You Have the Right to Remain Constitutional
By SOL WACHTLER
Published: May 12, 2010

SINCE its adoption after a landmark 1966 Supreme Court decision, the Miranda warning has worked its way into not only everyday police procedure, but American culture as well — even if you’ve never been arrested, you probably know the words “anything you say can and will be used against you.”
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But as the Obama administration considers carving out an exception to the Miranda rules for terrorism suspects in the wake of the arrest of Faisal Shahzad, the Connecticut man accused of being the Times Square bomber, it’s important to note how little most people understand what Miranda does and doesn’t mean.

First and foremost, the failure to give a Miranda warning does not result in a case being dismissed. It only results in the inability of the police to use a confession and its fruits in evidence. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions.

The warning’s genesis lies in the Fifth Amendment, which says that the government may not compel a person “in any criminal case to be a witness against himself.” The framers knew how easy it was to obtain a confession through torture or other forms of overt coercion, and how tempting it was for a government to use such tactics. To prohibit this kind of abuse, the founders said, in effect, that a person could not be forced to confess.

The problem was trying to determine what counted as a coerced confession. Well into the 20th century, police officers would beat suspects, or keep defendants in isolation for days, to get a confession. The methods of police interrogation were so diverse, and the effects of isolation, intimidation and defendant ignorance so varied, that appellate courts found it difficult to determine afterward whether a confession had been truly voluntary.

Finally, in 1966, the Miranda decision established a universal standard, requiring people in police custody to be read their rights before being questioned. Under most circumstances, failure to comply with this rule would lead to a suppression of the confession.

However, contrary to common belief, the Miranda warning doesn’t confer rights; it simply reminds arrestees of the rights already granted to them by the Constitution. Moreover, talk-show hosts and television police dramas have led people to believe that before the police may interrogate or arrest a suspect, the Miranda warning must be given. That just isn’t the case. Neither arrest alone nor interrogation alone (if there has been no arrest) requires the warning to be given. Miranda applies only to in-custody questioning; a statement made to the police by a suspect not in custody is not subject to Miranda.

Still, many supporters of Miranda exclusions argue that the rule hamstrings law enforcement. This is wrong, too.

When Miranda was decided, I was a young lawyer who had served in the military police and was chairman of the Committee on Public Safety of the Nassau County Board of Supervisors — in short, law enforcement was a big part of my life. I, along with members of the county police force, the prosecutor’s office and others in the law enforcement community, was frightened by the decision. Would arresting officers ever remember to read the entire warning? We envisioned wily defense lawyers using Miranda to suppress a confession, often the strongest foundation on which to build a conviction.

Over time, however, police compliance became second nature, and the warning has become a routine part of post-arrest interrogation. Today, judges only rarely suppress confessions because the warning wasn’t given, and acquittals on the basis of such a suppression are even rarer. In fact, because it clarifies more than inhibits the arrest and interrogation process, law enforcement agencies nationwide support Miranda.

The truth is, we may have even reached the point where defendants are so familiar with the warning that they forget its meaning; indeed, the penal system is filled with prisoners who confessed or incriminated themselves despite having been read their rights.

This doesn’t mean that Miranda is irrelevant, or that there isn’t a place for exceptions. In 1982, while I was a judge on New York’s highest court, the Court of Appeals, we heard a case in which a man was said to have entered a supermarket with a loaded gun. When the police detained the man, they found him wearing an empty holster, and they asked him the whereabouts of the weapon. After he showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon.

The lower courts held that he should have been given his Miranda warning before being asked the location of the gun. I wrote an opinion, later embraced by the Supreme Court, that created an “emergency exception” to Miranda, allowing the police to defuse a dangerous situation before administering the warning.

But resolving immediate emergencies is about as far as we should go in delaying the Miranda reading or creating exceptions to it. To open non-emergency exceptions, like the one proposed by the Obama administration for terrorism suspects, would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination.

The Miranda rule strikes a delicate balance, enabling us to protect a fundamental constitutional right without forcing the courts to allow the legitimacy of every confession to be proven before it is allowed into evidence. To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy as Americans — a freedom that terrorists would like nothing better than to destroy.

Sol Wachtler is a professor of constitutional law at Touro Law School and former chief judge of the New York Court of Appeals.