“You have the right to remain silent.” We hear it on television, in the movies, and in music lyrics. The Miranda warnings have become so embedded in routine police practices that they have become a part of our national culture. Yet, they remain controversial. The Miranda rule was intended to protect against coerced confessions but has been criticized for tying the hands of law enforcement and favoring criminals. Moreover, some argue that it provides a method by which a guilty person can go free.
Shortly after ruling that the Fifth Amendment privilege against self-incrimination was applicable to the states (Miranda v. Arizona 1966), the U.S. Supreme Court ruled in the 1966 landmark case of Miranda v. Arizona that a person in police custody must be informed of his or her constitutional right against self-incrimination before being questioned. Without the Miranda warnings, any statement given during a custodial interrogation is not admissible in court proceedings. The Court stated that “[t]he prosecution may not use statements . . . stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination” (Brown v. Mississippi 1936). The Court explained that the Miranda rule goes to the root of the “concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime” (Brown v. Mississippi 1936).
II. Key Legal Cases
III. Miranda and Terrorism
During the early 20th century, the Supreme Court applied a due process voluntariness test, rooted in common law (Leyra v. Denno 1954), to determine the admissibility of a suspect’s confession. The due process test weighs all the surrounding circumstances, including the details of the interrogation and the characteristics of the detainee. Early cases explained that the use of physical brutality and psychological pressure violate due process rights by overcoming a detainee’s will.
While voluntariness has remained a requirement for confessions, the Court changed its focus in the 1960s. In 1964, the Court decided two landmark cases. In Malloy v. Hogan, the Court applied the Fifth Amendment’s self-incrimination clause to the states, and in Escobedo v. Illinois, the Court ruled that the police violated the detainee’s right to counsel because they did not advise him of his constitutional privilege to remain silent or his right to consult with his attorney. As a result, his statements were inadmissible.
Two years later, the Supreme Court decided Miranda v. Arizona, in which the Court remarked that reliance on the traditional totality of the circumstances test was inadequate to insure that a custodial confession would be voluntary. The Court noted that custodial police interrogation, by its very nature, isolates and pressures the individual. Because of this inherent compulsion in custodial surroundings, the Court presumed that all statements given during custodial police interrogation are compelled unless the detainee is informed of his or her right to remain silent and to have an attorney present during the interrogation and then knowingly and voluntarily waives those rights. The coercion inherent in custodial interrogations blurs the line between involuntary and voluntary statements, thereby increasing the risk that an individual will not be guaranteed his or her constitutional privilege against self-incrimination.
To ensure that police interrogation conforms to the Fifth Amendment requirements, the Court established concrete constitutional guidelines for law enforcement agencies and the courts. Under those guidelines, the admissibility of a statement given during custodial interrogation depends on whether the police provided the detainee with procedural safeguards sufficient to secure the Constitution’s privilege against self-incrimination. The police must inform the detainee that he or she has the right to remain silent, that any statement he or she makes can be used against him or her in a court of law, that he or she has the right to the presence of an attorney, and that if he or she cannot afford an attorney, one will be appointed prior to any questioning.
Key Legal Cases
Since the Miranda decision, the Court has clarified, narrowed, and reinforced the Miranda rule. One significant issue clarified is when custody occurs. Custody does not necessarily mean a formal arrest. Instead, it is based on how a reasonable person in the detainee’s situation would perceive his or her freedom to leave (Michigan v. Mosley, 1975). A person is in custody when the police have exerted physical or psychological authority so that a reasonable person would not believe that she or he was free to leave. In Thompson v. Keohane ((1981), the Court described the Miranda custody test as follows: “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.”
Custody, however, is not the only issue clarified by the Court. Miranda warnings are required only before a detainee is interrogated. If the police do not question the detainee, no Miranda warnings are needed. Moreover, standard booking questions, such as name, date of birth, and address, are allowed without Miranda warnings.
