The 50th Anniversary of Miranda

“The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

This month marks the fiftieth anniversary of the U.S. Supreme Court’s seminal decision in Miranda v. Arizona.

To commemorate the occasion, here’s a great write-up on why the case matters so much and how we can do even better going forward.

But you should read the opinion for yourself if you can. It chronicles the history of the Fifth Amendment’s right against self-incrimination. It catalogues many of the standard police interrogation practices that remain current today. And it makes a moral case for an adversarial system that respects the dignity of its people over an inquisitorial system that simply overpowers them.

This last point becomes ever more important in our lifetimes as the balance of power between people and the state shifts decidedly, and permanently, in favor of the state.

Whether you read it or not, below is the core of the Miranda opinion, which describes what we’ve come to know as the Miranda warnings and which I’ve revised to make easier to read.

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We spell out our holding with some specificity in the pages that follow, but briefly stated, it is this: a prosecution may not use any statement that people make to police in a custodial interrogation unless it demonstrates that police used effective safeguards to protect the right against self-incrimination. By custodial interrogation, we mean any questioning that police initiate after they take people into custody or otherwise deprive them of their freedom of action in any significant way.

For the safeguards to be employed, we require the following procedures in the absence of other, fully effective ways to inform people of their right to remain silent and ensure they have a continuous opportunity to exercise it.

Before any questioning, the police must warn people that they have a right to remain silent; that any statement they make may be used against them as evidence; that they have a right to have an attorney there with them before they’re interrogated; and that they’re entitled to have an attorney appointed for them if they can’t afford one.

People may waive these rights as long as they do so knowingly, voluntarily, and intelligently. But they also reserve the right to change their minds and ask for a lawyer at any time, and if they do, the police must stop questioning them. The mere fact that people may answer some questions or volunteer some statements on their own does not deprive them of the right to refrain from answering further questions until they’ve consulted an attorney and consented to more questioning.

A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”

One Way to the Gallows

To appreciate due process, consider the story of a simple man named George Spencer who was accused, of all things, of impregnating a pig in puritan New England. His story takes place in 1642, and it’s excerpted from the book, The Case of the Piglet’s Paternity: Trials from New Haven Colony, 1639-1663, by Jon C. Blue, a Superior Court judge in Connecticut.

One day, a local farmer complained to the colony’s magistrates that a female pig he’d just bought had birthed a deformed stillborn, and what’s more, the dead piglet looked like Spencer, a former servant of the man who sold him the sow. I’m sure that alone was tough to hear for Spencer, who may not have been a looker. He had one good eye and one deformed eye, and apparently, his bad eye in particular resembled that of the piglet.

The resemblance caused such consternation that, ten days later, the magistrates questioned Spencer about “this abomination.” Not surprisingly, Spencer denied being the father, but the magistrates committed him to prison based on “strong probabilities.”

That night, one of the magistrates went to the prison, found Spencer talking with two other men, and asked him “if he had not committed that abominable filthiness with the sow.” But Spencer again denied it. The magistrate then pointedly asked whether he didn’t notice a family resemblance—ouch—and recited to him Proverbs 28:13: “He that hides his sins shall not prosper, but he that confesses and forsakes them shall find mercy.”

The magistrate pressed, asking Spencer if he regretted denying “the fact which seemed to be witnessed from heaven against him.”

Spencer then relented, said was he was sorry, and confessed to the deed.

It sealed his fate.

The following day, the magistrates returned to the prison with a throng of others. They confronted Spencer and urged him to confess his sin. He initially denied it, but when he was reminded of his prior confession, he confessed again.

Then people really got riled up. The next day, the colony’s governor joined the magistrates to question Spencer personally. The authorities asked him “how long the temptation had been upon his spirit before he committed it.” Spencer replied that “it had been upon his spirit two or three days before.”

Within a week, Spencer was put on trial. He had no time to prepare his defense or the means to do it. He had no right to a lawyer, a jury, or a presumption of innocence. The court urged him again “to give glory to God” by confessing, but Spencer wouldn’t do it. Instead, he reportedly cursed himself and desperately denied all that he’d formerly confessed.

It was too late. The court called a series of witnesses who testified to his prior confessions. Spencer answered that “the witnesses did him wrong and charged things upon him which he had not spoken,” and he again denied committing the act.

But the die was cast. The court found him guilty of the “unnatural and abominable” crime and, by the rule of Leviticus 20:15, sentenced him and the sow to death.

After the verdict, the court demanded that Spencer acknowledge “his sinful and abominable filthiness,” but Spencer replied that “he would leave it to God, adding that he had condemned himself by his former confessions.” The court declared itself “abundantly satisfied” of his guilt, and it ordered his sentence carried out.

George Spencer was hanged on April 8, 1642. Paraded before a crowd that had gathered at the gallows, he was urged to acknowledge his crime, and he again denied it. As the noose was fitted to his neck, the poor man fully and desperately confessed again, but as the mob pressed him to speak further of his sin, he fell silent, until the sentence was carried out.

Here’s to a constant march of progress.

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