS!
Paul Garner is the Organizing Coordinator for Memphis United at the Mid-South Peace & Justice Center.
**DISCLAIMER: I am not an attorney, therefore the information presented here should not be considered legal advice. For legal advice, consult with a lawyer**