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Sarah Aalders

Criminal Justice Research Paper


The Miranda Rights
CJ-1010-F16-Minichino
December 8th, 2016

The Miranda rights, weve all heard them read watching our favorite re-run of Law and
Order, Cops or any other television series or movie featuring some kind of criminal
investigation. It goes without saying that most of us may even be able to quote them by memory,
but in case you are reading this and you are one of those people who cant, the Miranda Rights
are as follows:
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 an attorney. If you cannot afford an attorney, one will be
provided for you. Do you understand the rights I have just read to you? With these rights in
mind, do you wish to speak to me?
If you or someone you know should ever find yourself in police custody, these rights
should always be read to you first and foremost. It is after they are read that you can decide if
you want to speak to the officer. Your attorney may, in most instances, advise you against
speaking to the police without them present. A defendants choice to not incriminate themselves
by speaking or not speaking with the officer, cannot incriminate him/her alone in the committing
of the crime, and cannot be looked at as a sign of guilt by a Jury in a criminal trial. The basis of
the Miranda Rights, according to the text, is to guarantee protection against self-incrimination.,

in accordance with the Fifth Amendment of our Constitution. (Criminal Justice In Action, page
237, Larry K Gaines & Roger Leroy Miller)
Because the Miranda Rights are considered a warning, they are only required when a
suspect is taken into custody, and/or questioning in a situation where the right to leave is not
presented.
The right to be heard would be, in many cases, of little avail if it did not comprehend the
right to be heard by counsel. (Justice Sutherland, Powell V. Alabama 287 U.S 45, 68-69 (1932)).
In 1963, Ernesto Miranda was arrested and charged with kidnapping and rape. After being picked
from a lineup and questioned by police, Ernesto Miranda signed a statement confessing to the
crimes of which he was charged. After being convicted and charged with a sentence of 20-30
years in prison by the Arizona Supreme Court, Miranda appealed the decision with the basis that
he had not been advised he had the right to counsel, or that anything he said could or would be
used against him. According to the United States Constitution, amendments four-eight cover, in
just, a civilians rights in these matters.
To give a brief over-view of Amendments four-eight of our Constitution, they have been
included below. Please note, that all are related to being charged criminally, in a manner of
speaking.
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to
be seized.
Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public
use, without just compensation.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the common law.
Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
(hrlibrary.umn.edu/education/all_amendments_usconst.htm)

As we can learn more about the Constitutional Amendments that protect our rights at
citizens, it is understandable why Esrnesto Miranda would see fit to appeal his case. First, he was
not advised that he had the right to counsel, and second, due to not having an attorney present, he
was subject to self-incrimination. According to the text, The Court overturned Mirandas
conviction, stating that police interrogations are, by their very nature, coercive and therefore
deny suspects their constitutional right against self-incrimination by forcing them to confess.
Consequently, any person who has been arrested and placed in custody must be informed of his
or her right to be free from self-incrimination and to be represented by counsel during any
interrogation. (Criminal Justice In Action, Chapter 7 Police and the Constitution, page 239).
Due to Ernesto Mirandas appeal and his overturned conviction, the Court established the

Miranda Warning. The Miranda Warning is required to be read anytime a suspect is in custody
prior to any questioning taking place. This ensures the suspect is aware of all of their
constitutional rights, of which they may waive or invoke at any point in the proceedings.
Now, as it was mentioned, you may be a Law and Order binge watcher like myself. If this
is the case, you know that law enforcement will do what they can in order to get around the
Miranda Warning. The moment a suspect invokes their right to an attorney is the moment their
questioning must come to a halt, which therefore puts a strain on any investigation. Once the
right to an attorney, according to the sixth amendment, is invoked, the suspect in custody is not
required to say anything without their attorney present. Which in most cases means that their
cooperation is limited. According to page 241 in the text, there are multiple strategies law
enforcement officers use to interrogate without being required to read the suspect their Miranda
rights, or in other words, coerce the suspect to voluntarily waive their Miranda rights. According
to Richard A. Leo, a criminologist at the University of San Francisco Las School, law
enforcement uses the following strategies in interviews: (Criminal Justice In Action, Chapter 7
Police and the Constitution, page 241)

Conditioning Strategy
De-Emphasizing Strategy
Persuasion Strategy

In order for the conditioning strategy to work, law enforcement agents must create an
environment in which the suspect is encouraged to think positively towards the one doing the
interrogating. This allows for suspect cooperation. It is making the guest feel welcome.
Offering a beverage, talking about things not pertaining to the case in order to build trust in the

relationship, making the suspect comfortable. This, according to Leo, lowers the suspects anxiety
level and eventually, can lead to a confession.
De-Emphasizing takes a different approach. I have witnessed this play be used multiple
times on Law and Order, as the officers try and downplay the importance of the Miranda rights,
hoping that the suspect will also view them as unimportant and waive their right to counsel.
The persuasion strategy is just that, an officer persuading the suspect to waive their
rights. In most cases, it is made out that unless they do not have an attorney present their side of
the story will never truly come to light. Otherwise, with an attorney present in defense of the
accused, the only side of the story ever to be heard will be that of the victim involved. Anyone
not in this position realizes that an attorney is working on behalf of the defense of the accused,
but some suspects in custody feel that if they do not share their side of the story, nobody can help
them.
What many fail to realize is that multiple cases have been over turned due to
downplaying the importance of the Miranda rights. Weve all seen it on television in one form or
another. An officer is about to get the suspect to talk due to one of the three above strategies and
out of nowhere pops their attorney, which is usually followed by the comment my client will
not be saying anymore and you have nothing to hold them on. And out they walk. We have all
seen officers on hit television series doing anything they can to get the information out of the
suspect, whether they twist the facts or not. I myself, have witnessed many episodes where
detectives cannot interview someone without their attorney as a suspect, but, theyve also been a
victim, therefore police can interview them regardless. The law always finds a way around the
law.

