How Do You Fix a Miranda Mistake?

Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat from the studio. An officer wrote in after realizing mid-case that there was never a valid waiver in place. Anthony separates the two kinds of Miranda violation, then walks the factors courts use to decide whether the taint got cleansed.

Hello guys, and welcome to another roadside chat from the studio. So today’s question is, how do you fix a Miranda violation?

Now first of all, Miranda violations come in two flavors: intentional and unintentional.

What does an intentional Miranda violation look like?

An intentional Miranda violation, of course, is just like it sounds. When an officer intentionally plays loose and fast with the Miranda rules in order to get more confessions.

It often looks like this. An officer will interview an in-custody suspect without Miranda, so Miranda would be required, get them to talk about the crime, maybe confess, maybe give admissions. Then do something like this: oh, you know what, I forgot to give you Miranda. You have the right to remain silent, blah blah blah. Okay, you understand those rights? Okay, cool. Hey, so what happened again?

And then the suspect, thinking that the cat is out of the bag, just repeats the same story. And that’s the confession that the officer uses.

Now if this sounds shady, it’s because it is. There’s no way that you’re going to be able to use any of those confessions, before or after. And if the suspect found out that you did that, he can turn around and sue you for a civil rights violation, and he deserves every penny. Because that is just not the way we work.

What about an honest mistake?

Now an unintentional violation happens to everybody. At one point in time or more, you’re going to make a Miranda mistake. Why? Because it’s an honest mistake.

So for example, you thought that the person was Mirandized but they weren’t. You gave a Miranda warning but it was defective for one reason or another. It happens to the best of us.

So how do you fix those violations?

What does it mean to “cleanse” a Miranda violation?

Here’s how. The court wants to see that you cleansed the Miranda violation. That’s the word that they used. Cleansed.

And how do you cleanse this? Well, there are certain factors that will come in to determine whether or not it’s been cleansed, so that it no longer has the initial unlawful taint. I know you’re probably thinking some jokes right now, but I can’t go there.

Does letting time pass help?

Elapsed time. You interviewed them at 9:00 a.m., you had an improper Miranda, or you thought that they were Mirandized but you come to find out that they weren’t properly Mirandized. Let some time go by. Maybe a couple hours.

Does moving to a different location help?

Different location. The interview occurred on scene, you made a mistake, you’re like, okay, now let’s wait to re-interview them at the station. That will help you. That will also give you some time. But also, a different location mentally helps the suspect not feel that the cat is out of the bag type mentality.

Should a different officer do the second interview?

Different officer. If I’m the one that interviewed the person originally and they gave me a confession, well, let’s have another officer re-approach the suspect and get a valid Miranda waiver, and so forth. Because psychologically, from the suspect’s point of view, he does not feel the same as the cat out of the bag type of philosophy.

Should you tell the suspect the first statement can’t be used?

Telling the suspect that the previous statements cannot be used. Now these are all factors. You do not need to do all of these. You can do a few and be okay. It’s going to depend on the severity of the violation and so forth.

But this is going to be one of those factors that is great if you can do it. And then the person will be like, okay, you can’t use that previous statement, and they’ll still talk to you. That would be great.

But it’s also one of those factors that in the real world, a person may shut down on you after they learn that you cannot use their confession.

What if the original waiver itself was defective?

And finally, a fresh waiver, if the original waiver was defective.

So for example, you’re reading Miranda to a person, they cut you off and say, look, I know my rights, I’ve been arrested ten times, I want to speak with you. Some newer officers will take that as a valid waiver and start interviewing them. But if you’ve been to my classes, or you’ve been through this before, you know that you need to read Miranda in its entirety in order to effectively prove that they gave a valid waiver. So that would be a violation, and we want to of course fix the original waiver.

And also, even if you had a seemingly valid reading of the waiver, we still want to do it again if we can. Especially if it’s also in writing.

So what went wrong in this officer’s case?

So those are the factors. The officer asked me a question where what happened was, the officer realized that there was not a waiver in place, so gave him the waiver and just picked up again and re-interviewed again.

So none of those cleansing factors seemed to be in place with that scenario. There was no new location, new officer, time, telling the person that the statements can’t be used, and so forth. So that is going to hurt the officers in that situation.

So we want to do something proactive to cleanse the unintentional violation.

The short version

• Miranda violations come in two flavors, intentional and unintentional.
• Intentional ones are the deliberate question-first, warn-later play. There’s no way you’re going to be able to use any of those confessions, before or after, and the suspect can sue you.
• Unintentional violations happen to everybody. At one point in time or more, you’re going to make a Miranda mistake.
• The court wants to see that you cleansed the violation. That’s the word that they used.
• The factors: elapsed time, different location, different officer, telling the suspect the previous statements cannot be used, and a fresh waiver.
• You do not need to do all of these. You can do a few and be okay. It’s going to depend on the severity of the violation.
• Read Miranda in its entirety, even when the suspect cuts you off and says he knows his rights. Especially get it in writing.
• Re-warning and just picking up where you left off is not cleansing. None of those factors are in place.

There it is. I hope I move the ball forward.

Related from Blue to Gold

• When Is Miranda Required?
• Acknowledgement of Understanding Miranda
• Can You Mix Small Talk Into Miranda Warnings?

This article is an edited transcript of Roadside Chat Ep. #42. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.