Two Tears

Two true stories, that is, of people on a sex-offender registry.

The first. Today, she’s a 34-year-old mother of two great kids. Back then, she was a teenager herself when she slept with a boy on the night of her 19th birthday party. The boy was mature enough to pursue her but, as it happened, he was 14. His mom reported her to the police the next day, and they called her in to talk. They told her if she were honest, she wouldn’t go to jail, but it’s funny how that works, because after they filed the case, she was told that she could serve 20 to 25 years if she went to trial and lost. Or she could plead guilty and serve minimal time, but she would have to register as a sex offender.

Today, she’s a good person and a mother of two great kids, but her conviction looks like child molestation on paper, and she must register as a sex offender for life. Recently, she worked to become a staff writer for a local newspaper, but then someone complained about it, and the paper let her go. No one bothered with the details. You should watch her video.

The second. He was a junior in college when he went to Miami for spring break. He met a girl there at an 18-and-over club, and they ended up hooking up. Seven months later, he got a call from law enforcement in Florida. As it happened, the girl had used a fake ID to get into the club. She was actually 15 at the time, and her mom filed a complaint when she found out. So they asked the young man to come to Miami to talk, and he agreed. He told them everything was consensual, and he assumed she was 18 or older since she was in the club. They took his statement, thanked him for his cooperation, and arrested him on the spot.

Five years later, he was homeless because he couldn’t find a job or housing given his lifetime sex-offender registration. Two years ago, almost ten years after his conviction, he failed to register his whereabouts and received three years in prison. You should read his story, too.

 

The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

How to Assert Your Miranda Rights

Here’s a guide to your Miranda rights on the occasion of their 50th anniversary. It’s a rough composite of the current state of the law, but you should always consult a lawyer about your specific situation before consenting to an interview with law enforcement.

The first thing to understand is that the police don’t have to give you Miranda warnings until they take you into custody and try to interrogate you. If you’re not in custody then you are free to go, and you probably should, but if you don’t, the police are free to question you as much as you’ll let them, and they don’t have to give you any warnings about it. Even if they briefly detain you based on reasonable suspicion, which they’re allowed to do, they can still question you during the stop without giving you warnings, though you’re free to assert your rights and consult a lawyer before answering (and you should).

How do you know if you’re in custody? Well, if you’ve been arrested then you’re in custody. But even if you haven’t been arrested, the test is whether a reasonable person in your shoes would feel like he or she were free to leave. So if you’re not feeling the conversation but don’t know if you can leave, you should ask. Am I in custody? Am I free to go? If you’re free to go then you should go. If you’re not then you should assert your rights and consult a lawyer before answering any more questions.

Even once you’re in custody, the police don’t have to give you Miranda warnings until they begin to interrogate you. Interrogation means they’re either directly questioning you about your arrest or doing something else that’s likely to elicit an incriminating response. That may not include their basic booking questions about your name, address, height, weight, and other biographical information, so you may not hear those warnings for some time. Remember that you don’t have to answer any questions you don’t want to.

Now, let’s say you’re in custody and want to assert your rights. How do you do it?

You must speak up. You must claim your rights to benefit from them. So speak up. Say that you don’t want to talk at all and that you want to see a lawyer. You have to speak the words. If you don’t, someone may decide that you waived your rights or didn’t assert them in the first place. It may sound strange, but you don’t necessarily invoke your right to remain silent by staying silent, so don’t leave it to chance. As long as you’re talking or saying nothing, you haven’t claimed your rights, and the police don’t have to leave you alone. And most likely, they won’t. The only sure way to make them stop is to assert your rights by saying you don’t want to talk and you want to see a lawyer.

You must ask for a lawyer. You have two rights to assert: a right to remain silent and a right to a lawyer before any questioning. You should assert both. But if you’re picking just one (and there’s no reason for that), make sure to say you want a lawyer. If you just say you don’t want to talk, the police will have to stop the interrogation, but they won’t necessarily have to leave you alone for long, and they may be able to come back and try again within hours. But when you say you want a lawyer, you automatically invoke your right to remain silent, too, and you cut off any further attempts at questioning for at least fourteen days.

You must be clear. You must assert your rights clearly. You can’t be vague, ambiguous, or equivocal. You shouldn’t ask them for advice or permission. You must say that you want a lawyer, period. The law is that you must assert your rights clearly enough that a reasonable police officer under the circumstances would understand your wishes. Don’t leave it to chance. If you’re not clear, the police may do anything to keep you talking or listening so they can keep the interview going. They may sidestep what you said or ignore it altogether. They don’t necessarily have to clarify your wishes or respond to you at all. Below are four actual examples where courts have ruled that people did not clearly invoke their rights.

  • “Maybe I should talk to a lawyer.”
  • “I think I would like to talk to a lawyer.”
  • “I think it’d probably be a good idea for me to get an attorney.”
  • “I don’t want to talk about it.”

Stick to something like these instead.

  • “I don’t want to talk at all [anymore].”
  • “I don’t want to talk.”
  • “I want to remain silent.”
  • “I want a lawyer.”

You must repeat as necessary. You must insist on your rights. Don’t count on the police to scrupulously honor them. Repeat yourself as needed if they ignore you, talk over you, threaten you, or otherwise disregard your wishes. Keep saying that you don’t want to talk and you want to see a lawyer. Keep saying that and nothing else until they leave you alone. Then contact a lawyer immediately.

The 50th Anniversary of Miranda

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

This month marks the fiftieth anniversary of the U.S. Supreme Court’s seminal decision in Miranda v. Arizona.

To commemorate the occasion, here’s a great write-up on why the case matters so much and how we can do even better going forward.

But you should read the opinion for yourself if you can. It chronicles the history of the Fifth Amendment’s right against self-incrimination. It catalogues many of the standard police interrogation practices that remain current today. And it makes a moral case for an adversarial system that respects the dignity of its people over an inquisitorial system that simply overpowers them.

This last point becomes ever more important in our lifetimes as the balance of power between people and the state shifts decidedly, and permanently, in favor of the state.

Whether you read it or not, below is the core of the Miranda opinion, which describes what we’ve come to know as the Miranda warnings and which I’ve revised to make easier to read.

* * * * * *

We spell out our holding with some specificity in the pages that follow, but briefly stated, it is this: a prosecution may not use any statement that people make to police in a custodial interrogation unless it demonstrates that police used effective safeguards to protect the right against self-incrimination. By custodial interrogation, we mean any questioning that police initiate after they take people into custody or otherwise deprive them of their freedom of action in any significant way.

For the safeguards to be employed, we require the following procedures in the absence of other, fully effective ways to inform people of their right to remain silent and ensure they have a continuous opportunity to exercise it.

Before any questioning, the police must warn people that they have a right to remain silent; that any statement they make may be used against them as evidence; that they have a right to have an attorney there with them before they’re interrogated; and that they’re entitled to have an attorney appointed for them if they can’t afford one.

People may waive these rights as long as they do so knowingly, voluntarily, and intelligently. But they also reserve the right to change their minds and ask for a lawyer at any time, and if they do, the police must stop questioning them. The mere fact that people may answer some questions or volunteer some statements on their own does not deprive them of the right to refrain from answering further questions until they’ve consulted an attorney and consented to more questioning.

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