Miranda and the Police Interview


No Miranda for you!? photo: Jonas Bengtsson, creative commons license

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.

Body of Evidence: Cameras in Policing

angry man, police

(photo: Danny Hammontree, creative commons license)

State and local governments and police departments across the country are adopting body cameras for patrol officers. They can learn a lot about the benefits, risks, and unanticipated consequences of this policy from the several departments that have pioneered use of this technology, as Mike Maciag described in a recent Governing article.

In total, an estimated 22 to 33% of police departments are already using cameras. Rapid adoption without thinking through the necessary supporting policies, training needs, and long-term budgetary implications may cause this generally positive trend in policing to falter. The 7/31 release of body cam footage related to the death of Samuel Dubose in Hamilton County, Ohio, will increase calls for adoption.

Data Storage & Analysis

A hidden cost of the cameras is in the storage, retrieval, and analysis of data. “It’s the expense related to data storage—not the purchase of the cameras—that typically ends up being most costly for departments,” says Miciag, particularly for departments that keep footage for a year or more. (Video considered evidence in a court case might be kept much longer.) Writing up routine reports may take longer, if officers need to make sure their report jibes with the video. Departments must respond to requests for video from prosecutors, defense attorneys, the media (in some jurisdictions), and even citizens under state freedom of information laws or departmental policy.

Human Factors

Younger officers in tune with the YouTube era are more receptive to the cameras. “Typically, senior officers don’t see the value of the video or want the video unless it saves them,” said Kelvin Wright, police chief of Chesapeake, Va., which has used cameras since 2009. Traffic officers, accustomed to in-car cameras, also have been more welcoming. Policies need to be in place regarding when the camera should be turned on, as well as when it should not be turned off. In Daytona Beach, turning off the camera to avoid being recorded is grounds for firing. The cameras don’t record 24/7, because police need to be able to have private conversations and moments and to interview confidential informants.

Citizen Privacy

Not all jurisdictions/departments require that officers tell the public they are being recorded. A concern is whether people involved in a domestic dispute, for example, will not call police because they don’t want their grievances publicly available. Some departments require that cameras be switched off in medical facilities and other specific settings.


On one hand, the Chesapeake department has found a sharp reduction in complaints against officers when citizens know their interaction is recorded, and many complaints can be quickly invalidated by the recordings. On the other, use-of-force incidents declined in a 2012 study of the Rialto, Calif., department. Analysts believe both police and citizens are more cooperative when cameras are present. And the footage is can be useful in other situations: letting community leaders see the imminent threat that led to a nonfatal police shooting in Daytona Beach defused a potentially confrontational situation. “Everybody behaves better when the cameras are on,” said Daytona police chief Michael Chitwood.

UPDATE 7/22/15

The disturbing footage of the traffic stop of Sandra Bland, which ended with her death in a Houston, Texas, cell a few days later highlights a number of challenges in using cameras in policing. Bland’s interaction with Texas state trooper Brian Encinia was captured not by a body-cam, but by a dashboard camera in his vehicle. The sound quality is excellent, despite the distance of the camera from the interaction.

Glitches in the footage–believed by some commenters to be “editing” of the video and by others as malfunctioning equipment–are sowing confusion in the case and beg for authoritative clarification. Trooper Encinia appears to lose his temper and escalate the situation quickly, when facing the initially uncooperative Bland. This is the opposite of how police officers are trained to behave.

Once he has her out of her car, the action moves to the side, and the camera no longer captures the video, though continues to record audio. A passerby recorded some of that interaction on his cell phone, however. Then, three days later, Sandra Bland dies in her cell, apparently between 7 and 9 a.m. Video of the hallway outside her cell reportedly shows no one in the area. Her death is called a suicide; friends and family don’t believe it.

People all over the country have seen this video now, as it was released to the media. However good the video is, alone or in combination with the cell phone footage, does it tell the full story of the arrest and trooper Encinia’s actions? What precipitated Bland’s death? Regardless of how incomplete information is so far, judgments will be made because people have “seen what went down,” and inevitably will interpret it according to their own experiences and opinions.

****The Whites

crime scene tape

(photo: wikimedia)

By Richard Price writing as Harry Brandt, narrated by Ari Fliakos. This crime thriller received a splashy reception, in part because of the puzzlement over Price’s transparent attempt to write it pseudonymously (which even he gave up on), but more because—whatever name he adopts—the publication of one of his gritty novels is an event crime fiction aficionados celebrate. Price is the author of Clockers, Bloodbrothers, The Wanderers and numerous screenplays, as well as award-winning episodes of The Wire.

What has made Price so successful, as Michael Connelly points out in a New York Times review, is his belief that “when you circle around a murder long enough you get to know a city.” Says Connelly, Price is an author who “considered the crime novel something more than a puzzle and an entertainment; he saw it as societal reflection, documentation and investigation.”

The book’s title refers to the unsolved but unforgotten cases a tight group of young police officers confronted during their careers. Think the elusive target Moby Dick, not a racial reference.

They had all met their personal Whites, those who had committed criminal obscenities on their watch and then walked away untouched by justice . . . .
No one asked for these crimes to set up house in their lives, no one asked for these murderers to constantly and arbitrarily lay siege to their psyches like bouts of malaria.

At the time of the novel, most members of this formerly closeknit group are out of the NYPD because of injury, other opportunities, or sheer burnout, but Sgt. Billy Graves is still on the force. Billy knows his friends’ “Whites” like he knows his own badge number, and when they start dying in violent circumstances, he has to ask himself . . . Meanwhile, his family is the target of an unnerving and escalating series of threats, which he urgently needs to figure out.

The book, told from the point of view of both Billy and his antagonist, is full of characters from diverse backgrounds and ethnicities, yet all are believable as individuals. The writing never falters and contains, as Connelly says, “a fierce momentum.” A favorite line of mine, about a witness smoking dope in his apartment, had him “blowing out enough smoke to announce a Pope.”

With recent events in Ferguson, North Charleston, Baltimore, and elsewhere, it isn’t good timing for a cop-as-hero book, and this novel’s moral dilemmas force Billy and the reader to consider the role of policing in our society and the differences between policing and justice.

Fliakos’s narration is excellent. Despite the large number of characters, I was never confused about whose voice I was hearing.