Miranda, Seen and Unseen

Commenter Scott writes:

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.

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14 thoughts on “Miranda, Seen and Unseen

  1. “Personally, I take the view that Miranda is good public policy. “

    I don’t. There are things like Miranda that could be good public policy, but as your post and Mark’s state well, enough, Miranda doesn’t do what the public thinks it does.

    Police officers routinely abuse citizens, guilty and innocent, routinely lie in court, routinely suck down overtime and bloated public sector pensions contributing to the current fiscal crisis.


      • Not really, but it is tangentially related. It’s fair to say the public perception of Miranda is that we give up the ability to convict some criminals in order to prevent serious police abuse. That might be a reasonable tradeoff in some circumstances but as things stand I think we’re losing on both ends.

        I don’t think Miranda can be directly replaced with something else. It’s probably also better than not having Miranda at all so that extent we can say Miranda is good.

        The prevention of police and prosecutorial abuse is a serious issue that we don’t want to just we’ve done Miranda now that’s over. It’s difficult to know what do exactly. A couple random thoughts: ban prosecutors from threatening people with crimes that the prosecutor has no good faith reason to believe a would-be defendant is guilty of. Aggressively go after police perjury as prosecution witnesses in criminal trials, perhaps the most underprosecuted crime in America today.


  2. The Ninth Amendment says, in its entirety:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    What this means is that people who say things like “I deny/disparage rights retained by the people by using the enumeration of certain rights in this Constitution” are violating the Constitution.

    And it drives me up the wall, it does.


    • @Jaybird,

      The problem I have with your analysis is that the Miranda warning simply isn’t a pre-political, pre-constitutional right. In other words, it’s not of the type that’s being retained in submitting to the Constitution.

      A Miranda warning is a positive right — an obligation of government officials to perform a given procedure under the constitution. It might be wise or unwise, but one thing it’s certainly not is a natural right of the type the Ninth Amendment was designed to protect.


      • @Jason Kuznicki, I’ve been thinking about this and I’ll begin by saying “of course you’re right” then quickly gloss over that and move to the “but” part.

        What Miranda is, ideally, is a quick civics lesson for the poor bastard in handcuffs. Sure, there’s an 80% chance the guy’s guilty. That 20%, however, requires an active protection on the part of the authorities.

        Miranda ought to be criticized by how pitiful it is rather than by how much protection it offers.


  3. Miranda’s right there in the 5th (as incorporated against the States — see War, Civil, US) Amendment — “… nor be deprived of life, liberty, or property, without due process of law”.

    What does “due process” mean? (As people have been arguing over the meaning of this phrase for 200+ years, I think we can agree that the meaning is not perfectly clear.) Can the government use a person’s ignorance of his Constitutional right to remain silent in order to obtain a confession? US Sup Ct said no — while an individual cannot use ignorance of the law as a defense against a criminal charge, the government cannot use such ignorance as a weapon.

    Seems fair to me.


  4. The point where I began appreciating Miranda, rather than maligning it, came in college when I learned about the Miranda case itself.

    Miranda the defendant was not a good guy, and in fact died later in a bar knife fight. But the police in the case in question knew that, though probably guilty of something, he wasn’t actually a viable suspect for the case they were investigating. But arresting and convicting Miranda got a bad dude off the streets and closed a case, both in one fail swoop.

    They told him because of his past record he had de facto forfeited his right to an attorney, and they were in a position to give him a lesser sentence on the spot if he signed a confession. Neither of those things was true.

    Given the choice between allowing law enforcement to act in that way, or force them to play by the book at the risk of endangering their case, I have to go with the former.


  5. It isn’t necessitated by the Constitution. It is necessitated by the fact that police departments do take short cuts around the Constitution unless something is done to discourage them doing so. The laws of physics don’t require a pilot to check his wing surfaces and engine before take off, but they sure exact a vengeance if he or she doesn’t and there was a problem that could have been handled on the ground.

    Another good argument for Miranda is that the U.S. exports so many cop shows that people around the world realize that they should have certain rights with respect to law enforcement personnel, whether they do or don’t.


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