In an article done by Richard Rogers and Eric Y. Drogin (Court Review. 2015, Vol. 51
Issue 4, p150-156. 7p), they explain that the Miranda rights is, but a simple statement that
requires a simple understanding. Although the Miranda rights are a formality, detailing the rights
of the suspect in custody, isnt it also their right to understand? To me, this caught my attention.
The article talked about how they must take out words that cannot be understood without a high
school education, otherwise referred to as difficult vocabulary. The consensus of the article was
that the Miranda warning must be short and to the point. That it must decrease readingcomprehension demands, shorten warnings such as silence, evidence against you, attorney, free
legal services, continuing right, etc. and remove difficult vocabulary. So, lets review the
Miranda warning again:
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 an attorney. If you cannot afford an attorney, one will be
provided for you. Do you understand the rights I have just read to you? With these rights in
mind, do you wish to speak to me?
Most would argue that as long as you have completed school through about the 10th
grade, you should be able to answer that you understand the rights as they are read to you.
However, there are probably many who would argue that those with mental diseases, a lower
than 10th grade education, or someone who is otherwise impaired may not be able to understand
the rights as they have been read.
Another avenue that the Miranda warning takes, is that in a case where a juvenile is in
custody for a crime. Juveniles should always be interviewed with a parent or guardian present,
and should still be read their Miranda rights, which allows them the right to an attorney.
According to the St. Johns Law Review, Ensuring Protection of Juveniles Rights: A Better Way

of Obtaining A Voluntary Miranda Waiver, As a consequence, various federal courts apply


different standards to determine whether a juveniles waiver of rights is voluntary, and therefore
admissible at trial, even despite the failure of parental notification. (88 St. John's L. Rev. 561).
The Juvenile Delinquency Act was created to provide juveniles with the protection to ensure
uniformity, according to the article, different approaches employed by federal courts fail to
produce consistent and just outcomes. The Fourteenth Amendment of the Constitution of the
United States guarantees that no state shall deprive any person of life, liberty, or property,
without due process of law: nor deny to any person within its jurisdiction the equal protection of
the laws. This should extend to all citizens, including juveniles, and it does, ever since the case
of In re Gault.
In re Gault was a case of a fifteen-year-old boy who was arrest for making lewd
telephone calls. No parents were notified that he was taken into custody, and the boy was never
notified of his rights to an attorney, to remain silent, and that anything he said could and would
be used against him in a court of law. The trial court admitted his statements into evidence and he
was committed to a juvenile institution. Once the Supreme Court got wind of the case, they
reversed the judgement of the lower court and warranted that the fifteen-year-old boy should be
given the same rights as any other American, and allowed the same constitution safeguards for
due process, the right to an attorney, etc. The Miranda warning should have been read before
questioning the juvenile, and they were not. The Court realized that in dealing with a juvenile
Our Miranda rights are extremely important as they honor the Constitution of the country
we live in, the express our rights as citizens and they should be honored. But we, as citizens,
need to be educated on what our rights are through both the Constitution of our great country,
and the Miranda rights associated with any criminal arrest.

When I was 17 years old, my high school boyfriend and I were hanging out at a local
park. We were making out with no lewd or illegal behavior in the car, and it was close to, but not
past, park curfew. We saw not one, but two, police cars pull up behind us, and immediately
following flash lights shining through each side of the cars windows, we heard a knock, and I
unrolled my window. We were asked to step out of the vehicle, and the officers began to question
our intentions, our behavior and they asked to take a look inside the car. The car was my fathers,
and without question and without proper instruction they began to search the vehicle. There was
nothing to find as I was not doing anything of an illegal nature, they asked us to leave the park.
When I explained what had happened to my dad, a huge advocate for the Constitution, he
explained to me that technically, they violated my rights with an illegal search. I did not give
them permission as they did not ask a question, it was more of a demand in the first place. This
gave me greater insight to my rights that I wasnt particularly aware of before.
It wasnt until I was 18 that I fully understood how the court system worked. I was
employed by a company that worked with drug, alcohol and sex addiction and the treatment that
was appointed through the courts. Ever Thursday for a year I would go and sit in Pleasant Grove
Cities court room alongside Judge Bullock, who would court order treatment to our facility.
During this time, it was unaware to me that the same high school boyfriend I had was using
drugs and abusing alcohol himself. It wasnt until he was arrested at a check point on Halloween
weekend that I fully understood how important the Miranda rights, the right to an attorney, for
the opportunity for one to be appointed to you, and the right to remain silent truly were. My now
long time ex-boyfriend was offered a plea in abeyance21, which indicated that if he was to do all
of the mandated court ordered treatment, paying of fines, etc., that the charge would be dropped.

He was truly lucky that the charges he received that night would not be following him for the rest
of his life.
Our Miranda rights are just that, our rights, when under criminal investigation if we are
not read the rights that have been laid out for us, we are not getting a just and fair chance. We are
facing self-incrimination, and that is not the American way.

Bibliography
1. Criminal Justice In Action
Wadsworth/Thomas Learning
2013

2. Justice Sutherland
Powell V. Alabama
287 U.S 45

3. http://hrlibrary.umn.edu/education/all_amendments_usconst.htm
All Amendments to the United States Constitution
All Amendments to the United States Constitution
4. Richard Rogers and Eric Y Drogin
Court Review. 2015, Vol. 51 Issue 4
Page 150-156. 7p.

5. St. Johns Law Review, 2014/07/01, Vol. 88 p 561


88 St. Johns L. Rev 561
2014 St. Johns Law Review Assn