When Ernesto Miranda was arrested by the Phoenix Police Department in 1963, accused of kidnapping and rape, it’s a cinch that of all the things he thought might happen to him, the likelihood his name would become a verb was probably nowhere on the list.
In crime fiction, cops “Mirandize” suspects all the time. Too often, perhaps. Leslie Budewitz, a lawyer and president of Sisters in Crime, says that giving every character a Miranda warning is “one of the 12 common mistake fiction writers make about the law.”
Writers of crime novels and screenplays often don’t get their Miranda facts straight. The Miranda warning is based on the Fifth Amendments self-incrimination clause and the Sixth Amendment’s right to an attorney, in words familiar to any consumer of U.S. popular culture:
- You have the right to remain silent;
- Anything you say can be used against you in a court of law;
- You have the right to consult with a lawyer and have that lawyer present during the interrogation;
- If you cannot afford a lawyer, one will be appointed to represent you
As John Schembra points out in the comments below, some states have slight variations on the core Miranda rights, cited above, particularly as they apply to juveniles. Some of those interstate differences are described in this Wikipedia article (and subject to change).
In 2010, the U.S. Supreme Court decided (in Berghuis v. Thompkins) a controversial case involving the right to remain silent, which some scholars believe weakened Miranda protections.
At last month’s Writers’ Police Academy in Green Bay, Wisconsin, police training officer Mike Knetzger agrees that fiction provides Miranda warnings far more often than actually appropriate or used in practice. He outlined the three essential elements that must be present for a Miranda warning to be necessary.
Crime + Custody + Questioning
The occurrence of an actual crime seems an obvious prerequisite, but in many situations, police may simply want to talk to a person—for background or as a witness, not yet a suspect. Violations and infractions (civil offenses) are not “crimes.” Examples are traffic tickets and the one Knetzger gave—just possibly from on-the-job experience—running out of the Green Bay Packers’ Lambeau Field stark naked.
Individuals must be “in custody.” Even if they are at the police station, if they are free to leave, they are not in custody and, therefore, receive no warning. However, if they make “spontaneous statements” there—“He trashed my cooking one time too many and I hit him over the head with the frying pan”—those statements can be used in court.
The questioning of the individual must be intended to elicit incriminating evidence, not just make general inquiries. After a crime is committed, the police may ask a great many people about the events and the people involved. None of these are necessarily suspects—yet.
Next time you see, read—or write—that a fictional character receives a Miranda warning, ask yourself whether all three of the above conditions are met.