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Chapter 17: The Right to Remain Silent

Miranda v. Arizona (1966)

Ever since colonial times, most Americans have believed in an old English saying: “It is better for ninety-nine guilty people to go free than for one innocent person to be punished.” In the United States, a person accused of a crime is presumed innocent until proven guilty. Thus the burden of proving the suspect guilty rests upon the government prosecutors.

The U.S. Constitution generally, and especially its Bill of Rights, protects individuals accused of crimes from wrong or unjust accusations and punishments by government officials. But the Constitution and laws made in conformity with it also authorize the federal and state governments to exercise certain powers in order to protect people from criminals intending to harm them. So Americans want their federal and state governments to be simultaneously powerful enough to protect them from criminals and sufficiently limited to prevent the government from abusing anyone, including those accused of criminal behavior.

Constitutional issues inevitably arise when the government’s efforts to prevent crime clash with the need to protect those accused of crime. The U.S. Supreme Court confronted such issues in Miranda v. Arizona (1966). This case arose in 1963 following the arrest of Ernesto Miranda, who was accused of kidnapping and raping a young woman near Phoenix, Arizona. The victim identified Miranda in a lineup at the police station, and the law enforcement officers questioned him intensely for two hours. No one told him that he could refuse to answer questions or seek assistance from a lawyer. Intimidated by the high-pressure tactics of the police, Ernesto Miranda confessed to the crime of which he had been accused.

Miranda was too poor to hire an attorney, so the Maricopa County Court provided a lawyer to assist him at trial. He was duly tried, and near the end of the proceedings the presiding official, Judge Yale McFate, gave instructions to the members of the jury before they departed to meet, deliberate, and decide the defendant’s guilt or innocence. The judge said he had allowed Miranda’s confession to be presented as evidence in the trail despite objections of the defendant’s attorney, who claimed that his client had been forced to admit guilt. The judge emphasized that the jury was free to decide whether Miranda’s confession had been voluntary or coerced. However, the judge’s final words of instruction raised the constitutional issue that eventually brought Miranda’s case to the Supreme Court:

The fact that a defendant was under arrest at the time he made a confession or that he was not at the time represented by counsel or that he was not told that any statement he might make could be or would be used against him, in and of themselves, will not render such a confession involuntary.

After five hours of deliberation, the jury of three women and nine men returned to the courtroom and presented their verdict: Miranda was found guilty of kidnapping and raping the victim. Judge McFate sentenced Miranda to serve twenty to thirty years in the Arizona State Prison at Florence. Miranda appealed to the Arizona Supreme Court, which upheld his conviction.

From his prison cell, Miranda petitioned the U.S. Supreme Court, which accepted his case in 1966 because it raised unresolved issues about the constitutional rights of an accused person that the Court wanted to settle. These issues had surfaced in the wake of Escobedo v. Illinois (1964), which the Court had decided nearly one year after Miranda’s trial.

Miranda v. Arizona (1966)

  • 384 U.S. 436 (1966)
  • Decided: June 13, 1966
  • Vote: 5–4
  • Opinion of the Court: Earl Warren Concurring opinion in part, dissenting in part: Tom Clark
  • Dissenting opinions: John Marshall Harlan II (Potter Stewart and Byron White) and Byron White (John Marshall Harlan II and Potter Stewart)

The Court’s Escobedo decision expanded the Sixth Amendment right to counsel, which previously had been understood as an accused person’s right to have a lawyer at the time of trial. After Escobedo this right also covered the time of interrogation by police. But there was confusion among law enforcement officers and trial judges across the country about how to apply the Escobedo decision. Questions arose about matters such as when an attorney must be present to assist an accused person and exactly when the suspect had to be informed about his or her rights to counsel. The U.S. Supreme Court planned to use the Miranda case to respond to the confusion the Escobedo decision raised.

