Demystifying Miranda

Ken AshfordConstitution, Crime, War on Terrorism/TortureLeave a Comment

You have a right to remain silent. Anything you say can be used against you in a court of law. You have a right to the presence of an attorney. If you cannot afford an attorney, one will be appointed for you.

You know those words.  They are heard on TV screens all the time.  They are the Miranda warnings.

There is a debate going on as to whether Faisal Shahzad, the would-be Times Square bomber, should have been read his Miranda rights.  Some on the right think that by doing so, he will clam up and not give any helpful information about, say, who (if anybody) trained him in Pakistan, etc.

This is silly, and underscores what appears to be a widespread misunderstanding of what Miranda is.

So allow me to present a short primer.

First of all, you have the right to remain silent, etc.  The Miranda warnings don't give you those rights; as an American citizen, you already have them.  And so does Shahzad.  Look at the Bill of Rights if you don't believe me — it's all there in the Fifth and Sixth Amendment.

Now, even the dumbest derelict knows he doesn't have to talk to police under custody, and knows he has a right to a lawyer.  So reading the Miranda warnings isn't telling him something he doesn't already know.

So what is the point of reading those rights to suspects?  Because it allows judges in criminal cases to tell if a person has waived their Fifth Amendment right to incriminate themselves.  In other words, if the suspect has been reminded of the rights he has, and he still chooses to confess guilt to the police, then his confession can be used at trial as evidence against him.

In the landmark case of Miranda v. Arizona in 1966, the Supreme Court ruled that the reading of what became known as "Miranda rights" are necessary if you want to use confessions against a criminal suspect at trial.  They don't give protection to the suspect, because the suspect (as I said) already has those rights.  But giving the warnings to the suspect make it easier to convict him if, after having been read the warnings, he still talks.  In other words, it is a tool to help prosecutors convict.

Put another way, there are no consequences to a criminal suspect if Miranda warnings are not given.  His constitutional rights to remain silent and have a lawyer are the same as they always are.  But failure to give the Miranda warnings makes it harder to convict a criminal suspect, which is why the government willingly does it.

So the law-and-order types who think Miranda makes it harder to convict criminals are simply wrong.

And the concerns that a suspect will "clam up" after being read the warnings, are overblown.  Suspects can "clam up" anyway, warnings or not, and they know that.  But in point of fact, most of them do talk.  Shahzad is.