RICHARD POSNER ON MIRANDA

Thanks to television and the movies the myths about the Miranda rights are infinite. If I had a dollar for every time a client told me that their case must be dismissed because they were not given their Miranda rights I’d be a very rich man.

Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.