Miranda warning
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The Miranda warning is given by police in the United States to suspects whom they have arrested and intend to question. The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona. They are a means of protecting a criminal suspect's Fifth Amendment right not to be subjected to coerced self-incrimination (see right to silence). This principle of law, though under different names, has been adopted in some other jurisdictions.
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Miranda v. Arizona
Main article: Miranda v. Arizona
In 1963, Ernesto Miranda was arrested for robbery, kidnapping, and rape. He was interrogated by police and confessed. At trial, prosecutors offered only his confession as evidence and he was convicted. The Supreme Court ruled (Miranda v. Arizona, 384 U.S. 436 (1966)) that Miranda was intimidated by the interrogation, and that he did not understand his right to not incriminate himself, nor his right to have counsel. On this basis, they overturned his conviction. Miranda was later convicted in a new trial, with witnesses testifying against him, and other evidence presented. He served 11 years.
Miranda rights
The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, they did set down a set of guidelines which must be followed. The ruling states:
- "...The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a attorney and to have that attorney present during interrogation, and that, if he is indigent, an attorney will be provided at no cost to represent him."
As a result, the American English vocabulary has acquired a new verb, "to Mirandize", meaning to read to a suspect his or her Miranda rights (when that suspect is taken into custody for the purpose of interrogation).
Typical Miranda warning
Though every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when they are arrested, the typical warning is as follows:
- You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost.
The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. An arrestee's silence is not a waiver. Evidence has been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.
Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be nessessary to "translate" to the suspects level of understanding. Courts have ruled this admissable as long as the original waiver is said and the "translation" is recorded either on paper or on tape.
The right of a juvenile to remain silent without his or her parent or guardian present is also extended in some jurisdictions.
Indiana and a few other states add the sentence, "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989).
California, and many other states, also add the following.
Do you understand the rights I have just read to you? With these rights in mind do you wish to speak to me?
A yes answer to both completes the waiver. A no to either invokes the right.
Confusion regarding the Miranda warning
Due to the prevalence of American television programs and motion pictures in which the police characters are constantly reading a suspect his or her rights, it has become an expected element of arrest procedure. However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station or when detained. Arrests can occur without questioning and without the Miranda warning — although if the police do change their mind and decide to interrogate the suspect, the warning must be given then. Furthermore, if public safety warrants such action, the police may ask questions prior to a reading of the Miranda warning, and the evidence thus obtained can sometimes still be used against the defendant.
Miranda does not protect detainees from standard booking questions: name, date of birth, address, and the like. Also, persons suspected of driving under the influence do not have Miranda rights prior to blood alcohol tests.
Currently there is a question about corrections and Miranda. If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that s/he may be charged with while in custody.
Equivalent rights in other countries
Most authoritarian countries neither acknowledge nor allow a right to remain silent, nor a right to legal counsel.
In France, any person brought in police custody (garde à vue) must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, that of discussing the case with an attorney. Witnesses against whom there exists indictments, or that are cited as suspects, cannot be heard under oath (and thus do not risk prosecution for perjury), must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects (any person against which exist plausible causes of suspicion) must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.
The right against self-incrimination originated in England and Wales, therefore a caution of the form
- You have the right to remain silent, but anything you do say will be taken down and may be used in evidence against you.
was used. The Criminal Justice Act 1994 amended (some say abolished) the right to silence by allowing inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (in other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he or she refused to provide the explanation during the time of the Police questioning. The jury is also free not to make such an inference). The new caution is
- You do not have to say anything but it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you say may be given in evidence.
It is important to note that the caution in England and Wales does not explicitly require that a suspect affirms that he or she understands the caution, and many law enforcement staff do not ask this to prevent a recalcitrant suspect from delaying the investigation by wilfully claiming not to understand the caution.
In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:
a) to be imformed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and be informed of that right: and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
(See: R. v. Hebert [1990] 2 S.C.R. 15)
Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - protection against self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by a independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.
Thus, under Canadian law, a person charged of a crime effectively has the same protections under the law as are provided by Miranda.