What People Get Wrong about Their Miranda Rights

One common mistake from real life, Tana French's In the Woods, and Stephen King's Mr. Mercedes and Finders Keepers

Tana French and Stephen King are amazing storytellers, but some of their characters get a crucial legal principle wrong, just like many people in real life do.  People think they know their Miranda rights based on what they have seen on TV, but many do not know how Miranda actually works, sometimes with disastrous consequences. 

One fascinating study of college students and people in jail found lots of misconceptions about your rights in the criminal-justice system:

• About 30 percent believed that their silence could be used against them (it cannot). 

• About half or more believed that police cannot lie during an interview (they can).

• And more than half believed that you only have Miranda rights if you are in custody (you always have Miranda rights). 

One key point that people often get wrong is when police have to advise you of your Miranda rights.  And it’s not when some of the characters in Tana French’s Dublin Murder Squad books and Stephen King’s Bill Hodges trilogy think it is.

Major spoilers below for “In the Woods,” minor spoilers below for “Mr. Mercedes” and “Finders Keepers.”

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Tana French’s In the Woods focuses on two detectives trying to solve the murder of a 12-year-old girl.  The detectives eventually learn that Katharine was murdered by a man who confesses that he had conspired with the victim’s older sister Rosalind to do the crime.

Detective Cassie Maddox talks to Rosalind during a walk outside, using a pretext to begin the talk and to try get a confession.  Once Maddox gets Rosalind to begin admitting her involvement in the murder, Maddox gives Rosalind a caution (Ireland’s equivalent of the Miranda warning used in the United States):

“If you keep talking,” Cassie snapped, too loudly, “I’m going to caution you.  Otherwise –“ …

“So,” Rosalind resumed.  “I decided the best thing would be to show Katy that she wasn’t really anything that special.  She certainly wasn’t very intelligent.  When I gave her something to –“

“You are not obliged to say anything unless you wish to do so,” Cassie broke in, her voice shaking wildly, “but anything you say will be taken down in writing and may be used in evidence.”

Rosalind pauses for a long time, but Maddox manages to get the conversation back on track and gets Rosalind to admit her involvement in the murder.  Maddox then arrests Rosalind on suspicion of murdering Katharine, and the police bring Rosalind to the station. 

And then the investigation falls apart with one question by Rosalind: “Don’t minors have the right to have a parent or a guardian present during an interview?”

The detectives check Rosalind’s age and discover that she is 17 years old, a few weeks short of her 18^th birthday:

“Inadmissible,” [Maddox] said.  “Every fucking word.”

Without the confession, the case against Rosalind is weak and falls apart.  But in real life, Rosalind’s confession is not as flawed as the book recounts and probably would have been admissible, at least in the United States.

Throughout the United States, police give Miranda warnings to suspects, saying that they have the right to remain silent and the right to counsel.  Many other countries use similar types of warnings, as the Library of Congress cataloged in a 2006 report.  Ireland, specifically, uses a “verbal caution” like the one that Detective Maddox recited to Rosalind.

The key issue is when police have to give these warnings and cautions.

In the United States, police have to give Miranda warnings only when a person is custody.  Someone is in “custody” when a reasonable person would believe that he or she was not free to stop talking with police and simply walk away, such as when a person is arrested.  Ireland, similarly, requires that the caution be given when a person is arrested.

The United States and Ireland do not require that a person be warned or cautioned when they are not in custody, even if the police believe that the person is a suspect.  Detective Maddox had not arrested Rosalind, they were talking in a public setting, and Rosalind was free to stop the conversation and leave at anytime.  Accordingly, Detective Maddox did not have to give Rosalind a caution, and Rosalind’s confession should have been admissible even if no caution had been given.

What about Rosalind being a minor who was interviewed without a parent being notified and present?  In the United States, at least, Rosalind’s confession probably still would have been admissible because she had not been in custody.  In the federal courts, law enforcement agents are required to notify parents when a juvenile is detained, but they are not required to notify parents prior to interviewing a minor suspect.  Similarly, many states do require parental notification for a custodial interview, but a survey in 2000 found that most states do not require parental notification for a non-custodial interview.

