Miranda, you’re getting old

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford one, one will be provided for you.

These 50 or so odd words have entered and affixed themselves into our collective consciousness. There isn’t a set of phrases more ubiquitous and well-known in modern American culture than these so-called “Miranda” warnings. The case that spawned them – Miranda v. Arizona – turns 50 today.

As someone who moved to this country 16 years ago, pop culture taught me these warnings before I’d even learned about the United States Supreme Court and this Miranda decision. Suspect after suspect getting handcuffed by cops, getting pushed into squad cars, with the recitation of the rights fading in over the background music. This is the indelible image of the police procedural in America.

The problem with anything so ingrained in popular culture is that a lot of people know what the warnings are but they don’t understand why. Many view them as pesky “technicalities” that let the “bad guys” get away. They’re just words standing in the way of the Government performing its law enforcement function.

The warnings, of course, are more than words. They are, according to Chief Justice Warren, the “restraints society must observe.” A society that, at the time of the founding, had great experience with the injustices of coerced confessions. As the supreme court wrote in 1896 in Brown v. Walker:

While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition.

The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand.

But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

A society which, at the time of the Miranda decision, had dealt with cases like Brown v. Mississippi in which a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, who was black and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released and he returned with some difficulty to his home, suffering intense pain and agony.

The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the State of Alabama; and while on the way, in that State, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

And so the Miranda warnings were born: not as an opportunity to give the guilty a chance to avoid conviction, but to protect each and every one of us, regardless of guilt or innocence. The warnings, of course, don’t create the rights – they give voice to them. They remind the accuser and the accused that the Constitution protects us all: it protects our absolute right to not incriminate ourselves. It holds that right firm against any tactics that the government may use to bend and overbear our will.

The constitutional foundation underlying Miranda and the privilege against self-incrimination is the respect a government—state or federal— must accord to the dignity and integrity of its citizens.

Miranda, of course, isn’t about protecting criminal defendants and helping the guilty get away with crimes. It is about our collective responsibility in the legal profession to ensure that the rights of every resident of this country are zealously and jealously guarded and protected.

Testing the boundaries of Miranda isn’t limited to whether a defendant gave a confession or not, but rather the circumstances under which such a confession was obtained. Sadly, the news today is littered with stories of people falsely confessing to crimes they didn’t commit and spending decades in prison. And these confessions came about not by force or threat or violence, but by subtle psychological pressures and the desire to please figures of authority.

Going forward, the challenges for judges and lawyers are not only interpreting the effects of various circumstances on the voluntariness of confessions, but also resisting temptation to continue to limit the application of Miranda. Our courts have done a remarkable job of carving out exceptions to Miranda and finding ways to negate its application: whether it be through the dubious parameters of the “public safety exception” or by unrealistically putting the burden on the defendant to unequivocally invoke his right to silence by saying that out loud.

Courst also will have to grapple with its application to emerging technologies. Luddites excepted, most people have smartphones that allow one to lock or unlock using a fingerprint. Courts across the country have started to grapple with the question of whether police can require a suspect to unlock their phones using their fingerprints. Some have said yes, some have said no. How does this square with the protections of the principles enunciated in Miranda? If Miranda was to ensure that no statement was given unless entirely voluntary, then opening or unlocking a phone to give police access to incriminating evidence falls within that realm.

If Miranda’s famous words are to continue to have meaning, they must mean that each and every one of us has the absolute right to remain silent. If our courts refuse to apply Miranda with such strictness, then all we will be left with is a pop culture relic.


N.B.: After the Supreme Court reversed his conviction, Miranda was retried. This time, they didn’t use his confession, but rather the testimony of a woman who claimed he confessed to her. He was convicted and sentenced to 20-30 years in jail. He got out on parole and made a small living autographing police officers’ “Miranda cards.” One day he got into a fight at a bar and was stabbed to death. The suspect in his case was Mirandized and unlike Ernesto Miranda, he invoked his privilege and did not give a statement. Lack of evidence led to the charges against that individual being dropped.