By: Joseph L. Giacalone
The one area of writing crime that I see errors made more often than anywhere else is: Confessions and Admissions, including the Right to Counsel and Miranda. This series of articles will focus on those issues. I will give examples how to avoid those errors and what court cases you can find them in. This will save the author from being a researcher and do what he/she loves the most, write!
How Does the Writer Handle Miranda Issues?
You have to ask yourself this question every time you have a custodial interrogation scene. Custodial interrogation means that the person is under arrest and they are no longer free to leave. Unfortunately for some, television is their sole basis for law school. “This is how they do it on (Name any police show), so this is how it must be done.” Here is a tip: television is wrong more than half the time.
Here is a quick survey. How many of you believe that once you are under arrest, the police must read Miranda to you? If you said yes to that question, than you are a victim of television. Only in Hollywood, do they start, “You have the right to remain silent…” right after the cuffs go on. In reality, the police will not read Miranda to you probably ninety-five percent of the time. Miranda is a math formula: Interrogation + Custody = Miranda; 1+1=2. Both elements must be present before Miranda is constitutionally required.
I. Subject: The Miranda Rule
Question: Must Miranda Warnings always be given to a suspect who is questioned at a police facility?
Answer: No. Look at the formula. We have interrogation (questioning), but do we have custody? If I am a detective and ask you to come to the station house to answer some questions, are you in custody? No. We made an appointment; you cannot be forced to come or you can tell me to talk to your lawyer.
Resource: Case of Oregon v. Mathiason 45 LW 3505 (1977)
II. Subject: The Miranda Rule
Question: Is there a time when the police may question a person in custody before reading them Miranda?
Answer: Yes. When there is an imminent danger to the public for the purpose of eliminating that threat. This has been labeled the Emergency Exception.The police grab a guy in a supermarket that tried to rob the store with a gun, but he no longer possesses it. The police can question him as to the location of the weapon. This is done so that no unsuspecting child will find the gun while shopping in the store.
Resource: Case of New York v. Quarles (1984) a U.S. Supreme Court Decision
Now that you are armed with this new information, examine your interrogation scenes and ask yourself this question: “Did I handle the Miranda Rule correctly?”