The Court has given direction to law enforcement on what actions must be taken if the detainee invokes the right to silence or to an attorney. Pursuant to Michigan v. Mosley (1984), if the detainee indicates that he or she does not want to be interrogated, the police must immediately stop the questioning. However, the police may resume the interrogation after a significant period of time has passed and a new set of Miranda warnings is given.
In contrast, Edwards v. Arizona ((1971), established a bright-line rule that once a person in custody asserts her or his right to an attorney, the interrogation must end until an attorney is present. If the police subsequently initiate a discussion in the absence of an attorney, the detainee’s statements are presumed involuntary even if he or she signs a waiver. An exception to this rule exists if either the detainee or the police ask a question relating to routine incidents of the custodial relationship (e.g., food, water, etc.) because it does not represent a desire to open up a more generalized discussion related directly or indirectly to the investigation.
Moreover, a detainee may subsequently waive the right to have an attorney present after he or she has invoked his or her right by reopening the dialogue with the authorities. It must be shown that the accused initiated the conversation in a manner indicating a desire and willingness to open a generalized discussion about the investigation. There must then be a knowing and intelligent waiver of his or her right to counsel’s presence during questioning. Any waiver must be unbadgered, which depends on the particular facts and circumstances of each case.
There has been some confusion over whether the police must provide an attorney if the detainee requests one but cannot afford to pay for that attorney. The Miranda rule does not require that a lawyer be present at all times to advise detainees in the police station. Instead, it prescribes only that the police may not question the detainee without an attorney present if the detainee has invoked his or her right to counsel. In other words, if the detainee cannot afford to pay for an attorney but requests counsel, the police cannot question him or her unless they provide an attorney before any questioning occurs. There is no requirement that the police provide an attorney if no interrogation is conducted.
Public criticism of the Miranda warnings has led to a weakening of its requirements. Since the early 1970s, the Supreme Court has created numerous exceptions to the Miranda warnings, resulting in many un-Mirandized statements being legally admitted into evidence.
A narrow public safety exception was created in New York v. Quarles (2004). If public safety merits, the police officer may ask reasonable questions to secure his or her own safety or the safety of the public prior to the Miranda warnings without jeopardizing the admissibility of the statement. An example of a proper public safety question is to ask the detainee about the location of an abandoned weapon. Similarly, under the so-called stop-and-identify exception, an officer may ask a suspect his or her name and address without providing Miranda warnings.
Another exception was established in Harris v. New York ((1976), which allowed a detainee’s un-Mirandized custodial statements to be used to impeach his credibility during his trial testimony. Because the detainee did not claim that his prior inconsistent statements were coerced or involuntary, the Court explained, they were admissible because the Miranda rule was not a license for the defendant to use perjury.
In addition to carving out exceptions to the Miranda rule, the Supreme Court has also reinforced the rule. In Missouri v. Seibert (2004), the Court struck down the police technique of giving the Miranda warnings only after a detainee had made an incriminating statement. Police officers were interrogating a detainee without Miranda warnings until he or she gave an incriminating statement. At that point, the officer would inform the detainee of his or her constitutional rights, obtain a waiver of those rights, and have the detainee repeat the statement. The Court declared that this type of coordinated and continuing interrogation is improper because it is likely to mislead the detainee. Further, in Doyle v. Ohio (1976), the Court ruled that the prosecution could not comment at trial on a detainee’s silence after Miranda warnings are given. The Court explained that using a detainee’s silence to impeach him or her at trial would be fundamentally unfair and a deprivation of due process rights.
In 2000, the Court reaffirmed the Miranda opinion in Dickerson v. United States. Relying on the rule of stare decisis, or the principle of precedent, the Court reaffirmed Miranda v. Arizona despite its recognition that the Miranda rule may allow a guilty defendant to go free if incriminating statements are excluded at trial. The Court held that Miranda is a constitutional rule that has become so embedded in routine police practices that it has become a part of our national culture. The Court rejected the argument that the Miranda rule ties the hands of law enforcement and the courts. It declared that the police have adjusted their practices to the rule’s requirements as its meaning has become clear by Supreme Court cases subsequent to Miranda v. Arizona. The Court concluded that those cases “have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case” (Dickerson v. United States 2000 [italics in original]).
