A colleague of mine recently shared an anecdote that perfectly sums up the ‘myth-conceptions’ our general public has with regards to their constitutional “rights”. Many years ago my colleague was attending a local function with a rather eclectic mix of people. A fellow attendee, one of the women at his table, leaned over to express condolences on the passing of Ernesto Miranda. She voiced praise for his bravery and sadness at, what she perceived to be, the loss caused by his passing. A bit dumbfounded my colleague asked her to continue. In a nutshell, she felt that “his contribution” to our society, through the development of “his” laws, and the protection they provide our citizens was akin to the work of our great civil rights leaders.
In an effort to better explain why my colleague was so baffled by this declaration of appreciation, let’s examine for a moment the history of Ernesto Miranda. Miranda, a private citizen of Arizona, was arrested in 1963 for the armed robbery of a bank worker. He had a previous history of armed robbery, attempted rape, assault and burglary, and upon his arrest confessed to the most recent crime while in custody. He also confessed to additional crimes, of rape and kidnapping, that had occurred just prior to the robbery. He was convicted, but his conviction was overturned by the U.S. Supreme Court, as it was determined he had not fully “understood” his constitutional right not to self-incriminate. This technicality created a second trial, again resulting in a conviction, without the confession. Miranda served 11 years in prison and was killed in a bar fight in 1976.
Now let’s examine what the Miranda rules are, and are not. The Miranda statements are in place to point you to your 5th Amendment protections. When you are in custody, the police must remind you of these constitutional rights before questioning you. This is important because these statements create a boundary between coerced and voluntary statements.
What the Miranda rules do not mean is that the authorities MUST read you the warning in every situation. Arrests can occur without the Miranda warning being recited. For instance if the police do not plan to interrogate you, perhaps if they feel they already have enough evidence against you, they don’t have to remind you of these rights. I suppose they assume 8th grade constitution class took care of that.
Additionally, the Miranda warning does not mean that, even if recited, you can pull a lawyer from a bottle just by asking. Unfortunately television shows today (think Law & Order/CSI/NCIS) do a disservice to the education of our citizens, in allowing every Mike, Harry, and Susie to think they have earned an honorary constitutional law degree. What we see on TV, the angry detective walking from a room as soon as a lawyer is requested, is not really the way life happens. Your request for an attorney is a very smart move, and does mean you can stop talking (which is probably a really good idea). But just because you clam up, does not mean they have to. In fact, a common tactic is to continue to pepper you throughout your silence. Sometimes this will wear a suspect down until they either A) try and drown themselves in their Dixie cup of water or B) develop a bizarre vocal tic and confess to everything from the downing of Amelia Earhart to the death of the Lindbergh baby.
And because the Miranda language isn’t detailed anywhere in the Supreme Court’s documented history, the language can vary. Yes, yes, we know what you see on TV, but trust me- the language can vary as long as it always contains this singular theme:
- Keep your mouth shut (You have the right to remain silent);
- Anything you do say can be used to slap you in the face later (anything you say can be used against you in court);
- You have the right to phone a friend (you have the right to an attorney);
- If you can’t afford a friend, you will be added to the pile of an underpaid and overworked Public Defender (one will be appointed to you free of charge).
Miranda is an often litigated, never settled debate. This issue has continued to haunt the courts, with additional Supreme Court decisions that have weakened the Miranda laws but not overturned them. And, while criminals everywhere may be forever grateful for this helpful reminder, Ernesto Miranda was no hero. Simply put, he unwittingly and unintentionally assisted in the creation of a wormhole that has plagued our justice system for years and allowed for constitutional rights to be clouded in technicalities.
A Lawyer Walks into a Bar 