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40 Years of ‘Miranda’ Rights

Anyone who watches American police dramas knows the drill: the cops arrest a suspect and tell him: 'You have the right to remain silent.' But that wasn't always the case.

Forty years ago (June 13, 1966) the Supreme Court heard a landmark case dealing with a man who was convicted of rape and armed robbery, based on a signed confession he gave the police. His lawyers appealed, saying he did not know that the Constitution guaranteed him the right against self-incrimination. The Supreme Court's decision that Ernesto Miranda should have been advised of his rights changed the way police have done their jobs ever since, and added a new word to the American vocabulary - "Mirandize."

Sergeant Jeff Herrick of the Roanoke County Police Department in Virginia estimates he has "Mirandized" hundreds of people over the course of his 25-year career in law enforcement. He says he probably could recite the "Miranda warning" by rote, but he always reads it from a card to make sure he doesn't omit anything:

"'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 with a lawyer and have the lawyer present with you during any questioning. And if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you so desire.' I pause and then say, 'Do you understand those rights? Do you wish to talk to me?'"

Herrick says he takes the Miranda warning seriously, and not just because it is required by law. "There might be a time where I would get questioned - somebody feels I've done something wrong. I like the idea of having rights, too." He believes movies and television shows perpetuate a misperception that police "go out of their way to violate the Constitution and totally disregard it." But he believes "most officers take it very seriously."

Forty years ago, the idea that anyone taken into police custody for questioning must first be advised of his or her Constitutional rights was controversial. It was assumed that the Fifth Amendment, which states that no one shall be compelled to be a witness against himself in a criminal case, only applied in the courtroom. The Supreme Court decision on "Miranda" was a narrow one, 5 to 4.

Police thought "Miranda" would make it impossible to get people to confess to crimes, that any rational person who was guilty would keep silent. They were wrong:

"About 80 percent of the suspects waive 'Miranda' and talk to the police," says George Thomas, a law professor at Rutgers University and co-editor of The Miranda Debate: Law, Justice and Policing. He says those people who waive their right to remain silent "are always hoping that they will find the right combination of words that will persuade the police to let them go. At least the suspects who are guilty - and most of them are - most of these people have spent their entire lives lying to authority figures - their teachers, their parents. And they think they are good at it. Of course, they are not."

"Miranda" is much more limited than many people realize. The law only requires a person be read his rights after he has been taken into custody. Any information volunteered by someone who hasn't been brought into custody can lead to a warrant for his or her arrest, as Sergeant Jeff Herrick explains. "I come to you. I say I want to talk to you about the burglary of your neighbor's house. I get to talking with you and for whatever reason you confess that you committed the burglary. I don't take you into custody at that point. I say I'm going to have to get warrants. If I have no intention of taking you into custody [at that moment], I don't have to read you 'Miranda.'"

Nevertheless, "Miranda" continued to have its critics, according to Yale Kamisar, who has written extensively on criminal procedure and the U.S. Constitution. The University of Michigan law professor says William Rehnquist, who served on the Supreme Court from 1972 until his death last September, was among the most vocal. "When Rehnquist was an Assistant Attorney General, even before he was on the Supreme Court, he wrote a memo to the White House urging the establishment of a national commission to consider amending the Constitution and getting rid of 'Miranda,'" Kamisar says. "And he said things which encouraged the critics to believe that the Congress could repeal 'Miranda.'"

In 2000, the Supreme Court had the opportunity to overturn its previous ruling. With Rehnquist serving as Chief Justice, many believed it would happen. But Rehnquist not only voted with the 7 to 2 majority to uphold "Miranda," he wrote the opinion stating, "'Miranda' has become embedded in routine police practice to the point where the warnings have become part of our national culture."