At Bat for Miranda

It’s important to remember to never assume anything when it comes to Miranda. Police Officers will often state that they read Miranda to your client, typically from a pre-printed card. When working “triage”, it’s easy to gloss over that fact and assume that because it’s pre-printed that the rights are full, complete, and correct. Your client will admit that Miranda was read and that will be that.

However, those pre-printed cards create more questions than answers. Usually, those cards or copies of those cards are not included in Discovery. The State and Law Enforcement simply don’t think of the Miranda cards as evidence that needs to be disclosed or is discoverable, but they are wrong. Your client isn’t going to know whether or not the rights they were read were full and complete. They didn’t go to law school, they probably didn’t even take advantage of a Street Law session, they simply don’t know. Clients, much like a majority of jurors, assume that when it comes to the rights, that Law Enforcement will be relaying to them correctly. But your clients and law enforcement may very well be wrong.

Miranda is fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual.[1]. Miranda makes it clear that clients (and suspects) must be informed of their right to have an attorney present before and during questioning. [2] The Florida Supreme court supported this fundamental right in Modeste v. State when it held that the failure of providing express advice of that right vitiated a waiver of Miranda. [3]

What rights does Law Enforcement have to relay? To give force to the Constitution’s protection against compelled self-incrimination, SCOTUS held that Miranda prescribed four warnings before custodial interrogation:

(1) Your client has the right to remain silent

(2) Anything your client says can be used against him in a court of law

(3) Your client has the right to the presence of an attorney; and

(4) If your client cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. [4]

So, got it, Miranda and its rights are important, so what? The “what” is that those preprinted cards can create the perfect hole in the State’s case, depending on what is written on those cards and even further, what the officer testifies to at a Suppression Hearing. There has to be an inquiry into the adequacy of the rights read to your client.[5] If an officer merely states that he read Miranda from a pre-printed card and the State does not have the officer elaborate on what was actually said, or even further, if the officer only paraphrases on cross examination even if what was read is specifically inquired upon, the State fails to meet the burden for Miranda when the adequacy of Miranda is at issue.

This argument and inquiry may not always work, the rights relayed very well may be deemed adequate, but it’s an argument to be had. If defense attorneys continue to gloss over those pre-printed Miranda rights, it leads to an assumption that those cards are correct and adequate, which ultimately weakens the power of Miranda. Every now and then, we need to go to bat for Miranda to ensure the quality and consistency of Constitutional rights as applied to each of our clients.

Plus, it’s always fun to keep the State on their toes.


[1]U.S.C.A. Const.Amend. 5; West’s F.S.A. Const. Art. 1, § 9. Ramirez v. State, 739 So. 2d 568 (Fla. 1999)
[2]384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
[3]4 So. 3d 1217 (Fla. 2009)
[4]U.S.C.A. Const.Amend. 5. Florida v. Powell, 130 S. Ct. 1195 (2010)
[5][Id.]

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2 responses to “At Bat for Miranda

  1. Pingback: Driving Miss Mary | Swimming Among the Sharks·

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