Anything you say may be used against you

Posted by on March 28, 2012

In my last post I talked about things you say that actually accomplish something, such as warning, thanking, advising, and the like – and the idea that utterances like this, often formulaic, are called speech acts. A particular division of speech acts are characterized as illocutionary: illocutionary speech acts are ones in which the speaker, through words, performs an action. Among these, there is perhaps none more contentious in the United States than the speech act that is informally called Mirandizing: the recitation of the Miranda Rights by an arresting officer to a suspect in a crime. This obligatory and formulaic warning may be somewhat mysterious to non-Americans who read US crime fiction or watch US television and movies. Here’s what’s going on, with a few hints as to why this verbal warning figures so prominently in US law and litigation.

The requirement for police to inform suspects of their Miranda Rights grew out of a court case in the 1960s, involving a suspect named Miranda, in which it was determined that the suspect, by not being informed of rights granted to him in the US Constitution, was in effect being deprived of them. This was seen as a violation of the US Constitution, which is a strict no-no in any situation involving a US citizen and legal authorities. Consequently, police officers since the Miranda case have been required to state the rights to suspects, and many police officers carry the text of the warnings on a card to insure that they don’t forget any part of it. A typical formulation goes like this:

You have the right to remain silent. Anything you say or do can and will be used against you in court. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

Why do these sentences, which do not use any difficult words and which can be understood by most people with a basic grasp of English, provide the basis for so much litigation? This brings us back to the notion of speech acts and the peculiar circumstances under which the Miranda warning is used.

If you think about verbal warnings generally, they are a win-win situation because interests between speaker and addressee are shared: the warner is doing a good deed, often prompted by conscience or common sense, and the person being warned is perhaps being spared a difficult, dangerous, or deadly experience. In a Miranda situation, however, the conflict of interest in the conversation between arresting officer and arrestee is unique in there being no interest in common. In no other conversation is there such a contrast in aims; it’s a zero-sum game. The police give the warning not because they wish to insure an advantage for a suspect but because they are obligated to warn him or her. Of course, what the police really want is for the suspect to talk. Nothing aids an arrest, from the police’s point of view, like a confession or an incriminating statement. From the arrestee’s point of view, and contrary to his or her interests, there is an impulse to talk: because we desire to appear cooperative, because there is a natural tendency to be honest and forthright, and because most arrestees are ignorant of their disadvantage in this adversarial situation.

Litigation that arises out of Miranda irregularities often centers on what amounts to an arrestee invoking the rights, and what amounts to waiving the rights. The interest of the arresting officer is that you will unambiguously waive your rights and spill your guts – tell everything you know about the situation you find yourself in. Your interest, contrary to your nature, is to invoke your rights by keeping your mouth shut and waiting until an attorney is present. Most legal scholars agree that it’s in your best interest in this situation to make a speech act of your own: declare unambiguously that you understand your rights, and that you intend to exercise them by not talking without the advice of an attorney. This is a low-drama and safe exit from the situation, so it’s not the one that you will usually see in crime dramas, but it’s certainly worth keeping in mind if you’re ever on the receiving end of a Miranda warning!

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