You Have the Right to Remain Silent and Other Legal Stuff Media Get Wrong

Previously published in Sisters in Crime First Draft, December 1, 2021

The police do not have to give Miranda warnings.

You absolutely do have the right to remain silent. Your right is protected by the Fifth Amendment and there are few rights so jealously guarded by the courts.

But so often media gets the Miranda warnings wrong. The police do not have to Mirandize a suspect at the time of arrest. The police do not have to Mirandize people who voluntarily talk to them.

However if the police do not Mirandize a suspect who is in custody and then interrogates him or her and later tries to introduce the alleged confession into evidence, the accused’s statements will be suppressed, i.e. held inadmissible, because of the failure to give the warning.

Don’t leave town.

What an overused trope! No one can order anyone, witness or a suspect, not to leave town. Americans have a constitutional right to travel where they please. Granted, it might look bad if the cops accuse you of murder and you jump on a plane as soon as they leave. But the only way the authorities can restrict someone’s travel is to arrest them for a committing crime (not for being a material witness) and convince a judge to limit travel if that person is released on bail.

Tangentially, material witnesses are not arrested. They might be subpoenaed, however. If they ignore the subpoena, they may be charged with contempt and then arrested.

There is no such thing as “opening arguments”

I saw this in a headline from a major news site: to wit, that opening arguments would be given the next day. No, they won’t. Because there are no opening arguments. There are opening statements and there are closing arguments.

In opening statements, each attorney is allowed to lay out what the evidence will show. It’s important to keep the statement closely tied to items of evidence otherwise the other attorney will object on the grounds that it is argument. However, it is perfectly acceptable to lay out the evidence in a sequence that is most sympathetic to the client. For instance in a murder case, the prosecution may start with “On the third day of June, John Doe shot Tom Roe to death.” But the defense attorney may open with “On the third day of June, Tom Roe barged into John Doe’s home, pushed him up against a wall and threatened to kill him.” See the difference? No argument – no overt attempt at persuasion, just discussing the admissible evidence in a sequence that tells a story most favorable to your client.

At the end of the case, each party gives closing arguments. That’s when they get to say how they interpret the evidence and why the jury should agree with their case.

Looking forward to exoneration at trial.

No, you’re not. A criminal trial does not exonerate anyone. Neither does a civil trial, for that matter. If the government files charges and the trial ends in an acquittal, all that means is that there was not enough evidence to convict the defendant – it does not mean he didn’t do it. He might be innocent or he might have gotten away with it.  It happens.

In a civil case, the burden of proof is lower than a criminal case but the end result is the same. If the plaintiff loses, it doesn’t mean the defendant didn’t do what the plaintiff accused him of – it means the plaintiff didn’t prove it. Again, maybe the defendant didn’t do it or maybe he got away with it.

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Keenan Powell

Author

Keenan Powell is the Agatha, Lefty, and Silver Falchion nominated author of the Maeve Malloy Mystery series, Deadly Solution, Hemlock Needle, Hell and High Water.

While still in high school, she was one of the illustrators of the original Dungeons and Dragons. Art seemed an impractical pursuit – not an heiress, wouldn’t marry well, hated teaching – so she went to law school instead. When not writing or practicing law, Keenan can be found oil painting, studying the Irish language, or hanging out with her friends at mystery conventions.

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14 comments

  1. I have heard that the “right to remain silent” idea has been spread so much in US films and television that some citizens of countries without such provisions do not realize that it doesn’t apply to them. Such is the power of media.

    Rita

    1. Great question. Exoneration is when a judge rules that the individual is innocent and dismisses the charges. Recent cases are Kevin Strickland and the Groveland Four.

      An acquittal only means there was not enough evidence to convict the defendant. The classic example is OJ Simpson, who was acquitted in his criminal trial, but found liable in the civil case.

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