The Many Issues with the Miranda Warning

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Although intended to protect the citizens of the United States with the right to remain silent and a right to counsel, the outcome of the Miranda v. Arizona case in 1966 has become a source of recent debate due to the convoluted and ambiguous nature of the ruling.

The unofficial Miranda warning has the potential to be extremely inconsistent as police officers often speak from only memory. Not only do naive and uneducated citizens find it difficult to enact their Miranda rights, but even highly trained lawyers found the specificity currently required to impose their constitutional rights tremendously complicated according to Janet Ainsworth, JD, professor, author, and highly regarded linguist (Ainsworth 19). This specificity comes from the so-called felicity conditions of successfully saying a speech act, or a performative. These conditions are required to invoke one’s right to remain silent and have a lawyer during police interrogation. The current requirements in place to correctly enact one’s Miranda rights are extremely ineffective.

The Battle Between Courtesy and Commands

The only way to accurately invoke one’s Miranda rights is by unambiguously using a speech act, preferably an obviously command such as “Give me a lawyer”.

The Stanford Encyclopedia of Philosophy defines a speech act as ‘utterances used to perform: requests, warnings, invitations, promises, apologies, predictions, and the like.’

Even the imperative “I want a lawyer” is not always absolute (Ainsworth 11) as it has been argued this is simply stating a want, without true intent. These speech acts must be unambiguous and clearly state that the accused person wants to invoke their constitutional rights. Though there is prominent reasoning why the courts would prefer this unhedged speak, it is not logical. Human beings of the twenty-first century, at least in America, do not speak in that concrete and absolute style of language because society has deemed direct commands as rude (Lakoff & Ide 228).

This clearly explains why citizens who are being accused of a crime and facing intense police interrogation decide to use powerless language in order to appear cooperative and polite. Ainsworth also points out that people use this type of language when talking to people of power, again proving that only accepting direct commands in order to invoke a constitutional right is unreasonable. Using interrogative syntax to invoke one’s right to a lawyer like the phrases “Could I get a lawyer?” and “May I call a lawyer?” are simply attempts to appear polite (Ainsworth 8). The power structure in place between the police officers and the accused during an interrogation presents enough reason why someone would attempt to invoke their Miranda rights by using interrogative phrases. There is no reason why “Could you get me a lawyer, please” should not be considered an accurate way to enact one’s rights, as it is an indirect speech act. It can easily be understood and inferred as the accused person’s attempt to use their right and receive a lawyer.

Even though these questions are not performatives, they should still be valid methods of invoking one’s constitutional rights because the accused is indeed allowed to receive a lawyer. Police can lie during an interrogation, but should not be able to ignore or lie about the accused’s rights throughout the process. By answering the accused’s question regarding their right to counsel, the police is not giving up any more power than he already has by saying the Miranda warning the first time.

Similarly, “combining a refusal to answer questions with a request for a lawyer” should be clear enough to enact one’s constitutional rights (Ainsworth 10). Simply refusing to answer questions is, and should not be enough to successfully use one’s Miranda rights. An example of this would be “I will not talk” or “I plead the fifth.” However, after refusing to answer, by adding a conditional, or a clear request for counsel, is an obvious enough attempt to use their given rights. In Baker v. State in 2005, the phrase “I don’t even want to talk unless I have me a lawyer” is a straightforward request for counsel, even with the grammatical errors it posses. Despite that, in U.S. v Langford in 2005 and People v. Barnum in 2004, simply telling the police officers to “Go talk to my lawyer,” or a slight derivative, is not enough (Ainsworth 10). According to this case, one must first request a lawyer.

Ambiguities That Could Jeopardize Your Rights

Likewise, using hedged, or slightly ambiguous language is not effective or clear enough in order to invoke one’s rights. Saying “I think I would like to talk to a lawyer” is not a performative (Ainsworth 9). It is simply a declarative statement that describes someone’s current mental state. It is essentially thinking out loud. Though contextually, one can guess that the accused would be trying to invoke their rights by using this type of speech, it is not always concrete. This constative is not, and should not be allowed to invoke one’s rights. However, if after saying “I think I would like to talk to a lawyer” the accused then adds “Yes, I would like to talk to my lawyer,” the interrogating police officers should immediately cease their questioning and realize the accused has just enacted their Miranda right to have a lawyer present. Though the conditional “would” was used, it is obvious what was implied.

Ignoring conversational implicatures or the Gricean Maxims of Conversation is simply unacceptable. The courts must realize that current sociolinguists rules dictate that using phrases that are not direct commands can have the same meaning and it does not take a linguist to understand that. Children are able to pick up on conversational implicatures and pragmatics and thus so should the courts. Expecting every American citizen to speak in absolute performatives with words like “hereby” and only using direct commands is extremely outmoded. Modern day forensic technology makes it very difficult, if not almost impossible, to get away with any crimes and a direct confession is no longer as important as it once was. Furthermore, the police have no reason to make it impossible to use the Miranda rights given the fact that instillment of these rights did not result in a decrease of convictions.

Learn Your Rights

In order to reduce the amount of failed, or deemed ineffective, attempts to invoke one’s rights, the Miranda warning should be scripted and memorized verbatim. There is no reason why there should be any leniency in this legal speech act, as most other legal performatives are scripted and applied across all states. The scripted warning should be clear and concise, ensuring that all of the accused are informed properly. In addition to the scripted warning, there should be posters hung in the interrogation rooms that inform the accused of their rights to reinforce them. Law enforcement should not be getting any benefit from the ignorance of American citizens. There is no harm in using a simple, informative poster to make sure the accused person knows that he or she is legally allowed to have a lawyer present and that one will be appointed to them for free if they are not able to afford their own attorney.

Works Cited and Linked in this Article:

1. Ainsworth, Janet. “‘You Have the Right to Remain Silent…’ but Only If You Ask for It Just So: The Role of Linguistic Ideology in American Police Interrogation Law.” The International Journal of Speech, Language and the Law 15.1 (2008): n. pag. . Equinox Publishing. Web. 26 Jan. 2016.
2. Egan, Jennifer. “Baltimore State’s Attorney Should Refuse to Use Child Confessions Taken without an Attorney Present.” Baltimoresun.com, Baltimore Sun, 6 Dec. 2019, www.baltimoresun.com/opinion/op-ed/bs-ed-op-1208-mosby-kid-confession-20191206-jsdhcnsocrcrflo7m2hdkygzui-story.html.
3. Green, Mitchell, “Speech Acts”, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/win2017/entries/speech-acts
4. “Grice’s Maxims.” SAS.UPENN.edu, https://www.apa.org/monitor/2014/05/jn
5. “Is Miranda Warning the Same in Every State?” Miranda Warning, www.mirandawarning.org/ismirandawarningthesameineverystate.html.
6. Lakoff, Robin T., and Sachiko Ide. Broadening the Horizon of Linguistic Politeness. Benjamins, 2005.
7. Najdowski, C. J., & Bonventre, C. L. (2014, May). Deception in the interrogation room. Monitor on Psychology, 45(5). http://www.apa.org/monitor/2014/05/jn
8. “Ruling Allows Question Asked before Miranda Warning Given.” The Washington Times, The Washington Times, 19 Mar. 2020, www.washingtontimes.com/news/2020/mar/19/ruling-allows-question-asked-before-miranda-warnin/.