Is a Miranda waiver ever voluntary, if custody is presumptively coercive? Courts don't ask this question. They act as if the Miranda warnings make waivers both knowing and voluntary.

It took forever to rewrite this section from its original script.  I wasted tons of time trying to explain how the courts need to have it both ways here — on the one hand, presuming involuntariness because they don’t want to determine it on a case-by-case basis, but on the other hand presuming voluntariness because they don’t want to determine it on a case-by-case basis. If they want to allow any confessions, they need a prophylactic rule that tells you when the statement itself is voluntary despite custody: knowing and voluntary waiver. But then they’d also need a rule that tells you when the waiver was voluntary despite custody. Which would require a second layer of warnings or something. But then they’d need a third layer of warnings or whatever to ensure that the second one was all right. And so on, turtles all the way down. Or a snake eating its own tail as you keep coming back to the same question, pick your metaphor.

But that’s not how the law actually works. So going into all that ultimately seemed like a waste of time for our purposes (great topic for a law review article, though. And gee, I’ve got all this research and notes sitting right here…).

Of course the problem is the underlying preference for a “bright line” one-size-fits-all rule for analyzing people’s individual behavior, which by definition is going to sacrifice individual justice for bureaucratic efficiency. And in the end, that laziness is the explanation for how it really works: we just ignore the inherent problem and skip step 2. And I mean “we,” because lawyers are as much to blame for not mentioning DP voluntariness in the first place — everyone in the system tends to think Miranda makes everything voluntary, statements and waivers alike, so we’ve all just kinda let this happen.

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Join the conversation! There are now 12 comments on “Convict Yourself pg 107
  1. Again, more great information which I did not know & which I hope I shall never need.

    Thank you.

  2. InquisitiveReader says

    Thank you for your comic, I’ve read it front to back and love the inventive characters and quirky situations.

    “[…]The courts say everyone — even severely retarded or mentally ill people — understand what they mean.”

    Would you have a citation for this statement? Is this a matter of case law or does the court consider retarded and mentally ill persons incapable of possessing free will?

  3. KW says

    This problem could be resolved by simply requiring a lawyer to be present for statements to be acceptable. Of course, you’d get few confessions from those who were not in their right mind, mentally unfit, protecting someone else, … oh, I guess we can’t have that, can we? ;-)

  4. SPACKlick says

    Nathan, It’d be great to see your take on the ramifications and content of lat week’s People V Tom decision in California.

    • Tom was prosecuted for T-boning another car, killing a little girl and severely injuring her sister. He never asked how the people in the other car were, and the prosecution wanted to use his silence to help demonstrate his lack of concern for the safety of others. He was under arrest, but not subjected to custodial interrogation (so there was no need to mirandize him), and he had not been mirandized. He just didn’t say anything. The issue was whether the state could use his silence after his arrest, but before being mirandized, as evidence against him.

      The ruling was that, before being mirandized, merely remaining silent isn’t enough to invoke one’s Fifth Amendment rights — you have to affirmatively invoke your right to remain silent for it to have any effect. We saw this already with the senate hearings scenario, which happened before any arrest took place. (And we’re going to see how it plays out post-Miranda-warnings in just a few pages, if I can ever get a minute to draw them. But that’s not the issue here.)

      Tom’s case was interesting because is was after arrest, but before the warnings, which the law hadn’t had to deal with yet so it was a “case of first impression” in California. But the general rule is pretty clear, and it didn’t take much rationalization to apply it to this case. Merely remaining silent does not assert your rights — you have to say that you’re asserting them first, and then shut up. It’s not a fair rule, but it’s not a new one, either.

      I don’t see this as an earth-shaking case, really.

      EDIT: Here’s a different take on it that’s worth reading.

      • I think this is beyond silly. I remember when my car got totalled. If I’d had my wits about me, I would have helped direct traffic or whatever. But, I was apparently in mental shock for a while, and I literally just stood there.

        Furthermore, just because someone is silent for whatever reason (shock, introvert, was told to be silent), hardly means that they wanted the accident to happen, or knowingly or unknowingly didn’t try hard enough to avoid it.

        What next, you gotta explicitly invoke your right to not be the victim of a crime?

        • You’re not alone. Lots of people think the police should not be allowed to use your silence against you. (To be clear — if you expressly invoke your rights, then they cannot use your silence against you. They can only use it if you didn’t invoke your rights.)

          But that’s the law. The courts say so. The state is free to ask the jury to imply guilt from your silence. And the defense is free to argue all the reasons why silence doesn’t mean guilt.

          As a side note, in England their version of the Miranda warnings explicitly tells you that, if you’re questioned and don’t tell them a fact that you later rely on in court, they can use that against you.

  5. WJS says

    It’s a reversal of the burden of proof, right? Before Miranda, the prosecution has to prove that testimony was voluntary, after Miranda the defense has to prove that testimony was involuntary?

  6. Marten says

    How would Miranda rights and interrogation work if the person being interrogated needs a translator to understand English?

  7. Shaula says

    “severely retarded or mentally ill people”

    the term ‘retarded’ is pretty much exclusively used as a slur at this point. Yeah, it used to be the medical term, but language evolved to the point where it’s incredibly inappropriate in this context. ‘mentally disabled’ would be much better.

  8. Ángel says

    “The courts say that everyone understands what they mean?” heck, if this comic shows anything, it’s that it’s much much harder than what a layman could (naively) expect.
    «No, I don’t understand all this means. May I get a degree on personal rights first, please?»

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