“You have the right to remain silent”: Obstacles to understanding the Miranda warning, Part II — Workaround

How often are individuals deprived of their rights because they didn’t really understand the Miranda warning?


In an earlier post, I offered some reasons why the Miranda warning, an 89-word text recited in less than a minute, is so often misunderstood, with the result that defendants give up rights they didn’t know they had.

A summary of the obstacles (many of which occur simultaneously):

  • Contains several complexities in vocabulary, grammatical structure
  • Calls upon analytic/synthetic, appropriate-response (as opposed to interactive) skills.
  • Confuses sequence of events – remain silent, have a lawyer present
  • Depends heavily on knowing the meaning of right and understand
  • Typically delivered in a rapid, perfunctory way that impedes NNSs’ understanding
  • Fear of appearing obtuse or uncooperative influences defendants’/interviewee’s responses

Must do something soon

The reason for the urgency is that under present conditions, the incomprehensibility of the warning and the conditions under which it is used…both contribute to the failure of the interviewee to apprehend the very rights granted by the warning..

Surely, the misuse of the Miranda warning to prevent justice is an urgent matter, so I offer one suggestion for a quick solution.

Prerequisite: Conversational space

In proposing alternatives, we must first consider the conditions under which the warning should be delivered.  Either there is “conversational space,” or there is not.

That is, the warning may be issued in the midst of a contentious arrest, even as the officer tries to subdue the suspect, in which case this flurry of legal language has, in many cases, little hope of being entirely, or even partly understood.

Optimally, the warning should be issued in the calm of an interview room, or at least when the suspect is quietly and calmly seated in the police vehicle, if that is possible.

This is an important precondition: If there is no conversational space, if the officer cannot “take the floor” with the suspect’s attention (assuming no serious drug impairment or the like), and there’s no hope of the warning accomplishing its purpose.

But let’s say we have conversational space, a stable situation where the officer can talk calmly and be heard…and where guided interaction is possible.

Characteristics of The Workaround

Under these circumstances, how might the warning read?  How could it be administered for maximum efficiency?

It must be short and unmistakably clear.  It should test for understanding.  And, omitting for simplicity’s sake all the other things the warning could say, let’s stick to the pragmatics of the Standard version: what it tries to accomplish.

Also, and very importantly, let us not be…

“wedded to the words.”

While many speech-acts (prayers, rituals, some legal pronouncements) must be worded a certain way in order to be binding or performative (i.e., accomplish a specific objective just by being uttered), Miranda is not one of them.

The actual wording of the warning is not codified by law, so there is a legally-valid opportunity for a radical re-write.  From Wikipedia:

The specific language used in the warning varies between jurisdictions, but the warning is deemed adequate as long as the defendant’s rights are properly disclosed such that any waiver of those rights by the defendant is knowing, voluntary, and intelligent [emphasis mine].

The Workaround

In the version that follows, I’ve tried to address all of the obstacles mentioned above, with simplified language that avoids the especially difficult term right.

The nature of government-guaranteed “rights” won’t be understood by NNSs who come from places where they are no such rights.  The term is probably not understood in the legal/constitutional sense by most native speakers, who use it colloquially in the loose sense of an abstract ‘entitlement,’ or ‘justification,’ e.g., You don’t have the right to criticize him.

Below is Miranda 2022, Perlman version

I’m going to ask you some questions, but first I have to tell you three important things.

FIRST…You do not have to answer any of my questions if you don’t want to.  You don’t have to speak to me at all.

SECOND: When I am asking questions, you can have a lawyer, friend, or someone else there to help you.  If you can’t pay for a lawyer, we will get a lawyer for you, and we will pay him.

THIRD: We will be recording or writing down everything you say to us.  So IF your case goes to court –IF there is a trial — we can take anything you said and play it back it in court, if we think it will help us.

Now I will say it all again.   I want to make sure you really understand it.

FIRST: You don’t have to answer my questions or talk to me.

(What does that mean to you?)

SECOND: If you talk to me, you can have a lawyer or friend there to help you.

(What does that mean to you?)

(THIRD): We can take anything you say and use it against you in court. 

(What does that mean to you?)

The interactive repetition/comprehension test suggests that if the person can repeat these simple propositions, even with coaching, then the aims of the warning will likely be fulfilled.

Of this version, I would say that in addition to avoiding all the problems mentioned above, it deliberately builds in redundancy with repetition.  Also, the phrase use against you is explained beforehand.

Not “wedded to the words”

As  mentioned, I am not “wedded to the words” – but to the result, which is that the interviewee understand, with a CALP level of understanding, the two things he/she can do – not answer and have a lawyer – and one thing he/she must watch out for – his speech being recorded and later played back in court.

“Not wedded to the words” also means that as long as the purpose of the text is accomplished (as verified by the repetition test), individuals may tweak the wording.

I am not insisting on verbatim use of the Workaround.  Uniformity of phraseology is not the goal; the goal is practical understanding and appropriate action.

Changing the balance

As currently used and in the contexts I described, the warning is probably misunderstood as often as it is understood, at least judging by the frequency with which its “rights” are not invoked (I base this statement on Shuy’s long – and my relatively brief — experience).  It thus works in favor of law enforcement.

But when the warning is this transparent to a wide range of native and non-native speakers with varying English comprehension, there is every possibility that the balance will shift towards the suspect – “you mean I don’t have to talk to you at all?” – and that the purpose of the warning will actually be served.

They were warned!

I don’t doubt that some suspects may even pass the repetition test and still go on to reveal inculpatory information.  But they can’t say they weren’t warned.