From SCOTUSBlog, Lyle Denniston discusses whether the Supremes will take a case, which Justice Thomas appears pretty hot on, out of Florida on whether Miranda requires the police to inform the suspect prior to interrogation that he has the right to have an attorney present during the interrogation, or merely that he can consult with an attorney before answer questions.  Of course, all this presumes that Miranda warnings are given at all, which sometimes doesn’t happen even though the cops remember it distinctly when hearings and trial roll around.

But Lyle’s post got me thinking.  Given that Miranda was made up  from whole cloth in the first place, essentially a Supreme Court Justices vision of good stuff to say to make clear to the subject of an interrogation that he really, really should keep his mouth shut, and given that it’s turned out to be a boon to the police and failed miserably to fulfill its purpose for defendants who simply cannot control the compulsion to have noise emit from their yaps, what if we had a shot at reinventing MIranda?

What would you want to include in the Miranda warning?  The current generally accepted warnings (long form) are as follows:

1. You have the right to remain silent. Do you understand?


2. Anything you do say can and will be used against you in a court of law. Do you understand?


3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning. Do you understand?


4. If you cannot afford an attorney, one will be appointed for you.  Do you understand?


5. Understanding your rights as I have explained them to you, are you willing to answer my questions?

Notice that there is nothing in there about, “so, if you don;t want to answer my questions, what are you afraid of?”  And, of course, there is no requirement that the defendant sign off that the rights have been given.  But putting these minor details aside, what else should be in there?

Here’s some additional thoughts that I think should be considered for inclusion:

• If you want to exercise your right to an attorney, the only thing you need to say to me is “I want an attorney now” and I will stop the interrogation until you have an attorney to represent you.  Say something different, however, and I will continue to interrogate you.




• No matter how good your story is, I am not going to let you go afterward.




• I may pretend to like you, but I really don’t.  It’s just to get you to talk to me.




• This interrogation is not being recorded, so my recollection of what you say is the only one that counts.  And sometimes, I don’t remember things the same as other people.




• Everything you say, even if you think you’re being funny or just filling the uncomfortable silence, is going to be used against you.  And words spoken in jest don’t sound nearly as funny at trial.




• If you ask me questions, like should you have a lawyer or should you answer my questions, I will lie to you because the law allows me to do that.




• If at any time you decide that you no longer want to answer my questions, you can tell me you want me to stop asking questions and I will end the interrogation immediately.  But if you don’t say the magic words, I will continue to question you until I’ve used up the entire overtime budget, because I can.

I’m sure there are many other questions, and indeed many other approaches to the problem.  Unfortunately, I am limited by my personal Miranda Myopia.  Any other ideas?