miranda

The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect's Fifth Amendment right to avoid coercive self-incrimination (see right to silence). However, since its creation by the Warren Court, the Supreme Court has indicated that the Miranda decision imposes "prophylactic" or preventative safeguards rather than protections mandated by the Fifth Amendment privilege.

Miranda v. Arizona

Main article: Miranda v. Arizona

In 1963, Ernesto Miranda was arrested for kidnapping and rape, which he confessed to with no warning of his constitutional right to silence, or his right to have an attorney present. At trial, prosecutors offered only his confession as evidence and he was convicted. The Supreme Court ruled (Miranda v. Arizona, 384 U.S. 436 (1966)) that Miranda was intimidated by the interrogation and that he did not understand his right not to incriminate himself or his right to counsel. On this basis, they overturned his conviction. Miranda was later convicted in a new trial, with witnesses testifying against him and other evidence presented. He served 11 years.

In 2000, the issue of Miranda rights came up before the Supreme Court once again (Dickerson v. United States, 530 U.S. 428 (2000)). The justices re-affirmed the role of the earlier precedent. [1]

Miranda rights

The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, they did set down a set of guidelines which must be followed. The ruling states:

...The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with an attorney and to have that attorney present during interrogation, and that, if he is indigent, an attorney will be provided at no cost to represent him.

As a result, American English has acquired the verb Mirandize, meaning to read to a suspect his or her Miranda rights (when that suspect is taken into custody for the purpose of interrogation).

Typical Miranda warning

Though every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when they are arrested, the typical warning is as follows:

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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. An arrestee's silence is not a waiver. Evidence has been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.

Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.

The right of a juvenile to remain silent without his or her parent or guardian present is provided in some jurisdictions.

Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:

We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.

Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989).

California, Texas, New York, Florida, Illinois, North Carolina, and Pennsylvania also add the following questions:

Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?

A "yes" answer to both completes the waiver. A "no" to either invokes the right.

Under the Uniform Code of Military Justice, Article 31 provides for the right against self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it. Other services likely have similar forms.

It has been discussed if a Miranda warning - if spoken or in writing - could be appropriately given to disabled persons like deaf ones or people with only an elementary education because "constitutional" or "the right to remain silent" do not convey any meaning to such people; the content of a Miranda warning can be understood by a 6th to 8th grade pupil while only 10 to 15 percent of the prelingually deaf people have been found to be that competent. Police departments have been advised not to say Miranda warnings to deaf people if a lawyer is not present; and videotaping both the Miranda warning and their waiver has also been suggested (from McCay Vernon et al.: "Deaf Murderers: Clinical and Forensic Issues", Behavioural Sciences and the Law 17: 495-516 (1999)).

Confusion regarding the Miranda warning

Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure. In 2000, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture" (The Economist, July 2-8, 2005). However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station or when detained. Arrests can occur without questioning and without the Miranda warning — although if the police do change their mind and decide to interrogate the suspect, the warning must be given then. Furthermore, if public safety warrants such action, the police may ask questions prior to a reading of the Miranda warning, and the evidence thus obtained can sometimes still be used against the defendant.

As opposed to the equivalent warnings used in the UK and Australia, the U.S. version implies that exculpatory information gained in interrogation can still be used against, rather in favor of, the person being questioned, which implies a presumption of guilt.

Because Miranda only applies to custodial interrogations, it does not protect detainees from standard booking questions: name, date of birth, address, and the like. Because it is a prophylactic measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood from persons suspected of driving under the influence of alcohol without a warrant.

Currently there is a question about corrections and Miranda. If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that he or she may be charged with while in custody.

Equivalent rights in other countries

Australia

Within Australia, the right to silence derives from common law. The uniform position amongst the states is that neither the judge nor the jury is permitted to draw any inference which is unfavourable to the defendant, where he/she does not answer police questions. While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).

It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)

The current caution used in New South Wales is:

"You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?"

Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, that evidence is likely to be excluded so as to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police and who is fitted with a listening device, that evidence would be admitted.

Australian research indicates that very few suspects actually refuse to speak. Stevenson’s research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the Sydney District Court remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.

A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994. See here, here or here All states have rejected such change. As the NSW Report said:

"It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption. "

It is also important to note that anything said to an Australian police officer should be corroborated, especially by way of video or audio tape. If it is not so corroborated then the trial judge must formally warn the jury of the dangers of relying on uncorroborated evidence. While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not "verbal" an accused.

Canada

In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:

• to be informed promptly of the reasons therefore
• to retain and instruct counsel without delay and be informed of that right
• to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

(See: R. v. Hebert [1990] 2 S.C.R. 15)

Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - protection against self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.

While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have Counsel present during the course of an interrogation. Once a suspect has asserted their right to Counsel, the Police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have Counsel present during the questioning.

England and Wales

The right against self-incrimination originated in England and Wales. In 1912, the judges of the Kings Bench issued the Judges Rules. These provided that, when a police officer wished to question a suspect about an offence, the officer should first caution the person that he was entitled to remain silent. The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in Ibrahim v R [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if it was made in the exercise of a free choice about whether to speak or remain silent:

In R v Leckey (1943) CAR 128 the Court of Criminal Appeal said:

"... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril."

Therefore a caution of the form

You have the right to remain silent, but anything you do say will be taken down and may be used in evidence against you.

was used. The Criminal Justice and Public Order Act 1994 amended (some say abolished) the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation. In other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he or she refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:

You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

or

You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.

or even (in circumstances where no adverse inference can be drawn from silence)

You do not have to say anything, but anything you do say may be given in evidence.

The caution in England and Wales does not explicitly require that a suspect affirms that he or she understands the caution, and many law enforcement officers do not ask this to prevent a recalcitrant suspect from delaying the investigation by falsely claiming not to understand the caution.

France

In France, any person brought in police custody (garde à vue) must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, that of discussing the case with an attorney. Witnesses against whom there exists indictments, or that are cited as suspects, cannot be heard under oath (and thus do not risk prosecution for perjury), must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects (any person against which exist plausible causes of suspicion) must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.

Germany

According to § 136 StPO (Strafprozessordnung = Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation:

• about which crime he is charged
• about his right to remain silent
• about his right to question an attorney before the interview
• about his right to name any evidence in his favour to be obtained

It is not allowed to draw any interference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the same crime.

Foreign suspects have the following additional rights:

• translation assistance
• consular assistance

European Union

Within the European Union, a gradual process of harmonising the laws of individual countries has resulted in calls for a common letter of rights which would apply to all EU citizens. [2] The proposed common standard would protect:

• access to legal advice;
• translation assistance as needed;
• protection for those unable to follow the proceedings; and
• consular assistance for foreign detainees.

These would be contained in a "letter of rights" which would be a printed document to be given to suspects after they are detained and before interrogation[3]. The right to silence does not fall under the proposed common standard. This has been criticised on the grounds that a "letter of rights" from which what some people consider to be the most important right is missing, is confusing for the accused rather than helpful. On the other hand, obstacles to its enactment include the anti-terrorism laws of certain EU members which conflict with these proposed rights.

References

• Coldrey, J. (1990) "The Right to Silence Reassessed" 74 Victorian Bar News 25.
• Coldrey, J. (1991) "The Right to Silence: Should it be curtailed or abolished?"` 20 Anglo-American Law Review 51.
• "Rehnquist's legacy" The Economist. July 2nd-8th, 2005. p. 28.
• Stevenson, N. (1982) "Criminal Cases in the NSW District Court: A Pilot Study" In J. Basten, M. Richardson, C. Ronalds and G. Zdenkowski (eds), The Criminal Injustice System Sydney: Australian Legal Workers Group (NSW) and Legal Service Bulletin.

See also

• Right to silence
• Criminal justice
• Civil rights
• Arrest