The timing of Miranda warnings also comes up in Stephen King’s excellent Bill Hodges trilogy.  In both books, characters refer to when Miranda warnings should be given, and the characters get it wrong both times.

In Mr. Mercedes, Bill is secretly investigating a cold case and withholding evidence from his old partner, who starts to suspect what Bill is doing.  “I want to interview you again this afternoon,” Bill’s partner says.  “And this time I may have to read you the words.” 

In reality, Bill’s partner would only have to read the words to Bill if Bill was in custody, not just because he was suspected of a crime. 

In Finders Keepers, Bill is a private investigator and tries to reassure a teenager that nothing the teenager says can be used against him:  “Even if I was still a cop, this conversation would be inadmissible in court.  You’re a minor, and there’s no responsible present to counsel you.  In addition, I never gave you the words – the Miranda warning.”

In reality, the teenager in Finders Keepers would only have to be read the words if he was detained by a police officer, not just because he agreed to talk to a private detective or was suspected of a crime.  

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Why does this matter?  It matters because people should always be careful about talking to law enforcement, whatever the circumstances, whether or not police have said “the words” or cautioned you.  What you say can be held against you, and a mistake or misstep in what you say can get you in trouble that you could have avoided otherwise. 

I’ve practiced criminal law for more than 15 years, and I’ve seen innocent people get prosecuted in part for things they said when they should have invoked their rights to silence and counsel.  Once, back when I was a prosecutor, I took over a case with an alleged “confession,” but I suspected it was more like the “confession” in My Cousin Vinny.  I investigated this, confirmed my suspicions, and dismissed the case.  Fortunately, the defendant had not been in jail while the charge was hanging over her head.

If you are approached by law enforcement, the safest answer is probably something like: “I’m willing to cooperate but want to consult with a lawyer first.”  That should shut down the inquiry and protect you while being somewhat polite.

One final thing about Miranda!  Another big misconception is that all Miranda warnings are the same.  The basic concepts were set out by the U.S. Supreme Court, but there are actually hundreds of variations used around the country.  For what it’s worth, here is my take on what a good Miranda warning would look like:

• You have the right to remain silent. 

  • If you choose to remain silent, your silence cannot be used against you in a criminal trial or case. 

  • If you choose to speak, anything you say could be used against you later, so it’s important to be as accurate and truthful as possible.  

• You have the right to counsel. 

  • You can consult with a lawyer before answering any questions.

  • You can have a lawyer present with you while answering any questions.

  • You can seek a court-appointed lawyer at no cost if you cannot afford to hire a lawyer. 

  • If you say “I want a lawyer,” law-enforcement cannot ask any questions until you consult with a lawyer.

• If you choose to waive your rights, you can re-assert your rights later, but you cannot take back anything that you have said.

There is more that I would advise in a perfect setting, but I hope this helps!

Sources:  The 2010 study mentioned at the top is “Everyone Knows Their Miranda Rights: Implicit Assumptions and Conflicting Evidence, by Richard Rogers, Jill E. Rogstad, Nathan D. Gillard, Eric Y. Drogin, Hayley L. Blackwood, and Daniel W. Shuman.  Information about the hundreds of different Miranda warnings in use can be found here. I am not a lawyer in Ireland, but have consulted some books, including Irish Criminal Justice: Theory, Process and Procedure, by Vicky Conway, Yvonne Daly and Jennifer Schweppe.  One useful case regarding Ohio law is In re Watson, 47 Ohio St.32 86 (Ohio 1989), in which the Ohio Supreme Court rejected the idea of requiring parental notification before the custodial interrogation of a minor.  Thanks to Dr. Eric Drogin for talking with me about this important topic!

About the Author: I was a federal prosecutor in Chicago for 11 years (2008 to early 2019) and am now a solo practitioner focusing on health care fraud, data analytics, and white-collar criminal defense. Before becoming a lawyer, I was a reporter for the Chicago Tribune.  I occasionally assist mystery writers with legal questions;  happy to help if you need any!