Miranda en Espanol…(?)

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U.S. arrest procedures are so frequently portrayed in American films and TV programs that most people in America—and many throughout the world—have become familiar with the “Miranda” advisory.  This year, 2016, marks the 50th Anniversary of the landmark U.S. Supreme Court’s ruling in Miranda v. Arizona, which expanded the Fifth Amendment privilege against self-incrimination from the courtroom to the police station, and it is quite remarkable to note how controversial this rights “warning” has become over its five-decades’ implementation and how misunderstood it still can be despite (or maybe because of) its prevalence in American culture as popularized by entertainment media.

One of the more surprising aspects of the “Miranda Warning” is that, contrary to popular belief, it is NOT mandatory that it be given to suspects at the time of arrest.  Thus, it is misleading to see the stereotypical Hollywood portrayal of the righteous, badge-and-pistol brandishing officer aggressively proclaiming to a perp that he is “under arrest” and that accordingly, “he has the right to remain silent.”  In order for the “Mirandizing” of a suspect to be triggered, three elements need to exist: Authority; Custody; and Interrogation.  If the police are not questioning or planning to question the suspect about the crime he or she is charged with, there is no requirement that he or she be Mirandized.  At the point that a suspect is Mirandized, however, it is imperative that he or she be made to understand that he or she is a suspect in a police investigation and that as a suspect he or she has the RIGHT to expect the police to “reasonably” communicate the following set of rights prior to any questioning:

-The right to remain silent;
-The right to have an attorney to defend him or her;
-The right to have an attorney with him or her both prior to and during police questioning*;
-The right to have the government provide an attorney at no charge if the suspect cannot afford one;
-The right to give-up these rights and to speak with police, along with the right to STOP speaking with the police any time after starting to speak, and thereby to reclaim the rights that were given up.

Moreover, a suspect needs to understand that by exercising his or her rights, he or she will not incur adverse consequences.  Furthermore, that by “waiving” such rights (meaning NOT exercising the rights), he or she may incur adverse consequences since what is said can be used against him or her in a court trial.

Hollywood police dramas tend to omit the last element of Miranda in which a suspect should be asked by the police if he understands his or her rights and whether he or she still wants to speak to the police.  In reality, many police officers, too, also fail to specifically ask this important question which is calculated to elicit an “express” waiver of rights.  As a result, this omission can jeopardize the prospective introduction at trial of any statement or confession collected by the police.  For a waiver to be valid, it must be a voluntary product of free and deliberate choice, knowingly and intelligently given, rather than the result of intimation coercion or deception.  The waiver must be made with the suspect’s full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.  In the absence of such an express waiver, the court may during a trial suppress and exclude statements made as having been improperly obtained.  While many police officers do memorize Miranda, proper procedure states that the advisory should be READ directly off the Miranda Warning Card that should be a part of every police officer’s gear, hence the development of the familiar phrase: “Do you understand these rights as they have been ‘read’ to you?”  The reason for this is to preclude an arrestee’s later claim that parts of Miranda were omitted or altered at the time that the rights were communicated.

The question of whether a suspect actually did, in fact, understand the rights under Miranda at the time that they were conveyed has become a significant point of contention by both courts and legal scholars.  It is conservatively estimated that about half-a-million mentally disabled offenders are arrested annually in the United States.  Clinical scientific analysis of the capacity to understand the relatively complex sentence structures in conjunction with the complex concepts during the stress of an arrest incident (in combination with the counter-intuitive willingness to trust the “protecting” words of the adversarial arresting officers), reveals significant incidence of failure by suspects actually to understand their rights—even in cases in which they professed an understanding.  Curiously, the rampant popularization of Miranda warnings in movies and TV programs has created a certainly unanticipated condition in which arrestees often assume that they already “know” their rights and believe that they understand them when, in truth, their misconceptions work to their own detriment.  Thus, two distinct scenarios emerge wherein the spirit of Miranda is violated: 1) an arrestee purports to understand his rights simply in order to demonstrate deference by “going along” with the police; and 2) an arrestee devolves into a “defiantly defensive” mode and labors under the misconception that he or she understands his or her rights, when to the contrary, that understanding is flawed. Considering that a suspect’s lack of understanding can result in the suppression of confessed information, it behooves the judicial system to create procedures that can better ensure suspects’ understanding of their rights so that there can be little or no question regarding such rights having been knowingly and voluntarily waived.

While explicit waiver of Miranda rights is obviously preferred, it is not required, as shown through the 2010 case of Berghuis v. Thompkins in which the Supreme Court considered the position of a suspect who understands his right to remain silent but does not explicitly invoke or waive the right.  In a 5-4 decision, the Court held that unless or until the suspect specifically states that he or she is invoking the right to silence, any voluntary statements can be used in court and police questioning may continue. The Court held further that the mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his right to silence. Furthermore, a voluntary reply even after lengthy silence can be construed as implying a waiver. The Supreme Court, thus, confirmed that sometimes a suspect’s behavior is sufficient to imply elements that would otherwise be expected to be explicit.  Supreme Court Justice Sotomayor, a Spanish-speaker, penned a vehement dissent stating that, “[This] decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent… At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”
Part of the challenge in establishing procedures which demonstrate that a suspect comprehends his or her rights and thereafter elects to expressly waive them stems from the ambiguity of the word “reasonably” in the Supreme Court’s decision in Miranda.  No mandate exists compelling the police to develop the most successful method for ensuring the effective communication of suspects’ rights, nor is there a mandate that the police test suspects to ensure that they do, indeed, understand the rights as conveyed even despite suspects’ claims to comprehension. Miranda requires merely that police “reasonably convey” to an arrestee his or her rights.  What happens, however, in the case when rights are read in English, but the arrestee doesn’t speak English well—or at all?   Has the police’s duty to inform such an arrestee of his or her rights been discharged if the rights are read only in English simply because a suspect is in the United States and subjects him or herself to the risk of arrest in an English-speaking jurisdiction?

