Heard Jeffrey Toobin explaining Miranda to CNN’s Wolf Blitzer last night on the tube, and my head exploded. Sometimes a quick press of the record button, followed by several rewinds and I end up with an informal transcript of something an expert TV commentator said which ends up on my blog, but not this time. Wasn’t quick enough with the TiVo remote.

But no matter, CNN, being justifiably proud of its expert, has posted it online. Blitzer asked Toobin to “explain to our viewers about the Miranda rights” to which the expert replied:

The Miranda rule says nothing you say can be used against you in court unless you first have been read your Miranda rights.

That doesn’t mean that the police can’t use the information, that they can’t follow leads, that they can’t go get search warrants, that they can’t use the information that they give you before you get your Miranda warnings.

It just means that if you go to trial, information cannot be used against you.

Now, once he did receive his Miranda rights and the statements that he made afterwards, those certainly would be used against him if he goes to trial.

Of course, as every not-on-TV-because-I’m-too-busy-in-the-actual-courtroom criminal defense attorney knows, Miranda only applies to custodial interrogation, and Toobin’s explanation completely fails to touch on two separate issues, namely: (a) custody and (b) interrogation. Granted, the whole discussion is in the context of Faisal Shahzad, who was already in custody, and presumably being interrogated, yet it’s a slip shod explanation.

The Miranda and everything-else-related-to-Shahzad case and controversy is covered more substantively in the criminal defense blogosphere elsewhere, inter alia: here, here, here, here and here. Now back to my beef with Toobin’s so called explanation…

What Toobin leaves out, the custody part, and the interrogation part, is exactly the portion of Miranda that 99% of the public misunderstands. If you’ve been in the same room as a TV since Kojak first aired, you already know the “You have a right to remain silent, anything you say can and will be used” spiel. But it’s the what you don’t part that might hurt you. Or, perhaps, if you wanted to be a decent TV analyst, the part of Miranda that folks don’t know is the part that needs explanation.

All sorts of things you say can be used against you in court, without the need of a Miranda warning. In fact, since most cases involve a police investigation and then an arrest, and then no more investigation after the arrest… Miranda is completely inapplicable. In the majority of criminal cases.

The police make sure of it. If there’s ever a need to question a suspect, they just invite him on down to the police station. Have him spill his guts. Then they let him walk out of the lion’s den, and go prepare the warrant. Tada – not custody.

Also, interrogation is an important component. Basically, it has to be in response to questioning. If, for example, Shahzad is volunteering the information (“Now that you’ve arrested me, let me tell you my entire plan” – like a villain leaving James Bond hopelessly tied to an automatic death machine that doesn’t work) then it might be custody, but not necessarily interrogation.

I know I’ll spend the rest of my career explaining to DWI clients (for example, although they do seem to bring it up quite a lot) why it doesn’t help that they “never read me my rights”. The fault lies squarely with those who continue to perpetuate the myth that “nothing you say can be used against you in court unless you first have been read your Miranda rights”. Thanks a lot Toobin.