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Public Defense

Lost in Translation

There is an interesting article in the Summer 2008 edition of the Criminal Justice Magazine (Vol. 23/ No. 2) that raises some important points on Miranda warnings. The article discusses ?Myths, Methods, and Model Solutions? to some common Miranda problems.

One myth highlighted by the article was that ?Miranda warnings delivered in Spanish are the same as those delivered in English.? The article cautioned that Miranda translations do not always adequately advise defendants of all of their rights. The article cited State v. Ortez, 178 N.C. App. 236, 631 S.E.2d 188 (N.C. App. 2006), which held that the warning, ?you have the right to solicit an attorney? failed to pass constitutional muster because it did not communicate an unambiguous right to counsel. In other words, Miranda translations need to be scrutinized in every case in which they were used to secure a statement.

Another myth cited in the article was that ?Suspects understand that heeding Miranda warnings isn?t harmful.? The article cited a survey of college students in which almost one-third believed that their silence could be used as incriminating evidence in a future trial. As we know, per Doyle v. Ohio, the invocation of the right to silence or the right to an attorney cannot be used as evidence of guilt (except of course in DUI cases). But apparently, people do not know this. Sarah Johnson, CAD, has suggested to me that defendants might need to be advised of their Doyle rights as part of the Miranda warning. ?You have the right to remain silent. Anything you say can be used in evidence against you. However, your silence, or lack of cooperation, cannot be used to prove your guilt.? This type of warning might help ensure that defendants actually understand their rights when they are being interrogated by police.

Full post as published by Kansas Defenders on July 23, 2008 (boomark / email).