Why Miranda? Why exceptions? Why Miranda?

May 16, 2010

Blogger’s Note: With the recent Times Square attempted car bombing incident and subsequent arrest as well as the recent underwear bomber case and others there has been much discussion about Miranda warnings and existing exceptions and creating more or wider exceptions. So here are some of my wild thoughts on the subject: 

The whole idea of Miranda warnings — you know, you have the right to remain silent and anything you say can and will be used against you in a court of law, and you have a right to counsel (before you say anything), and so on — is to prevent police from forcing false confessions out of suspects.

Forcing confessions is a time-honored practice by police. For one thing, it is seen as efficient. It saves a lot of time in investigating. And for another, police know that the public pays them to get the bad guys and they would not be doing their job if they did not get right down to the nitty gritty and catch someone and do what they can to get them convicted (by turning them over to the DA with their own confessions) and put in prison.

Of course it does not really help matters if the wrong person is arrested. There is a long history of innocent people confessing to crimes they did not commit. There are a myriad of ways to intimidate folks into lying to their own disadvantage. Just being held captive with no clear idea of when and if you will be let go is probably enough for most of us to eventually just say anything our captors want to hear (hey, that‘s why torture is not a reliable method of getting the truth out of someone).

So back in 1966 the U.S. Supreme Court decided that police must issue warnings to suspects before those suspects were questioned and if they did not any self-incriminating evidence garnered as the result of interrogations could not be used in court.

The pertinent case here was Miranda v. Arizona (1966). In the end even though a confession was thrown out, the defendant, one Mr. Miranda, was subsequently convicted in a re-trial with other legally-obtained evidence. He served prison time and was released, only to die in 1976 in a bar fight.

The right we have to not be forced to testify against ourselves is in the Constitution. While we are all not constitutional scholars, and thank goodness, we should all know this. It’s fairly simple to understand. You have a right not to have hot lights shined on you or to be water boarded (well there seems to be a question on this), or to just be held for hours without rest or sleep and without hope you will ever see your friends and loved ones again, in an effort to get you to lie and say — I did it, I confess, just let me go! Make it stop! Stop the monkeys! (I don’t know where I got that last one; I think it was a clip out of that old TV show “The Avengers”).

If you were paying attention, information on your personal rights was given to you back in grammar school and high school when you studied or were at least supposed to have studied the Bill of Rights in the Constitution.

You also have a right to be secure in your own things and not be subjected to arbitrary search and seizure. Under the Constitution, police can’t without a proper warrant just barge into your home or office and start tearing things up trying to find something that seems to indicate you may have done something wrong. Back in the bad old days of Colonial America and in the monarchies of the past, authorities could do just that and did.

You also have a right to counsel.

While no law abiding citizen would be unhappy if wrongdoers were discovered by way of police investigation, how secure could one feel if he or she knew that at any moment, police could come busting in and nosing around?

In a democracy people have the right to do and act as they please (as long as it does not violate the law or impinge on the rights of others). But sometimes people curry the disfavor of others, perhaps because they march to the beat of a different drummer, or sometimes people with ulterior motives want to discredit a rival. This leads to heavy-handed tactics of intimidation by authorities, such as arbitrary searches and seizures.

And anyone knows that police could find something in anyone’s possession that could be construed to be evidence of a crime or wrongdoing through misinterpretation.

But I know there are a lot of people who simply feel that the police would not arrest anyone or subject anyone to search and seizure if they were not guilty of something. To those people I would not even bother discussing Miranda or the Bill of Rights. It would be of no use.

Actually I am not sure that Miranda was the proper decision by the high court, though. It seems to me that since having a right to not incriminate yourself and having a right to counsel is so basic, and that everyone should know those rights, there is no need for the police to have to handicap themselves by being forced to dissuade people from talking, which is what they do when they read them their Miranda rights.

(Apparently, however, from all reports, the suspect in the Times Square incident has been quite willingly spilling his guts even after being given his Miranda rights.)

In addition, the remedy the high court comes up with for violation of one’s rights under Miranda and other personal protections is to create a loophole by way of excluding confessions and other illegally obtained evidence from being used at trial. So criminals at times are able to go free even though there is clear evidence against them, to include confessions. A remedy that allows obviously guilty people to go free is a danger to society and makes a mockery of  justice, thereby weakening the respect and effectiveness for and of the law.

I would be more comfortable with the courts deciding on a case-by-case basis whether someone may have actually been coerced into a confession.

When a suspect informs his interrogators that he (or she) does not want to talk or wants to have counsel first, then I would think police should certainly stop at that point.

It could well be that individual law enforcement agencies might take it upon themselves to issue Miranda type warnings in all cases as standard policy. I understand that the FBI and the military were already using a Miranda-like warnings before the actual Miranda decision.

In the case of illegal searches, I’m not sure whether there is a choice but to exclude evidence. Police either go through proper channels and procedures for searches or they do not. There will always be the questions as to what constitutes a search, such as when things are said to be “in plain sight.”.

Back to Miranda: there is now discussion about so-called Miranda exceptions the courts have allowed for cases where the public is in imminent danger and information needs to be elicited on a timely basis.

If we did not have the Miranda requirement we would not have to have exceptions.

And something tells me that a whole can of worms is opened with the courts having to figure out whether something fits into an exception. Just about any circumstance could be construed as an exception, because the whole goal of police arresting someone is to protect the public from imminent danger.

Actually there is no restriction as far as I know on police interrogating a mad bomber without Miranda, it’s just that any info obtained that might be used to protect the public from some imminent danger, such as a bomb ready to explode or other attackers ready to attack, could not be used against the questioned subject in a court case.

When the high court ruled that police had to go through certain physical steps, that is reading Miranda statements to suspects, it went beyond interpreting the law to making policy. It moved from its judicial role to a role that seems to fit more into the legislative or even executive branches.

The high court would have done better to stick to interpreting the law.


Then again, we could just preserve Miranda without exceptions, and let police do what they need to do (short of torture) to get info to protect the public from imminent danger. With or without Miranda, nothing can really make someone tell you the truth.

P.s. P.s.

Since this is not a scholarly treatise I neglected to include various footnote type material, such as the amendments that guarantee personal rights, but here are some: Fourth Amendment, right against unreasonable search and seizure; Fifth Amendment, right against self-incrimination; Sixth Amendment, right to counsel, among other things.

And one more P.s.

A check of the web indicates that “stop the monkeys” actually comes from a made for TV movie in 1973 called Hunter in which a race car driver is made to look at Wizard of Oz footage to brain wash him. I still thought I saw it on the Avengers. Whatever (remember the flying monkeys that attacked Dorothy and her friends?).