In light of this week’s horrific series of events in Boston, I (and many others) have been thinking a lot about what exactly the “Miranda warning”—or more specifically, “being Mirandized”—means.  There are a lot of angles to this, and I will focus on only one. In the interest of full disclosure, I believe that the bar should be set incredibly high for the state, and I support Mirandizing individuals in all circumstances.  (Furthermore, I believe this because I believe that the state properly possesses police powers.  But that’s a different post.)

[Note. Thanks to John Kastellec for very helpfully pointing out that this is actually a current issue before the Court (in another case).  The NYTimes has an editorial on the issue, too. ]

So, much debate has occurred about whether one possesses the “Miranda rights” prior to being Mirandized.  My understanding is that the rights described in the warning are always possessed, and so I will assume this in what follows.  This is not only because I believe this to be the case, but also because assuming otherwise makes the strategic implications of giving or not giving the warning much more powerful and concomitantly less interesting.

Of course, as many have said, it is hard to imagine that anyone does not know their Miranda rights given the fame of the case and the warning’s high profile usage on crime drama shows.  On the other hand, some have pointed out that in times of high stress, individuals do crazy things and/or forget well-known ones.

That said, I want to focus on a potential importance of the issuance of the Miranda warning as a focal point.  It provides a focal point for all people, many of whom may or may not be sure of their ultimate legal liability, to “pool” by shutting/”lawyering” up.  Summarizing the argument below, the “Miranda warning” is equivalent to a publicly known signal of “we’re about to question you with intent to convict you.”  According to this argument, the warning’s importance is not for the defendant in question, but rather for the non-defendants of the future. (This sets aside another very cogent argument that Miranda warnings help remind the police themselves to mind their p’s and q’s, a social good in multiple ways.)

The basic idea of my unraveling argument is this: suppose that every question the police ask you has a probability p>0 of making you recognize some fact that, for simplicity, will implicate you with probability q>0.  (We all have this positive probability, right?)*

If p=1, then Miranda makes no difference.  However, for most/all people, p<1.  Now, suppose that police just start questioning.  Furthermore, suppose that everybody follows the following strategy: answer questions until you suspect that the question might be self-incriminating.  Should you follow that strategy, too?  Be honest until you fear that you shouldn’t answer that question?

Uh-oh.  What should the police infer when you stop answering questions?  Well, obviously they should infer that something in that question they just asked suggested some fact that you believe might incriminate you in a crime/legal quandry.  So, you should stop answering earlier than this point. Of course, you have to do this before “the question in question,” so a simple line of thought points out that, if everyone plays the “answer as long as it seems safe” strategy, YOU should just refuse to answer any questions even before they are asked.

Taken at face value, that “unraveling argument” suggests that Miranda is unnecessary.  Everybody should just lawyer up.  But…we don’t (or shouldn’t) like that world: nobody ever cooperates with police, regardless of p<1 and q>0.  That is, even if the police were asking me innocently if I saw the school bus drive past my house earlier than usual today, I should most definitely stop them at “did you see…” with a “TALK TO MY LAWYER.”

Instead, we would prefer a world that, for sufficiently small q—i.e., worlds where we are very very unlikely to have done anything wrong, people can answer the police’s questions without fear.

THAT’S WHAT MIRANDA DOES: IT TELLS YOU WHEN YOU MIGHT BE IN TROUBLE.  The essence of Miranda is that the police can use spontaneous confessions, etc., but if they bring you into custody and interrogate you with the idea of getting information with which to potentially convict you, they must give you the warning first.  Think of this, for simplicity, as the court saying to police: “if YOU think that q is pretty high—high enough to warrant putting an individual into custody and interrogating them—then you have to offer them the opportunity to stop the questioning before it begins.”

The unraveling argument suggests why, while it might or might not be important to give the Miranda warning per se to Dzhokhar Tsarnaev, it is arguably very important that they at least be required to tell them that they are not giving him the warning.  That is, they notified the people of “the public safety exception.”  They should notify him as well.

Note, even more importantly, that this is not a “defendant-based” civil liberties argument.  That is, this is not about protecting Tsarnaev from self-incrimination.  Rather, it is an argument that, if the police don’t have to do this, then police will be less effective at protecting us because we will all have reason to always decline to answer questions in future situations.

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A side note here: though the 5th Amendment protects one against self-incriminating testimony on the stand, it does not protect you against the police from using your taking the 5th Amendment as a signal as to what/where they should investigate.  In other words (as I understand it), the 5th Amendment is applicable only if the facts at hand would actually incriminate oneself, and therefore is truly applicable only if you actually did something for which you might be punished (or have good reason to believe so).  This is a big difference than Miranda rights, which are ex ante, rather than ex post, rights accorded to all citizens regardless of their legal liability.