Miranda’s chief counselor, John Flynn, was a highly regarded criminal defense lawyer who was recruited for this case by the American Civil Liberties Union (ACLU). In his oral argument and brief presented to the Court, Flynn claimed that the police violated Miranda’s Fifth Amendment right to protection against self-incrimination. This part of the Bill of Rights says, “No person . . . shall be compelled in any criminal case to be a witness against himself.”

Flynn said that the police had behaved unconstitutionally because they did not inform the suspect, Miranda, of his right to remain silent, so as not to assume the risk of providing incriminating evidence to his police interrogators. Because the police gained their evidence, Miranda’s confession, unconstitutionally, Flynn argued it should be dismissed from consideration. Finally, Flynn linked the denial of Miranda’s Fifth Amendment right to protection from self-incrimination to his Sixth Amendment right to a lawyer. Flynn argued that if a lawyer had been present, then Miranda probably would not have so readily provided an incriminating confession, which was the product of subtle, if not overt, intimidation by the police.

Arizona’s lawyers argued that Miranda could have asked for a lawyer at any time during questioning. He had not done so. They also said no one had forced him to confess. His interrogators had neither harmed him physically nor threatened to do so. Because Miranda had given his confession voluntarily, the prosecution was justified in using it in court to convict him.

The Supreme Court agreed with John Flynn’s arguments for Miranda and struck down his conviction. The police in charge of Miranda’s case had violated his Fifth Amendment right to protection against self-incrimination, and, while doing this, they had neglected to make him aware of his Sixth Amendment right to a lawyer. Writing for the Court, Chief Justice Earl Warren said that Miranda raised issues that “go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.” He stressed “the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.”

The chief justice provided strict and clear rules for the police to follow in future cases of this kind. From now on, said Warren’s opinion for the Court, law enforcement officers are required to inform suspects that they have the right to remain silent, that anything they say can be held against them, that they have a right to consult a lawyer, and that they may request the attorney to be present during questioning. Further, they must be told that if they cannot afford to hire an attorney, the state will provide one for them. The police must inform the suspect of these rights, the Court said, before any questioning can take place. A defendant can then voluntarily waive the rights communicated to her or him by the police. But if not, the law-enforcement officers must follow the rules exactly as prescribed by the Court. If they fail to do so, then any evidence obtained would be a product of unconstitutional violations of the Fifth and Sixth Amendments, and therefore could not be used against the suspect in a court of law.

Chief Justice Warren’s opinion emphasized that if a suspect wants to remain silent or to contact a lawyer, police interrogation must stop until the suspect is ready to talk again or a lawyer is present. And the chief justice insisted that the rules prescribed by the Court in response to this case—later known as Miranda warnings—are an “absolute prerequisite” to interrogation of an accused person. Warren argued that the U.S. system of justice is based on the idea that an individual is innocent until proved guilty. The government, he emphasized, must produce evidence against an accused person. It cannot resort to forcing suspects to prove their own guilt.

The dissent of Justice John Marshall Harlan II began with a sharp criticism: “I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large.” He continued in this vein, “One is entitled to feel astonished that the Constitution can be read to produce this result.” He found nothing wrong with the procedures used by the law-enforcement officers in this case. “Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court’s own finespun conception of fairness which I seriously doubt is shared by many thinking citizens in this country.”

Justice Byron White dissented even more strongly than Harlan. He wrote, “The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.” He predicted grim consequences from the Court’s requirement that the Miranda warnings must be issued in order to obtain evidence constitutionally from a suspect. Justice White said, “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

Miranda, however, was not returned to the streets by the Court’s decision, as Justice White had feared. His case was remanded, or sent back, to the court of original jurisdiction for retrial without the inadmissible evidence. Nonetheless, Miranda was convicted again and sent to prison. He was paroled in 1972, but in 1976 he was knifed and killed during a barroom fight in Phoenix. After arresting a suspect in the murder of Miranda, the policemen read the Court-mandated Miranda warning to him. He exercised his right to remain silent and was released from custody. No one was ever charged in the murder of Ernesto Miranda.

