ACM Holding: Omitting “Against You” Won’t Be Held Against You

By: Chris Mincher

When it comes to the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), words matter. Although the law is clear that there is no specific mandatory Miranda language, straying from the traditional mantra raises questions. For example, is the notice that “everything that you say can be used on the court day” the same as “anything you say can be used against you in a court of law”? While the former ultimately passed muster in Alvarez-Garcia v. State, the Appellate Court panel split on the significance of omitting the phrase “against you.”

There aren’t a whole lot of facts to the case worth knowing other than Alvarez-Garcia was given that truncated Miranda warning rather than the typical one, and chose to say some things anyway that he later wished he hadn’t. He moved to suppress, but the circuit court didn’t go for it and ultimately found him guilty.

Alvarez-Garcia appealed with two questions: (1) whether the Miranda warnings were insufficient because they didn’t say his statements could be “used against” him, and (2) whether his Miranda waiver was not “voluntary, knowing, and intelligent” because he was not properly advised of his rights. (There were other asserted grounds underlying these questions but they aren’t interesting enough to discuss here) The majority of the Appellate Court didn’t see reversible error and affirmed.

Acknowledging that whatever Miranda warnings are used must be a “fully effective equivalent” of the traditional ones, the majority reasoned that “everything that you say can be used on the court day” necessarily encompassed a warning that the State could use Alvarez-Garcia’s words to establish his guilt. An easy enough analysis that shut the door on that issue, but it didn’t persuade Judge Raker in dissent.

“Against You” and Not By You

Judge Raker did agree with the majority that “everything that you say can be used on the court day” implied that the defendant’s statements could be used for any purpose, which would include the State using them against him in court. However, she still thought the wording was flawed because it didn’t expressly draw a contrast with the defendant’s possible misunderstanding that his statements could also be used to help his defense.

Judge Raker thought it crucial that a defendant be told that “the statements he makes may be used but not by him and not to his benefit.” This is because, she explained, inculpatory statements by the defendant are admissible pursuant to Md. Rule 5-803(a)(1), but exculpatory statements are inadmissible hearsay. She was afraid that defendants may think that it was a good idea to say things when it isn’t.

“By leaving out the words ‘against you,’” Judge Raker wrote, “the officers implied a right and an incentive that did not exist.” She understood Miranda as not just warning that the State may use defendants’ statements; it’s also intended to warn them that their statements can’t be used to help them either. Citing to State v. Luckett, 413 Md. 360, 380 (2010) — if Miranda warnings “misstate the suspect’s right to silence and counsel, or mislead or confuse the suspect with respect to those rights, then the warnings are constitutionally infirm, rendering any purported waiver of those rights constitutionally defective and requiring suppression of any subsequent statement” — she would have required suppression and reversed.

Constitutional Rights and Hearsay Rules

I certainly understand what Judge Raker is concerned with. Telling a defendant that anything said can be used in court could suggest that his statements are fair game for anyone to use, himself included, which could be an unfortunate thing to misunderstand. Even if her argument is absolutely correct, however, I’m not sure that means the Miranda warnings were misstated.

As both sides agree, “everything that you say can be used on the court day” would include use of the defendants’ comments by the State to prove guilt. If that concept is covered, but includes other misrepresentations about the defendant’s rights, that could be a problem, but a potentially different one than a Miranda insufficiency.

For example, imagine the officer instead said two functionally equivalent things to Alvarez-Garcia: one, “everything you say can be used against you in a court of law,” and also, “telling us what you know could help your defense later on in court.” Clearly that may dupe the defendant into saying something unwise and prejudicial, but that problem seems tangential to Miranda’s purpose.

As I see it, the relevant phrase of Miranda has two parts: the right (“he has the right to remain silent”) and the important consequence of waiving that right (“anything he says can be used against him in a court of law”). Judge Raker takes the position that Miranda isn’t just about use of defendants’ statements against them by the State; it’s also informing defendants that the statements can’t be used for their benefit. But she doesn’t cite anything to back that up, and that seems to read an awful lot into the words “used against.”

The traditional phrasing doesn’t at all touch upon what rights there may or may not be for defendants to use their own beneficial statements. It’s not readily apparent, to me at least, that by warning defendants that their statements can be “used against” them, Miranda is also meant to educate them about the various pitfalls of hearsay rules. Hearsay restrictions and the applicable exemptions vary from state to state, so it’s not even clear Miranda’s guidance in such a manner would be universally true.

Warning Problem or Waiver Problem?

All that said, I do think Judge Raker’s on to something, and I also acknowledge Luckett’s statement that if the Miranda warnings “misstate the suspect’s right to silence … or mislead or confuse the suspect with respect to those rights, then the warnings are constitutionally infirm.” Here, the right to silence was properly stated, and even if omitting the words “used against” was (in light of the hearsay rules) potentially misleading or confusing in some way, it wasn’t misleading or confusing about whether anything he said could be used against him in a court of law — which is the consequence that Miranda is concerned with. The Fifth Amendment “does not require that a criminal suspect know and understand every possible consequence” of waiving the privilege, Colorado v. Spring, 479 U.S. 564, 574 (1987), which would presumably include whatever consequences flow from state hearsay rules.

The issue as I see it isn’t with the Miranda warning given, but with the voluntariness of the Miranda waiver. If a defendant is told, “everything that you say can be used on the court day,” and the defendant responds, “hey, great, get a notepad so my lawyer can tell the jury all that I’m about to say,” that would highly suggest such confusion that the waiver was not a fully knowing and voluntary one. In such an instance, the State would have affirmatively misrepresented what the consequences were of waiving Miranda rights, to the defendant’s prejudice. I would think that would create a strong argument in favor of invalidating the waiver.

Problem is, here, it’s not entirely clear from the opinion that Alvarez-Garcia made that argument — that he waived his Miranda rights and chose to speak because he incorrectly believed he could use his statements in court. Nor is there any indication in the opinion that Alvarez-Garcia ever tried to introduce his statements at trial and was denied on hearsay grounds. Instead, he argued that his waiver was not knowing or voluntary because he was “unaware of what his rights were.” So even if “everything that you say can be used on the court day” might theoretically create a waiver problem, it doesn’t in Alvarez-Garcia’s case. And if police just throw the “against you” wording in there from now on (which seems like a good idea) perhaps it won’t in future cases either.