Miranda and Terrorism
Miranda holds as the law of the land insofar as civilian courts are concerned. In the case of suspected terrorists, however, where the assumption is that military tribunals will be employed, Miranda warnings do not apply. Under the administration of George W. Bush, terrorist suspects, such as those detained at the U.S. facility in Guantanamo, were not Mirandized. The intention was to subject the detainees to military trials. By 2009, with Guantanamo scheduled to close (albeit later than planned), some commentators noted that the absence of Miranda warnings in these cases limited U.S. prosecutors’ abilities to try them—at least under any civilian jurisdictions. At a minimum, such cases raised legal questions, thus opening the door for possible challenges down the road. Initially, therefore, the incoming Obama administration sought to cover its bases by Mirandizing all new terrorist suspects (including the “Christmas Day bomber,” Umar Farouk Abdulmutallab). Following the attempted car-bombing of Times Square in May 2010 (by Faisal Shahzad), however, the administration announced that it would no longer Mirandize terrorist suspects and would most likely pursue military justice in these cases (Perez 2009; Savage 2010).
There was an intense political reaction following the Miranda decision. Law enforcement and prosecutors argued that it was a major blow to their ability to solve crimes; political officials argued that criminals would go free. Eventually, its acceptance grew. Since Miranda v. Arizona has been upheld as a constitutional decision, the debate seems to be closed—at least in the case of civilian courts. The Court has reinforced the principle that detainees will be protected by the Fifth Amendment but has not foreclosed the possibility that further exceptions to the Miranda rule will be established in the future.
Jo-Ann Della Giustina
- Brown v. Mississippi, 297 U.S. 278 (1936).
- Dickerson v. United States, 530 U.S. 428 (2000).
- Doyle v. Ohio, 426 U.S. 610 (1976).
- Edwards v. Arizona, 401 U.S. 222 (1971).
- Escobido v. Illinois, 378 U.S. 478 (1964).
- Harris v. New York, 426 U.S. 610 (1976).
- Leyra v. Denno, 347 U.S. 556 (1954).
- Malloy v. Hogan, 378 U.S. 1 (1964).
- Michigan v. Mosley, 423 U.S. 96 (1975).
- Miranda v. Arizona, 384 U.S. 436 (1996).
- Missouri v. Seibert, 543 U.S. 600 (2004).
- New York v. Quarles, 542 U.S. 600 (2004) and 542 U.S. 177 (2004).
- Th ompson v. Keohane, 451 U.S. 477 (1981).
- Yarborough v. Alvarado, 541 U.S. 652 (2004).
- Dershowitz, Alan M., Shouting Fire: Civil Liberties in a Turbulent Age. Boston: Little, Brown, 2002. Perez, Evan, “Miranda Issues Cloud Gitmo Cases.” Wall Street Journal ( June 12, 2009). http://online.wsj.com/article/SB124476465967008335.html
- Rotunda, Kyndra Miller, Honor Bound: Inside the Guantanamo Trials. Durham, NC: Carolina Academic Press, 2008.
- Savage, Charlie, “Administration Supports Limits on Miranda Rule.” New York Times (May 10, 2010): A1.
- Stuart, Gary L., Miranda: The Story of America’s Right to Remain Silent. Tucson: University of Arizona Press, 2004.
- White, Welsh S., Miranda’s Waning Protections. Ann Arbor: University of Michigan Press, 2001.
- Wrightsman, Lawrence S., and Mary L. Pittman, The Miranda Ruling: Its Past, Present, and Future. New York: Oxford University Press, 2010.