At the time Miranda was decided, it was controversial. Many law enforcement officials complained that the mandated use of Miranda warnings severely interfered with their ability to gather evidence from suspects. In his successful 1968 campaign for President, Richard Nixon strongly criticized the Court’s Miranda decision as an unnecessary obstacle to the work of law-enforcement officers. Nixon charged that too many federal judges were “soft” in their judgments of criminals. He pledged that, if elected, he would fill any open seats on the Supreme Court with justices who would overturn the Miranda decision and other rulings that favored the rights of criminals more than the rights of their victims and the authority of the police. And so he did, with the appointment of Warren Burger to replace Earl Warren as chief justice in 1969. Burger had publicly expressed his displeasure with the Miranda decision. In a 1968 meeting of the Center for the Study of Democratic Institutions, Burger had said, “Certainly you have heard—and judges have said—that one should not convict a man out of his own mouth [through a confession]. The fact is that we establish responsibility and liability and we convict in all the areas of civil litigation out of the mouth of the defendant.”

During Burger’s tenure as chief justice, the Court did slightly modify the rules established by the Miranda case.

In New York v. Quarles (1984), the Court decided that police officers could, in order to protect themselves, question a suspect about possession of weapons before informing her or him of the Miranda warnings. However, the Court maintained and even strengthened the Miranda precedent after Burger retired from the Court in 1986.

In Dickerson v. United States (2000), the Court reaffirmed, by a 7–2 vote, the Miranda rights of suspects. At issue was a 1968 federal law that held it was not always necessary to read Miranda warnings to suspects before they confessed voluntarily to crimes. This law was made in reaction to the Miranda decision. In striking down this statute, Chief Justice William Rehnquist wrote, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Thus, the Court struck down the 1968 congressional statute and stressed that the police must give the Miranda warnings to suspects or risk having their confessions excluded as evidence against them.

Today, law enforcement officers throughout the United States carry cards with the Miranda warnings printed on them, as they have done since the Supreme Court’s pivotal decision of 1966. These cards include four warnings that all suspects need to know: the right to remain silent, the reminder that anything said by the suspect can be used against her or him, the right to a lawyer, and the reminder that a lawyer will be provided free if the suspect cannot afford to hire one.

The Miranda case is a standing reminder of the ongoing tensions between liberty and order in the United States. In our free society, there will always be questions about the proper balance between the rights of criminal suspects and the need for safety and security against criminals. The exact meaning and practical applications of due process rights—such as the Miranda warnings—will continue to be debated in community forums and courts of law. Such constructive controversies are vital signs of a healthy constitutional democracy.

Protecting the Rights of the Accused

John Flynn presented the oral argument for Ernesto Miranda before the Supreme Court on February 28, 1966. Flynn described Miranda’s arrest and argued that the police had subtly coerced his confession during his interrogation. Flynn emphasized Miranda’s vulnerability to manipulation. He pointed to his lack of education, minimal intelligence, and low social status as disadvantages exploited by the questioners to influence Miranda to confess to a crime. Flynn charged that people such as Miranda often do not receive justice on equal terms with the more advantaged members of society. Both Chief Justice Warren and Justice Stewart asked leading questions that prompted Flynn to provide answers that helped his client.

Warren: Mr. Flynn, you may proceed now.

Flynn: Mr. Chief Justice, may it please the Court.

This case concerns itself with the conviction of a defendant of two crimes of rape and kidnapping, the sentences on each count of twenty to thirty years to run concurrently . . .

Now the issue before the Court is the admission in evidence of the defendant’s confession, under the facts and circumstances of this case, over the specific objection of his trial counsel that it had been given in the absence of counsel . . .

The facts in the case indicate that the defendant was a twenty-three-year-old, Spanish-American extraction, that on the morning of March 13, 1963, he was arrested at his home, taken down to the police station by two officers named Young and Cooley; that at the police station he was immediately placed in a lineup. He was there identified by the prosecutrix [sic] in this case . . . And immediately after the interrogations, he was taken into the police confessional at approximately 11:30 A.M. and by 1:30 they had obtained from him an oral confession.

