An essay by Marcia Kiser
Most Americans consider the framers of the Constitution of the U.S to be an unusually far-sighted individuals. After all, when embarking on the great experiment, they produced a document so all encompassing that it has survived over 200 years with only twenty-seven amendments.
Unfortunately, many Americans still don’t know they have the right to remain silent or the right to an attorney if they are being questioned by the police. And until 1963, the police did little, if anything, to inform the individual of these protections afforded by the Constitution and the Bill of Rights.
In 1963 Ernesto Miranda, a seriously disturbed indigent Mexican with sexual fantasies, was accused of kidnapping and raping a mildly-retarded 18-year old woman. During questioning, Miranda was ‘persuaded’ to confess. At the trial, his lawyer sought to have the confession suppressed, and in 1968, the Supreme Court ruled the confession could not be used as Ernesto Miranda had not been informed of his rights. In reversing the decision of the lower court, the Supreme Court simultaneously reversed decisions on other cases with similar circumstances.
The Supreme Court wrote in 1966, “(We) sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended.” The Court also handed what was to be included in the warning in the language of legalese.
Thomas Lynch, then California Attorney General, called a meeting of the district attorneys in the state to discuss the new Miranda warning. Lynch selected Harold Berliner, then district attorney of Nevada County and an old family friend, and Doris Maier, a deputy attorney general of long standing, to write a concise, simple warning.
Berliner wrote first, “You have the right to remain silent.” He and Maier proceeded to outline the familiar warning known now as the Miranda warning. Berliner, with a background in publishing, took it a step farther, obtaining the addresses of every law enforcement agency in the country and sold thousands of his wallet-sized cards, resulting in today’s consistency between the various law enforcement agencies and jurisdictions.
Chief Justice William Rehnquest stated in July 2000 when upholding the 1968 ruling, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national heritage.”
Recently, Berliner has revised the statement he prints to include “her” as appropriate, as in “You have to right to speak with an attorney and have him or ‘her’ present”, showing that not even Miranda is written in stone.
There are two forms of Miranda one simple and one to cover all contingences.
The simpler version:
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 speak to an attorney, and to have an attorney present during any questioning. If you can not afford a lawyer, one will be provided for you at government expense.
The longer, more complex Miranda:
You have the right to remain silent and refuse to answer questions. Do you understand?
Anything you do say may be used against you in a court of law. Do you understand?
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
A landmark court, a Supreme Court ruling, and a new procedure for police all to ensure American citizens are made aware of their inalienable rights as citizens. Unfortunately, those rights can still be trodded on by some police departments through out the country.
And Ernesto Miranda, who lent his name to the warning? Although many critics feared that crime would run rampant, that did not prove to the be case, especially in Ernesto’s. After his first conviction was thrown out on the basis of his confession, he was tried a second time and convicted of the kidnapping and rape. He later died in a barroom brawl in 1976.
Essay submitted by Marcia Kiser, May 2003.
