I re-read my Constitution and I still can’t find the part where it says that the cops have to tell you your rights.
He’s right, of course. It isn’t in there.
Still, Miranda isn’t entirely a sop to defendants. One of its effects is to forestall claims that a defendant didn’t know of his right to remain silent, or that law enforcement had conspired to deny him counsel. This hurts defendants, because it takes away two possible lines of defense at trial.
Miranda gets bad press partly because its bad effects are visible, while its good effects are not. It’s all too easy to see the suspect who walks because he was improperly Mirandized. Yet it’s impossible to see the suspect who was convicted, but who would have mounted a successful self-incrimination defense in a world without Miranda. In light of studies showing that Miranda has no effect on whether suspects talk, the procedure might even be a net gain for prosecutors. We simply don’t know.
That said, let’s imagine that the warning was right in the text of the Constitution. Would this provision be a good thing or a bad thing? I’m curious what people think. In other words, is the objection to Miranda primarily constitutional? Or is it primarily a policy argument? Or is it both?
Personally, I take the view that Miranda is good public policy. I’m uncertain which side it tends to help more, but the burden on law enforcement is relatively low, and the perception of fairness is very important. Seems like a good deal to me.
I still have my doubts about Miranda as a matter of constitutional law, but at the same time it’s obvious that not all things necessary for good judicial procedure have been, or should be, spelled out in the Constitution. The Framers clearly left a lot of things out by design, and doing so was a good idea. Is Miranda something properly up to us? On that point… I’m undecided.