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 talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
The Miranda rights. You’ve all heard them a thousand times on television and in movies, and this year they have reached their golden anniversary. Fifty years of law enforcement providing a simple set of warnings and instructions when arresting someone, and the jury is still out on whether or not the system is a success or a failure. Before we get in to all that, though, you have the right to remain informed, and learn about the circumstances that gave birth to these ubiquitous rights.
In 1963 there was a man named Ernesto Miranda who was arrested and charged with rape, kidnapping, and murder. Before a two-hour marathon interrogation, he was not informed of his rights, and subsequently when he confessed on tape, he claimed the police had unconstitutionally obtained his confession. Miranda had barely finished eighth grade, had a history of mental instability, and also had no counsel present during questioning. Subsequently, he claimed the whole confession was unconstitutionally obtained since the Fifth Amendment guarantees the right not to self-incriminate and the sixth amendment guarantees the right to an attorney. So, Miranda appealed to the U.S. Supreme Court after the Arizona Supreme Court upheld the conviction obtained solely with the taped confession. The U.S. Supreme Court reviewed the case in 1966, and in a landmark 5-4 decision written by Chief Justice Earl Warren himself, the U.S. Supreme Court held that the prosecution could not use Miranda’s confession as evidence in his trial because the police had failed to inform Miranda he had the right to an attorney and the right to refrain from incriminating himself. Thus were born the “Miranda” rights, and police and criminals have been getting along like best friends ever since.
Ha - if only that were the case. In actual fact, the Miranda warnings have been a source of controversy and debate since they were implemented.
First, let’s take a look at the most famous part – “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Obviously this is telling people that they have a constitutional right against self-incrimination. Unfortunately, by making you aware of this, police can and will use anything you say at all against you. Even if you are innocent and you accidentally misspeak, it can and most probably will be used against you. Conversely, if you tell the whole truth and nothing but, prosecutors still may decide to use part or all of that truth to convict you for a crime they may know you didn’t commit, simply to give the public their pound of flesh.
So you might be saying, “I’ll just keep quiet then, and I can’t incriminate myself.” Problem solved. Well, you’d actually be wrong there as well. In a case from 2013, Salinas v. Texas, the Supreme Court ruled in a 5-4 decision that unless someone conclusively invokes their fifth amendment right to not self-incriminate, even a period of silence or gestures and motions may be argued in court as a sign of guilt. In the Salinas case, Genovevo Salinas, a Texas resident, was suspected of murder and brought in for questioning, and the police hadn’t’ even read him his Miranda rights when Salinas was asked if the gun found in his home would match the shells found at the scene of the crime. Salinas said nothing but, according to police, he remained silent and showed signs of deception. Years later, after the prosecution’s first attempt ended in a mistrial, in the second trial it was argued by the state that Salinas’ silence about the shotgun shells when questioned was a sign of guilt. When it finally ended up in the Supreme Court of the United States, it was decided that a suspect could not invoke his fifth amendment right against self-incrimination unless he or she was officially in police custody, and also that unless the suspect’s ability to invoke was prevented by the police, the suspect has to clearly state he or she is invoking the fifth amendment right to not self-incriminate. Now, I know that’s a lot of information to absorb but here’s the crux: “You have the right to remain silent,” isn’t really even true any more! You have the right to invoke your Fifth Amendment rights, but unless you clearly indicate you are doing so, remaining silent does not protect you from incriminating yourself! The Miranda rights are clearly worded to insinuate that remaining silent does help you, when, in essence, the warning is at best useless, and, at worst, purposefully misleading.
So, we’ve dealt with the remaining silent portion, but what about the right to a lawyer?
Well, first of all, there have been a myriad of court cases deciding on the nebulous nature of invoking the right to counsel and when it applies and doesn’t apply, how long the police have to wait after a suspect invokes, and how many times a suspect has to invoke when dealing with separate crimes. The bottom line is that sometimes, even the police don’t know when invocation applies and need a guide, and, yet, a suspect who has just been arrested is automatically supposed to know?
Assuming you’ve correctly invoked, now you realize you cannot afford an attorney and decide to ask for a public defender. Well, in Louisiana, if you promise not to do it again a judge might release you. Thirty-three out of forty-two public defender offices are refusing cases due to lack of funds and staff. Yes, I said refusing cases. Even if you do get accepted there’s a wait list and many have no idea when they will see a lawyer and obtain a court date. That leaves hundreds of people in jail in Louisiana with no foreseeable access to legal counsel. I’m sad to report that the problem isn’t restricted to Louisiana, either, it’s happening all over. So you have people sitting in jail with no resolution in sight, and if you add the rules of what constitutes invoking a lawyer when that invocation expires, you have the recipe for a legal quagmire that rivals the Bog of Eternal Stench.
So, 50 years of Miranda make it difficult for me to say exactly how the warnings have helped. Many suspects just hear meaningless words, barely understand what’s happening to them, fall for police ploys, and if you are a mentally unstable suspect then it’s unclear if you can even legally waive your Miranda rights. Frankly, I think it’s time we all waived our right to remain silent on this issue, and found a better way.
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