Miranda v. Arizona
Most people in the United States have, at some point, seen a television show or a movie in which, while arresting a suspect, the police officer “reads him his rights.” The “rights” here are based in the Fifth Amendment, and the reasons for the reading of the rights by the police officer stem from the privilege against self-incrimination, which may be waived or asserted. The rights, as read by police officers, are something to this effect:
"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 an attorney. If you cannot afford one, one will be provided for you by the court."
The Fifth Amendment itself, however, does not contain this language that we have come to know so well, nor is this language found in any statute. This language, which has come to be known as the “Miranda warnings” come to us from the case of Miranda v. Arizona, 384 U.S. 436 (1966).
The privilege against self-incrimination found in the Fifth Amendment, and thus the requirement for the Miranda warnings, applies to the states as well as to the federal government. See Malloy v. Hogan, 378 U.S. 1 (1964).
The Fifth Amendment privilege against self-incrimination applied to the states by the Malloy court, and further delineated in Miranda, boils down to the following:
A Defendant’s statement made while in custody, and in response to interrogation, cannot be used to establish the defendant’s guilt in a criminal trial, unless the Defendant was appropriately advised of his Fifth Amendment privilege and voluntarily chose to waive that privilege.
In the next few sections we will address the concepts
of custody, interrogation, and voluntary waiver of the privilege. Now,
let’s look at the privilege itself.
Prior to any questioning, the suspect must be warned that he has a right to remain silent, that any statement the suspect does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. and that the defendant may waive effectuation of these rights. See Miranda v. Arizona, 384 U.S. 436 (1966).
There are two distinct rights spelled out here – the right to remain silent and the right to have an attorney present during questioning – and they have different ramifications for questioning suspects.
The right to remain silent must be asserted contemporaneously with the questioning, meaning that a defendant cannot answer a question and then later try to exercise the privilege against self-incrimination regarding that question and "cancel" the previous answer. She may, however, exercise the privilege regarding any future questions.
EXAMPLE: Beth is arrested for the stabbing death of her abusive husband. After being properly read her rights (also referred to as being “Mirandized”), Officer Gentle asks what kind of relationship she had with the deceased. Beth replies “Well, all I can say about it is that he was a no-good, drunken slob, and I'm glad he’s dead.” Officer Gentle then says “I’m glad too. And I’d sure like you to tell me which knife you used to kill him.” Beth then asserts her privilege against self-incrimination by refusing to answer any further questions. Her response to the initial question is admissible as evidence against her at her criminal trial, but she cannot be compelled to respond to any further questions.
Once the “right to remain silent” has been asserted, all questioning regarding that matter must cease. It is permissible, however, to question the defendant about unrelated crimes or incidents. In other words, the right to remain silent is "offense specific," and following a break and fresh Miranda warnings, questioning may continue along different lines.
EXAMPLE: A few minutes after Beth asserts her privilege above, Officer Malkop enters the room. He Mirandizes Beth again, and tells her that they found 57 cases of ketchup in her closet, which had been reported stolen from a local supply house last week. He then asks her what she did with the mustard that was also stolen. “I used it on my french fries, of course,” she replies. This statement can be used against Beth in her trial for committing the condiment crimes.
The right to the presence of an attorney during questioning operates in a substantially different manner than does the right to remain silent. While the right to remain silent may be exercised by doing just that – remaining silent – a demand for counsel must be explicit. That is, the defendant must assert the right by requesting counsel and stating that she will not answer any further questions outside the presence of counsel.
EXAMPLE (1) After the mustard mistake, Beth realized that she might be in serious trouble, and says “I won’t say another word about my husband until my lawyer gets here.” Not only must Officer Gentle stop asking questions about the dead husband, but Officer Malkop cannot ask any further questions about the misappropriated mustard.
EXAMPLE (2) Later than night, Lucy, Beth’s daughter, is taken into custody for questioning regarding her mother’s husband's death. After being Mirandized, Lucy says “I don’t need a lawyer, but I won’t say a word unless my priest is here.” The police continue to question her, refusing her access to her priest, until she sobbingly confesses that she provided the knife which was used to kill Beth’s husband, knowing what the knife was to be used for. Because refusing to answer questions outside the presence of a priest is not an assertion of Lucy’s Fifth Amendment privilege to have counsel present during questioning, her confession can be used against her in criminal court. See In re Michael C., 21 Cal.3d 471 (1978).
As with most rules of law, there is an important exception to the Miranda requirements. If there is a public safety concern, the individual’s rights are temporarily outweighed by the need to protect the public. In such a case, even if police question a suspect prior to Mirandizing, the responses can be used at trial. See New York v. Quarles, 467 U.S. 649 (1984).
EXAMPLE: Officer Kobruh comes upon an armed gunman in a crowded supermarket. The radio dispatcher had indicated that at least two gunmen were involved. After not-so-gently subduing and handcuffing the gunman, Officer Kobruh asks “Where’s your gun?” The scared gunman replies “I was just the lookout. The other guy is hiding behind the fish display. I dropped my gun over there when I was trying to run away .” When the smoke clears, Officer Kobruh reads both assailants their Miranda warnings. The gunman’s statement is admissible as evidence against him because locating the gun was important enough to public safety so that it effectively outweighed the Fifth Amendment rights of the suspect.
In addition to this exception, there are some other limits on the Fifth Amendment privilege. First, the privilege may be asserted only by natural persons (if it cannot be asserted on behalf of the corporation). Second, the privilege applies only to self-incriminating statements. In other words, the responses of a suspect in a burglary investigation who was not Mirandized can be used to convict his accomplice at trial, but cannot be used to convict the suspect himself. Finally, only testimonial evidence is covered by the privilege. That is, evidence which is elicited from questioning a witness or suspect. Physical evidence, such as the results of a blood test, are not covered by the Fifth Amendment and can be used regardless of whether a suspect was Mirandized and regardless of whether that suspect asserted or waived her privilege. See Gilbert v. California, 388 U.S. 263 (1967).
EXAMPLE: Tom Plume is arrested for forgery. He is suspected of cashing over $50,000 worth of stolen checks. After reading Tom his Miranda warning, Officer Chimeron hands him a form and asks him to complete the sections where it asks for name, date of birth and today’s date, and then to sign the form at the bottom. Officer Chimeron explains that this is a standard form used to confirm that the Miranda warning has been read and understood, and that it does not entail a waiver of Tom’s privilege against self-incrimination. As Tom is filling out the form he says “Good, because I'm not waiving my rights.” Handwriting analysis proves that Tom’s writing on the form, matches that of the forger, and when admitted as evidence in court, this leads to Tom’s conviction. Because Tom’s handwriting and signature are physical evidence and not testimonial evidence, the Fifth Amendment privilege is inapplicable.
One similarity between the Fourth Amendment protection against unreasonable searches and seizure and the Fifth Amendment privilege against self-incrimination is the "government agent" requirement. The privilege here can only be asserted against a questioner known by the suspect to be a government agent. See Illinois v. Perkins, 496 U.S. 292 (1990).
EXAMPLE: Undercover Officer Harskey and his partner Stutch are at a local bar hanging out with the guys. The "guys” happen to be involved in a highly profitable drug ring. Harskey and Stutch ask their companions where they can “buy some stuff.” One gentleman replies “I can get you the best stuff you’ve ever seen. I carry it in from Guadeloupe myself by bribing the customs agents at the airport.” Because the drug smuggler did not know the true identities of Harskey and Stutch, there is no possible coercion, and the lack of a Miranda warning does not preclude using the extrajudicial confession against him in court.
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