“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present. If you cannot afford an attorney one will be provided for you free of cost.” When the United States Supreme Court handed down this decision in June 1966 it was a land mark case. The court’s decision sent shock waves through law enforcement communities. Initially the case was perceived by many to be a major victory for criminal defendants. In reality it was a compromise that attempted to balance a suspect’s constitutional rights with society’s interest in preventing and solving crime.
The Legal BackDrop
Two years before its decision in Miranda, the United States Supreme Court issued a decision in a case called Escobedo v. Illinois. Mr. Escobedo was a suspect in a murder investigation. He had been arrested and taken into custody. He asked to speak with a lawyer but law enforcement refused to allow him to speak with an attorney – even though there was an attorney at the jail trying to get into see Mr. Escobedo. Law enforcement failed to warn Mr. Escobedo that he had an absolute constitutional right to remain silent. In this case the Court ruled a suspect has a Sixth Amendment right to counsel.
A young woman was getting off a bus in Phoenix when she was dragged at knife-point to a car. She was tied up, driven to the desert, raped, and returned to a location near her home. The victim provided police with a description of the suspect as well as a partial license plate of his car. The partial license plate matched a vehicle owned by Twila Hoffman, Miranda’s girlfriend. Two officers arrested Miranda and began interrogating him at the local jail. Miranda had an eighth grade eduction, prior prison record, and had been dishonorably discharged from the Army. During the first two hours of his interrogation he denied any involvement. Subsequently he was placed in a line-up [during which the victim correctly identified him] and he gave a written and oral confession.
At trial his lawyer objected to the introduction of Miranda’s confession. That objection was overruled. On appeal, the Arizona Supreme Court ruled the confession was admissible. They distinguished the facts in Miranda from those in Escobedo because Escobedo had affirmatively asked for a lawyer whereas Miranda had not.
The main thrust of the argument in the brief what that cases such as Gideon v. Wainwright [the case that holds an indigent defendant has the right to an attorney at public expense] and other right-to-counsel cases commanded the conclusion that an accused’s right to counsel attaches at the time a person is taken into custody and questioned. Miranda’s lawyers acknowledged that such a system would certainly cost money and potentially result in fewer crimes being solved by confessions but that such a result was required by the constitution. They also argued that the system required by Gideon was meaningless if the right to counsel did not attach earlier in the legal process. Essentially the Gideon line of cases holds an accused is entitled to a lawyer at what later became known as “all critical stages”. They wrote:
There is not the faintest sense in deliberately establishing an elaborate and costly system of counsel – to take effect after it is too late to matter. Yet that is precisely the Miranda case.
Its noteworthy that the briefs in Miranda, at least not the merits briefs, did not argue the Fifth Amendment. Rather the briefs argued the Sixth Amendment. The Fifth Amendment is the right to remain silent and not be required to give evidence against oneself or be punished for refusing to do so.
The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
This is particularly significant because the United States Supreme Court’s decision in Miranda is a Fifth Amendment decision.
The Miranda Decision
The ‘critical stages’ analysis is important to understanding why, in order to reach the conclusion they did, the United States Supreme Court had to make Miranda a Fifth Amendment decision. There is no intellectually honest way to argue that an in-custody police interrogation is not a critical stage of a criminal investigation. Instead the Court said the Sixth Amendment right to counsel was necessary to protect a Fifth Amendment privilege against self-incrimination. The Court refused to characterize the Sixth Amendment as a free standing right – even though it almost certainly is a free standing right.
Miranda is a compromise decision. Advocates for civil rights wanted an expansion of the Sixth Amendment, expansion that likely would have required suspect’s have lawyers prior to being interrogated. Law enforcement advocates wanted the status quo, no warnings to be given to suspects. The decision was authored by then Chief Justice Earl Warren. The Warren Court was focused on defending individual civil rights and liberties, regardless of who the individual was. In the years since, the high court’s focus on civil rights and liberties has shifted. Subsequent supreme courts have ruled that civil rights must yield to the desire to prevent and solve crime.
50 Years Later
The protections afforded by Miranda have been eroding. Statements taken in violation of Miranda can be used by law enforcement to impeach a defendant who testifies at trial, law enforcement does not have to give all the Miranda warnings, and Miranda rights can be implicitly waived by a suspect. That last one is particularly problematic because of how it has been interpreted. In the typical situation a person is contacted by law enforcement, the suspect is given their Miranda warnings, and then the suspect starts talking. The suspect has never expressly waived their right to counsel or said that they wished to speak with law enforcement. In all likelihood the suspect probably has no idea they have just waived their rights.
There are other problems with the application of Miranda, among them is the requirement that law enforcement only has to give Miranda warnings to a suspect who is ‘in custody.’ What does ‘in custody’ mean? This issue has been litigated countless times. Clearly if a person is in jail, in the back of a police car or in handcuffs they’re ‘in custody’. But what about when they’ve been ‘detained’ by law enforcement? If a person is not free to go Miranda applies. But if the detention is brief, such as a traffic stop, Miranda does not apply.
Perhaps the single biggest problem with Miranda is that while the warnings common knowledge in this country and they are regularly given – they are rarely understood. The language and sentence structure of Miranda warnings are challenging for many people to understand. Studies have found that 60 of the words in a standard warning require at least a 10th grade education and 15 of the words require a partial college education. Yet the same set of Miranda warnings are given to juvenile suspects, people from other countries, people with limited education or IQ’s, as well as the visually and hearing impaired who may or may not understand.
Miranda does not explain the rights it intends to protect nor does it explain the ramifications of invoking one’s Miranda rights. In other words, suspects are told they have the right to remain silent. They are not told that their silence cannot be used against them as later evidence of guilt. The warnings do not explain that the right to counsel includes the right to consult in private with a lawyer. The warnings do not explain that a waiver, once given, can be revoked at any time. Lastly, Miranda does not explain the significance of the rights it intends to protect. It does not explain suspects are innocent until proven guilty with proof beyond a reasonable doubt or how waiving their Miranda rights could impact them.
While Miranda was a step in the right direction there has been a back slide in recent years, the civil rights protected by this decision have been and continue to erode in a society that doesn’t prioritize the protection of civil rights and liberties for all our benefit.