{"id":136850,"date":"2025-06-10T19:04:51","date_gmt":"2025-06-11T02:04:51","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=136850"},"modified":"2026-09-17T07:10:31","modified_gmt":"2026-09-17T14:10:31","slug":"heres-a-thought-no-more-miranda-gift-bags","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=136850","title":{"rendered":"Here\u2019s a Thought\u2026 No More Miranda Gift Bags"},"content":{"rendered":"

What needs to change?<\/h2>\n

What is wrong with a free Miranda warning?<\/h2>\n

Why do officers over-Mirandize?<\/h2>\n

The purpose of this article is simply to call attention to a pervasive problem in the law enforcement profession. Solutions to the problem can be fleshed out in future discussions. But without adequately demonstrating that a problem exists, discussion about making procedural changes is pointless.<\/p>\n

As a profession, law enforcement officers over-Mirandize. Without question. I call this phenomenon \u201chanding out Miranda gift bags\u201d, free, unearned Miranda warning<\/a>s, given simply for showing up. I think there are two primary reasons why officers hand out Miranda gift bags. First, television. Whenever Elliot and Olivia make an arrest, a Miranda warning invariably soon follows. It\u2019s as if the warning is part and parcel of the arrest; without the warning, the arrest is left unconsummated. Wrong, of course. But the simple fact is, Miranda warnings have long since become part of American culture.<\/p>\n

The second reason, and the more important one within the law enforcement profession, is that officers do it as some sort of a \u201cCYA\u201d endeavor. The Fifth Amendment privilege against compelled self-incrimination, from which the Miranda rule derives, carries with it a textual basis for the exclusion of evidence. The Miranda rule is constitutionally required and therefore, a violation of such carries with it the sanction of inadmissibility (generally) in a subsequent criminal case where the victim of the violation is a defendant. In order to \u201cbe safe\u201d many officers are taught, even required in some cases by policies and regulations, to hand out a Miranda gift bag \u201cjust in case\u201d the person
\nbeing questioned says something self-incriminating that may be useful in a subsequent prosecution.<\/p>\n

I can think of at least three reasons why giving free Miranda warnings is problematic and should be discouraged (or perhaps even disallowed!). First, it could cause a person
\nwho had otherwise been willing to answer an officer\u2019s questions to now elect to not answer any questions. By being reminded of his free-standing right to remain silent, he
\nhas decided to exercise that right. But perhaps had he not been warned, he would have agreed to answer the officer\u2019s questions, potentially furthering the investigation. The
\ngiving of the Miranda gift bag has inhibited effective investigation in this sense. Second, also along the lines of inhibiting effective investigation, a Miranda gift bag
\nfollowed by an invocation of the right to counsel bars any subsequent custodial interrogation<\/a> efforts by any officer during that same period of custody. For example, a
\npatrol officer makes an arrest and then gives a Miranda warning, having no intention of asking any potentially incriminating questions. He just does it because that\u2019s what they
\ndo on television (or worse, because his agency policy needlessly requires all arrestees to be informed of their Miranda rights!). The arrestee tells the officer, \u201cI want a lawyer.\u201d
\nThe officer replies, \u201cI don\u2019t care. I wasn\u2019t planning on asking you any questions anyway.\u201d The officer then transports the arrestee to jail. Waiting at the jail is a detective who has
\nlearned of the arrest and wants to question the arrestee about a different matter than that for which the arrest was made. The Edwards rule (part of the Miranda rule) likely
\nbars the detective from even asking the arrestee if he would be willing to answer the detective\u2019s questions, regardless of whether the detective was aware of the prior
\ninvocation of the right to counsel. Effective investigation once again inhibited by a Miranda gift bag!<\/p>\n

And third, part of the warning is simply not true in a Miranda gift bag scenario. The Miranda gift bag scenario presupposes the person to be questioned is not in \u201ccustody\u201d
\n(a requirement under the Miranda rule). The part of the warning about a right to counsel is not true in that case. A person does not have a Fifth Amendment right to have
\ncounsel present during a non-custodial interrogation. And the government certainly is not going to pay for that lawyer, also contrary to the Miranda warning. The officer in this
\ncase is being less than truthful with the person as to what his constitutional rights actually are. I would think that a police officer misleading a person as to his rights would be frowned upon by society.<\/p>\n

No more Miranda gift bags. No more free Miranda warnings \u201cjust to be safe.\u201d Under the Fifth Amendment, a person must earn a Miranda warning, i.e., do something that
\nrenders him subject to custodial interrogation. No custody, no warning. It really is that simple. (Yes, there is one situation where an out-of-custody should be given a Miranda
\nwarning. And that is where it is given in an attempt to obtain a waiver of the Sixth Amendment<\/a> right to counsel. But that is an infrequent circumstance.)<\/p>\n

Related from Blue to Gold<\/h2>\n