In the instance in which Miranda is in fact translated into a foreign language, it is imperative that it be translated correctly. Spanish-translated Miranda warnings are administered annually to thousands of Hispanic custodial suspects. At one point in the past decade, over 100 Spanish translations of Miranda from 33 states were reviewed and compared, and the quality of the translations was found to vary markedly from minor variations to substantive errors. The most serious problems involved the entire omission of Miranda components.  Improper translation of Miranda can absolutely result in the inadmissibility of evidence at trial or re-trial.  In 2013, the Ninth Circuit Court of Appeals overturned a conviction on gun and drug charges of a suspect whose first language was Spanish on the basis that when police read the suspects his Miranda rights in Spanish, the warning was improperly translated. At the time of arrest, the non-native-Spanish-speaking police officer’s attempt to communicate in Spanish the right to have an attorney provided free-of-charge to defend an arrestee if the arrestee cannot afford an attorney got butchered to the extent that the right communicated was the equivalent of: “If you don’t have the money to pay for a lawyer, you have the right.  One, who is free, could be given you.”  A three-judge panel ruled that such a communication misstated the actual right as it implied that “a lawyer who was available merely might be provided,” and that such wording did not correctly convey the government’s obligation to appoint attorneys to poor defendants. The fact that that the detective gave the warning in English, too—and accurately in the English version—worked against the police’s case, rather than as a redundant curative which the extra warning in English was intended to be. The reason for this outcome was that the court concluded that the police officer failed to clarify which set of warnings (English or Spanish) was the actual correct set.


When circumstance trigger the Mirandizing of a suspect, the police are obligated to “reasonably” communicate rights to a suspect prior to interrogation.  The question of what constitutes “reasonable” is one subject to interpretation as there are not steadfast regulations stipulated by the Supreme Court.  Although there is an expectation of “fundamental fairness” in the United States, fairness is not guaranteed.  Accordingly, it could be asserted that a non-native English speaker—or one who is mentally deficient—could be coaxed by police officers into inadvertently waiving Miranda rights, either by their own acts or omissions. The tendency for some suspects to allege an understanding of police explanations of their rights does not necessarily mean that they have, in fact understood their rights. The failure of a suspect to understand his or her rights could ultimately jeopardize the admissibility at trial of any confessions offered. Moreover, simply providing the rights in the suspect’s first language, even if this is done by a native speaker of this language, does not necessarily guarantee comprehension of those rights.  Any consideration of whether custodial suspects with limited proficiency in English have voluntarily consented to answering the questions of police interrogators an analysis of the totality of the circumstances surrounding both linguistic as well as cultural factors. Similarly, cultural factors and educational levels should be issues meriting evaluation in relation to suspects’ failure to unambiguously invoke their right to remain silent—which, counter intuitively, requires them to speak—or to obtain legal counsel.  People in the United States from foreign countries are even more apt to defer to police and not unambiguously request legal counsel in the same manner that Berghuis failed to request an attorney unambiguously.         

The Berghuis case is seen by some legal scholars as a symptom of Miranda depletion through gradual erosion so that Miranda will not likely be overruled outright, but rather, hollowed-out through the accumulation of exceptions.  Considering that U.S. law can be harsh (as with its edict that ignorance of the law is no defense), perhaps a more pertinent question to ponder is whether someone within the borders of the United States legal system “assumes the risk” of not understanding his or her rights so that the mere reading of the Miranda Rights in English satisfies the “reasonable” conveyance by police of the rights of people in U.S. territory as prescribed in Miranda v. Arizona half-a-century ago.**


-Tiene el derecho a permanecer callado;
-Todo lo que diga podra ser usada en su contra en un tribunal;
-Tiene el derecho de hablar con un abogado y este abogado podra estar presente contigo cuando sea interrogado;
-Si no tiene la disponibilidad economica para contratar a un abogado, el gobierno designara y pagara a uno para que te represente antes de hacerle preguntas;
-Tambien, puedes dejar a un lado tu derecho de permanecer callado, y tu derecho de solicitar un abogado–y puedes proceder a contestar cualquier pregunta o hacer cualquier comentario que desees. Si decides contestar las preguntas, puedes parar en el momento que desees, y reclamar el derecho a permanecer callado y de solicitar un abogado;

Entiende los derechos que jo ya le lei?  Ahora, queires hablar con migo?


* In Florida v. Powell, the U.S. Supreme Court held that Miranda does not require that a suspect be told that he has a right to an attorney during questioning when prior to questioning Miranda is read advising that a suspect has the right to talk to a lawyer before answering any questions,and that he may invoke his right to an attorney at any time during questioning.  
**In a remarkable twist in the history of the Miranda warning, it is ironic to note that Mr. Miranda, originally arrested for kidnapping and sexual assault, was the beneficiary of “karmic justice” by ultimately being killed in a knife fight by an assailant who escaped conviction by invoking his Miranda rights…