The Problem with Simplified Miranda Warnings
- By: marty.feinman
- On: 10/09/2016 17:11:00
- In: Chronological
As attorneys we understand the significance of a “right”, especially a right bestowed upon us by the United States Constitution. The 5th and 14th Amendments to the US Constitution assure us that no one can be compelled to bear witness against himself and that before that right can be waived, we must be certain that any waiver is exercised knowingly, intelligently and voluntarily. Over time, we usually come to recognize the meaning, significance and importance of what it means to have rights and especially constitutional rights . It's a lesson we perhaps begin to learn in school, though often not until a high school civics course. And it's a lesson the significance of which becomes more apparent to us as we make our way through life and encounter circumstances and events that help to give meaning and context to their importance. As adults we exercise our rights when we vote, when we choose which god, if any, to worship, when we decide who to associate with and how to define ourselves. And it is as adults that we begin to appreciate what it means to us when we or others we see and read about are deprived of one or more of their rights. But the very nature of childhood and adolescence is such that any concept of what it means to have a right to do or not to do something is at best an abstract concept that thus far has no application to their daily lives. Virtually every choice adolescents and children make is conditioned upon the approval of a parent or other adult in a position of authority; they must go to school and do their homework, they must be home and go to bed when they are told, they can't have dessert until they eat their dinner, they must clean their rooms. The list is endless. And yet we expect these same children and adolescents, thrust into circumstances where they are suspected of wrongdoing and confronted by law enforcement seeking information from them, to apply what minimal understanding, if any, they may have of the meaning and significance of a right and the potential consequences of waiving it, to decide for themselves whether the circumstances warrant doing just that.
Remain silent? Don't have to say anything at all? This isn't even true. At the very least they WILL have to respond at the end of the warnings as to what they choose to do. Silence in the face of the Miranda warnings is not deemed to be the same as exercising one's right to remain silent. It is simply silence. A refusal to waive one's right to remain silent, in order to be definitive, must be asserted by stating it. From the outset, this warning, taken literally - and children and adolescents are notoriously literal - contradicts itself and presents the child or adolescent with a falsehood. Faced with such a contradiction, what reason is there for a child or adolescent to assume that any ensuing assurance or representation is to be credited? This warning has undermined its own integrity.
Anything you say can be used against you! What a frightening and misleading thought. The warning suggests no restrictions whatsoever on the nature and type of information which, if provided by the child or adolescent, can be used against them. What is to keep that child or adolescent from thinking this might include an assertion of the rights the warning is designed to protect? Or a request to speak to an attorney? Or even something as simple as a request to use the toilet?! They don't automatically recognize that in this context, anything only refers to something potentially incriminating about the incident for which they have been taken into custody. Once again the warnings themselves are not true and their legitimacy is compromised.
What does it mean to have something the child or adolescent says be used in some way? How can we be assured that the child or adolescent is sophisticated enough to appreciate how the ensuing use of the word court actually qualifies what is meant by used? They have no information or experience to inform them. This presumes they are familiar with the nature of the Juvenile or Criminal Justice system and possible future proceedings against them and can appreciate what it means to have something they say used.
How does a child or adolescent know what against means in this context? Who uses something against them? How does something get used against them. And for what purpose or purposes does something get used against them?? What experiences has a The child or adolescent has had no experience in his or her life to date that is in any way likely to inform them of the significance in this context of having something used against them?
In all likelihood most children and adolescents are probably more familiar with “The People's Court” or “Judge Judy” or one of any number of television shows that twist the law to their commercial advantage than they are with any legitimate court of law, and would be hard pressed to tell the difference. The word court on its own does nothing to alert a child or adolescent to the nature of the court being considered. And without notice of the nature of the court involved, there is no way for a child or adolescent to appreciate what might be at stake.
There is no basis to think that a child or adolescent has any idea what kind of help is contemplated here. Furthermore, in order to determine whether you need help you must first understand the nature of your predicament and thus the kind of assistance that might be of value to you. But we have already established how unlikely it is that any child or adolescent will understand what is going on. Most children and adolescents have never had anything to do with a lawyer and it may very well be that no one in their family has either. Help doing what? Why would a child or adolescent have any understanding of what kind of help he/she could hope to attain from a lawyer and to what end? No child or adolescent can make an informed decision about whether to either insist on or to forgo assistance without a clear understanding of what that assistance might be?!
Children and adolescents are literal. They are likely to assume any reference to their capacity to afford an attorney refers to whether they can afford to pay for an attorney themselves. Are they supposed to know this refers to their parents as well? If their parent or guardian is present and does not address this what is that child or adolescent to assume and to do? Is it now up to him or her to make that determination in the face of their parents' silence? This also may place the youth (and family) in the humiliating position of having to acknowledge that they cannot afford to hire an attorney; that they are indigent. So what happens to a child or adolescent whose family does not want to admit that? Might they not be inclined to lean towards a waiver in order to avoid the humiliation?
This is the second time the term court is being used in this warning and the way in which it is now being used is likely to be very confusing. In the first instance court is used in the context of it being a place where something the child or adolescent says can be used against him/her. It is a warning about the punitive nature of court. Now the child or adolescent is being told that for help he/she should rely on the very same potentially punitive institution to provide it.
Does get in this context mean send for one? There is certainly no indication as to when the youth will get a lawyer from the Court. If this involves some period of waiting, how long will that be? And what happens to the youth while waiting for the Court to get him/her a lawyer; does the youth wait at home, at the precinct, in a jail cell, for an hour, two hours, all day, overnight? These are the kinds of details that matter to a child or adolescent faced with this dilemma and are bound to influence any decision he or she makes. And yet here the youth is left in the dark as to the timing implied by get.
There is no way for a youth to know whether stop in this context means permanently or simply pause until the police decide to start again? And if a youth wants to stop, how is that to be communicated so that it is complied with? What are the magic words? Is it reasonable to expect a youth who is inclined to say STOP to actually do so to adult police in a custodial interrogation?
What is about to transpire is anything but an interview. The first definition given in Webster's for the word interview is “…a formal consultation usually to evaluate qualifications”. Children and adolescents are interviewed for a summer job; they sometimes interview someone for their school paper. It is safe to assume that when a youth hears that they are going to be interviewed they imagine a friendly conversation where they are asked a series of innocuous questions. But what is about to transpire here is an interrogation. Would any intelligent person, let alone a youth, ever consider questioning by the police of someone they are holding in custody who they believe to be the perpetrator of a crime to be an interview? To suggest to a child or adolescent that what is about to transpire is an interview is to soft sell the nature of the circumstances and to implicitly minimize its importance. This is a complete misrepresentation of what is about to transpire and doesn't begin to put the youth on notice of what is at stake.
Anytime contemplates a waiver having been exercised and an interrogation having commenced. A youth hearing this is likely to assume that a waiver is therefore expected and an interview will take place, so that the issue is not whether the youth will waive and talk but for how long.
Now consider that notwithstanding how misleading, complex and confusing this “simplified” version is, the child or adolescent is expected to sit through the warnings in their entirety before responding at all and retain the information they have just been given as well as process it all well enough to make an informed decision about what to do.
Even more troubling is that in most jurisdictions the law requires only a simple “yes” from the youth at the end of the warnings in response to the question “Do you want to talk to me” and that often leads to an assumption that the youth has understood all of the complexities, rights and interests set forth above, carefully considered them, weighed his or her options and knowingly, intelligently and voluntarily waived the right to remain silent. Nothing could be further from the truth.