Miranda
December 2nd, 2006 at 21:46Are the famous Miranda warnings (”You have the right to remain silent,” and so on) the only constitutionally mandated public legal education? The U.S. Supreme Court said in 1966 that the police have to read these warnings to you if they take you into custody, else the police risk that any evidence they get out of you might not be admissible in court. That is, the Constitution of the United States demands that the police hold a basic “know your rights” session for you.
Although I suppose Miranda warnings aren’t technically “public” legal education, as they’re only for those in custody, the case is nevertheless an official recognition that most people have no idea about legal protections directly relevant to them. The Court, in Miranda, felt that your Fifth Amendment privilege to not incriminate yourself is so important that it’s ridiculous not to make sure that you know about it before you ruin your life by waiving it. Moreover, Miranda is an official recognition that legal education is empowering and transformative: “a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.”
In a later case (Schneckloth v. Bustamonte), the Supreme Court said it wouldn’t require any kind of warning before police could accept your consent to a search (which you are, in many cases, NOT required to give). The bottom line question in that case was whether a prosecutor would have to prove that a criminal defendant knew that he could say “no” to the cops. The Court said, “no,” the prosecutor didn’t have to prove that. That would be impractical, the Court felt. Justice Thurgood Marshall, dissenting from the majority’s decision, said he was forced to conclude, “with some reluctance, that, when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens . . . .” And, of course, Marshall is exactly correct: the Court and the police both know that not only are people not learning about the right to refuse consent from the police, they’re not learning it anywhere else either. In other words, they’re not really giving their “consent” in any meaningful way. As Marshall put it, “I can think of no other situation in which we would say that a person agreed to some course of action if he convinced us that he did not know that there was some other course he might have pursued.”
Yet, there’s evidence that this “public legal education” isn’t making much difference, anyhow. The Miranda warnings are a political chew toy, nowadays, and so statistics about how many people invoke their rights after hearing about them are hotly disputed. But nearly all of the studies show that invocation is uncommon, if not rare. Some show that nearly 90% of people waive their rights and confess. What does this mean? That the warnings aren’t strong enough? That they’re not understandable (see a recent law review article about the readability of Miranda warnings, discussed here)?
Or does it mean that “knowing” your rights has little to do with knowing how to use them? I think it just might. Interestingly, just a few years before Miranda, the Supreme Court proclaimed that “[n]o system worth preserving should have to fear that, if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his] rights.” From what we know about Miranda, confessions, and consent to search, we should begin to emphasize in our community legal education not just awareness, but exercise, too.
December 3rd, 2006 at 12:44
But how do you actually adequately inform people of their rights? I cannot think of any situation in which police should be able to interrogate a suspect without his lawyer being present. But if you go so far as to tell the suspect (1) he has the right to have his lawyer present, and (2) he has the right to a free lawyer if he doesn’t already have one, and he still consents to being interrogated sans lawyer, what more can be done? Insist he must have a lawyer present, whether he wants one or not? Perhaps criminal defense lawyers simply need to start marketing themselves better, getting the public to actually value their services. Although it might take a little more money flowing to public defender offices to make that happen, and we all know how popular an idea that would be.
December 3rd, 2006 at 17:59
Thanks—I need to do a better job explaining myself. The solution to the ineffectiveness of warnings like Miranda has very little to do with lawyers. I suppose if you could round up millions more lawyers and billions more dollars, then you could solve this with lawyers. But even if you could, it would not be worth it.
My point is that telling a suspect in custody what his rights are is hardly “go[ing] so far.” What more can be done? Well, ask yourself this question in the context of the HIV/AIDS crisis of Sub-Saharan Africa. Public health educators there have not given up after realizing (A) that it’s ridiculous to think they can put a doctor in every bedroom to wait until sex is imminent and then inform people how wise it is to wear a condom and (B) that just telling people to wear condoms is not working. Rather, they have set about to change behaviors and culture. They actually show people how to put on condoms, and then have people practice. They spread the idea of condom use as a societal norm. The same way we spread the duty to vote, to pay taxes, and indeed even to avoid taxation as much as possible.
We have chosen not to spread likewise the rights of suspects in custody. The government does not do sample interrogations, the way it gives out sample ballots, and there is no League of Women Voters analog giving out suspect-in-custody guides—as a matter of patriotic duty—the way the real LWV hands out voter guides.
There are alright reasons, for sure, why the rights of criminal suspects aren’t attracting this kind of sympathy. But the rights of tenants, children in divorce, veterans, and consumers are generally not attracting it either. To the extent that they are, though, my point is that just announcing rights is hardly going to be enough. You have to change norms and develop everyone’s collective personal confidence. That is real rights education.
December 3rd, 2006 at 22:42
But I really think that part of the reason why many suspects do not seek counsel at the first sign of trouble is the experiences they’ve had with lawyers has not been helpful. Having a guy come in and tell you to plead out because the case is hopeless makes it seem as if the lawyer isn’t really doing anything. It’s that sort of confidence in at least certain portions of the profession that makes people try the DIY approach. And they DIY approach leads to search consents and incriminating statements. People need to think of lawyers as electricians, not plumbers. The public education needs to clarify that (1) because you’re not a professional, there’s a good chance you’re not going to get it right, and (2) not getting it right is dangerous.
April 30th, 2007 at 7:54
[…] About a decade earlier, as the Supreme Court was lunging towards its decision in Miranda v. Arizona (which spelled out how the police should read you your rights before questioning you), Justice Arthur Goldberg put an even sharper end on this point: [N]o system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. . . . If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. Posted in Public Legal Education: My Thoughts | Leave a Reply […]