Respecters, Venters, and Know-It-Alls

A few nights ago, I attended a social event that, unlike a lot of my life, was not crawling with other lawyers. So I had the opportunity to experience the wonderful rainbow of popular responses to lawyers. Non-lawyers—my civil procedure professor called them “The Blessed Ones”—generally fall into several different categories: Respecters, Venters, and Know-It-Alls, in order of decreasing frequency.

Respecters come in a variety of flavors, but they share an understanding that lawyering is difficult and respect those of us who do it for a living. Venters also vary. Some are passive-aggressive, leading off their otherwise unbridled criticisms with transparently disingenuous phrases like “I’m not a lawyer but…” Others are bubbling over with seething hatred for lawyers and make no apologies, except to say things like, “Present company excluded, of course,” which is especially meaningless when they are anything less than longtime friends: it’s obviously a sham; what do they know about how I practice?

Which leaves the Know-It-Alls. Sometimes these are people who have dealt with a lot of lawyers, or they have a lawyer in the family, or they have seen a lot of movies or TV shows about lawyers, or whatever, and somehow they believe they have three-quarters of a legal education and all the experience needed to assert legal opinions. Respecters are always pleasant, Venters are usually sympathetic or at least apologetic to individuals, but Know-It-Alls are more troublesome. Many of them are covert Venters, but with an adequate response can generally be herded into the Respecter group, at least for the duration of a single social event, thereby avoiding undue discomfort for everyone involved. (But an attempt to make an adequate response can still be dangerous. See below.)

I briefly encountered a Know-It-All the other night. For some reason, this person mentioned the upcoming trials in Federal District Court of suspected terrorists Khalid Sheikh Mohammed and others. You can have whatever political opinion you like about those trials, but criminal trials in the federal court system are governed by legal rules. If you want to comment on the legal rules, you should know what you are talking about. But this nonlawyer Know-It-All the other night had other ideas and said something like this: “It will be a circus. They will probably say nobody read them their Miranda rights and the judge will let them off.”

Huh?

We were in the middle of a holiday party, so I didn’t want to launch into an educational seminar on Miranda, especially considering how Know-It-Alls often respond to those. Most of them have a long list of grievances against the legal system, many of which are misinformed, but all of which will require detailed explanations of law, history, policy, or all three, to satisfy the Know-It-All. The conversation will often turn into a quiz, where the Know-It-All is just trying to induce the lawyer to say something that will offend the Know-It-All and trigger a temporary transformation into a Venter. (“What do you mean ‘activist judge’ is a meaningless term?” And then you can get to something that starts to sound like the South Park-ean “They took our jobs!“) So an attempt to avoid undue discomfort during a social occasion can actually contribute to causing it.

At any rate, this idea that Miranda is a get-out-of-jail-free card for criminal defendants could not be more wrong. I don’t know where people get this idea, unless they are just of the mindset that criminal defendants (and especially suspected terrorists) have no civil, human, or other rights, and giving them anything, even the modest protections of Miranda, is tantamount to letting murderers—no, terrorists!—coach Little League. But Miranda doesn’t do that.

Here, in a nutshell, is what Miranda means: If the police have you in custody (which basically means they have constrained your freedom of movement) and they interrogate you without first obtaining a knowing and intelligent waiver of your right to remain silent and have counsel present during questioning, then your statement in response to that interrogation can be excluded from the evidence admissible at trial. So unless the entire prosecution case hangs on your statement given during custodial interrogation in the absence of a Miranda waiver, then a failure by the police to “Mirandize” you or “read you your rights” will almost certainly not result in an acquittal. There is usually other evidence that is sufficient to convince a jury that the defendant is guilty beyond a reasonable doubt.

Simple, right? Even so, the popular but absolutely untrue myth of Miranda pervades our culture, leading otherwise intelligent and generally well-informed people to make asinine suggestions, like the one that Khalid Sheikh Mohammed and other suspected terrorists—or anyone—tried in federal court (or state court) will be acquitted for a failure to Mirandize them.

I can’t fault people for being Respecters or Venters. Everybody has different experience that justifies one or the other kind of response to lawyers. But while I would like to say that Know-It-Alls are unforgivable, the fact remains that we in the legal profession have apparently done a piss-poor job of educating the general public about the law, leaving that task instead to wingnuts on talk radio and other promulgators of ill-informed half-truths. Should I have corrected that Know-It-All the other night? Maybe.

During an earlier phase of the conversation that night, I may have lifted this person’s views of criminal defense attorneys by explaining that many of them see their job not as keeping criminals out of prison, but as keeping prosecutors honest. “That never occurred to me,” said the Know-It-All. Maybe I would have had similar good luck with a response to the Miranda remark. But I was tired and not in the mood.

The problems in our legal system run deep and wide. But too many members of the general public don’t even have enough accurate knowledge of how the system actually works to think about those problems intelligently. You might be a Venter, a Respecter, or a Know-It-All, for whatever reasons in your personal experience. But if you are a nonlawyer encountering a lawyer in a social situation, you might try a fourth approach and be a Reasonable Skeptic. Instead of just respecting the lawyer for doing  hard job, or venting against all lawyers, or trying to show that you know lots of legal stuff, too, why not just ask the lawyer what he or she thinks? Most of us will be glad to tell you, especially if you are not asking for personal legal advice about a specific situation.* But be skeptical and ask questions about the legal system. It might be educational. Nobody actually knows all, but you might improve what you do know, and that might keep you from being one of those insufferable Know-It-Alls.

*If you do want personal legal advice about a specific situation, most of us prefer to meet with you in our offices. Just ask for a card and call for an appointment.