He had denied his guilt, according to the officers, at the commencement of the interrogation; by 1:30 he had confessed. I believe that the record indicates that at no time during the interrogation and prior to his confession, his oral confession, was he advised either of his right to remain silent, of his right to counsel, or of his right to consult with counsel . . .

The defendant was then asked to sign a confession, to which he agreed. The form handed to him to write on contained a typed statement as follows, which precedes his handwritten confession. “I, Ernesto A. Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.”

The statement was read to him by the officers, and he confessed in his own handwriting. Throughout the interrogation the defendant did not request counsel at any time. In due course, the trial court appointed counsel to defend him . . .

The further history relating to this defendant found . . . that he had an eighth-grade education, and . . . a prior criminal record and that he was mentally abnormal. He was found, however, to be competent to stand trial and legally sane at the time of the commission of the alleged acts . . .

Stewart: What do you think is the result of the adversary process coming into being when this focusing takes place [against a particular suspect]? What follows from that? Is there then, what, a right to a lawyer?

Flynn: I think that the man at that time has the right to exercise, if he knows and under the present state of the law in Arizona, if he’s rich enough, and if he’s educated enough, to assert his Fifth Amendment right, and if he recognizes that he has a Fifth Amendment right, to request counsel. But I simply say that at that stage of the proceeding, under the facts and circumstances in Miranda of a man of limited education, of a man who certainly is mentally abnormal, who is certainly an indigent, that when that adversary process came into being that the police, at the very least, had an obligation to extend to this man not only his clear Fifth Amendment right, but to afford to him the right of counsel [provided in the Sixth Amendment] . . .

Stewart: I don’t mean to quibble, and I apologize, but I think it’s first important to define what those rights are—what his rights under the Constitution are at that point. He can’t be advised of his rights unless somebody knows what those rights are.

Flynn: Precisely my point. And the only person that can adequately advise a person like Ernest Miranda is a lawyer.

Stewart: And what would the lawyer advise him that his rights then were?

Flynn: That he had the right not to incriminate himself, that he had a right not to make any statement, that he had the right to be free from further questioning by the police department, that he had the right, at an ultimate time, to be represented adequately by counsel in court; and that if he was too indigent, too poor to employ counsel, that the state would furnish him counsel . . .

[Justice Black asked if the Constitution protected all Americans.]

Flynn: It certainly does protect the rich, the educated, and the strong—those rich enough to hire counsel, those who are educated enough to know what their rights are, and those who are strong enough to withstand police interrogation and assert those rights . . . In view of the interrogation and the facts and circumstances of Miranda, it simply had no application . . . and that’s what I am attempting to express to the Court.

Stewart: Is there any claim in this case that this confession was compelled—was involuntary?

Flynn: No, your Honor.

Stewart: None at all?

Flynn: None at all. We have raised no question that he was compelled to give this statement, in the sense that anyone forced him to do it by coercion, by threats, by promises, or compulsion of that kind.

Black: He doesn’t have to have a gun pointed at his head, does he?

White: Of course he doesn’t. So he was compelled to do it, wasn’t he, according to your theory?

Flynn: Not by gunpoint, as Mr. Justice Black has indicated. He was called upon to surrender a right that he didn’t fully realize and appreciate that he had . . .

Warren: I suppose, Mr. Flynn, you would say that if the police had said to this young man, “Now, you’re a nice young man, and we don’t want to hurt you, and so forth; we’re your friends and if you’ll just tell us how you committed this crime, we’ll let you go home and we won’t prosecute you,” that that would be a violation of the Fifth Amendment, and that technically speaking would not be “compelling” him to do it. It would be an inducement, wouldn’t it?

Flynn: That is correct.

Warren: I suppose you would argue that that is still within the Fifth Amendment, wouldn’t you?

Flynn: It’s an abdication of the Fifth Amendment right, simply because of the total circumstances existing at that time . . .

Warren: That’s what I mean.