ROMANIAN-AMERICAN UNIVERSITY LAW SCHOOL

MIRANDA WARNING-“PLEADING THE FIFTH”

Student: Anamaria-Corina Ghinea Group 716 Series B

Bucharest 2011

the Miranda rights do not have to be read in any particular order. However. intelligent and voluntary waiver of those rights. American English developed the verb Mirandize.2 1. ” As a result. and they do not have to precisely match the language of the Miranda decision. law following the 1966 Miranda v. meaning "read the Miranda warning to" a suspect (when the suspect is arrested). In Miranda v.. The concept of "Miranda rights" was enshrined in U. as long as they are adequately and fully conveyed. but may not use that person's statements to incriminate him or her in a criminal trial. which found that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for rape and kidnapping (Miranda was subsequently retried).S. and that anything the person says will be used against that person in court. they may still interrogate that person and act upon the knowledge gained. and that. The Miranda warning is not a condition of detention. the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"). Arizona Supreme Court decision. if law enforcement officials decline to offer a Miranda warning to an individual in their custody. and makes a knowing. the Court did create a set of guidelines that must be followed. be clearly informed that he or she has the right to remain silent. The ruling states: “ . but rather a safeguard against selfincrimination. prior to interrogation. . Introduction on Miranda Warning The Miranda warning (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. if he or she is indigent. the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning. as a result. Arizona. an attorney will be provided at no cost to represent her or him.. Notably. The Supreme Court did not specify the exact wording to use when informing a suspect of their rights.The person in custody must.

380 U. California. Griffin v. Article 31 provides for the right against self-incrimination. Under the Uniform Code of Military Justice. one will be appointed for you. a verbal waiver is not sufficient. Do you understand these rights as they have been read to you? ” The courts have since ruled that the warning must be "meaningful". Also because of various education levels.3 2. Anything you say or do can and will be held against you in the court of law. 609 (1965). Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF). Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. Since Miranda rights are simply an extension of the Fifth Amendment which protects against coercive interrogations. so if a defendant takes the stand at trial (thereby waiving his Fifth Amendment rights). neither the Fifth Amendment nor Miranda extend to prearrest silence. If you cannot afford an attorney.S. the prosecutor cannot punish them by commenting on their silence and insinuating that it is an implicit admission of guilt. 2010. but on June 1. The United States Navy and United States Marine Corps require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire. You have the right to speak to an attorney. Typical usage Every U. An arrestee's silence is not a waiver. Sometimes. Evidence has in some cases 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. . However. firm answers of "yes" are required. the same rule also prevents prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda rights immediately after arrest. which informs them of the charges and their rights. jurisdiction has its own regulations regarding what. The typical warning states: “ You have the right to remain silent. officers must make sure the suspect understands what the officer is saying. Generally. It may be necessary to "translate" to the suspect's level of understanding. must be said to a person arrested or placed in a custodial situation. and sign it. precisely. when defendants invoke their Fifth Amendment right against selfincrimination and refuse to testify or submit to cross-examination at trial. the prosecutor can attack his credibility with his prearrest silence (where he failed to turn himself in and confess immediately). the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who have not unambiguously invoked or waived their rights. and any statement given during questioning prior to invocation or waiving is admissible as evidence. so it is usually required that the suspect be asked if he understands his rights. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.S.

or otherwise infamous crime. Thus. “The gun is over there. a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. absolute and can be a bit more elastic in cases of “public safety. For instance. The arrest took place in a crowded grocery store. the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer. therefore. Quarles.” 4.” This is a limited and case-specific exception to the general rule of Miranda which allows certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there is great danger to public safety. “No person shall be held to answer for a capital. protects against abuse of government authority in a legal procedure. or in the Militia. In one case. "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education. . 3. liberty. Public safety exception The rule of Miranda is not.” The Supreme Court found that such an unadvised statement was admissible in evidence because "in a kaleidoscopic situation such as the one confronting these officers. The suspect nodded in the direction of the gun (which was near some empty cartons) and said. For example. nor be deprived of life. absolute and an exception exists in cases of “public safety. nor shall be compelled in any criminal case to be a witness against himself. except in cases arising in the land or naval forces. when in actual service in time of War or public danger. and asked him where the gun was.” The rule of Miranda is not. When the officer arrested the suspect. The public safety exception is derived from New York v. however. nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. grand juries and the phrase "due process" both trace their origin to the Magna Carta. where spontaneity rather than adherence to a police manual is necessarily the order of the day. which is part of the Bill of Rights. unless on a presentment or indictment of a Grand Jury. a deaf murder suspect was kept at a therapy station until he was able to understand the meaning of the Miranda warning and other judicial proceedings. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. he found an empty shoulder holster. or property. Pleading the Fifth Amendment The Fifth Amendment (Amendment V) to the United States Constitution.4 It has been discussed whether a Miranda warning — if spoken or in writing — could be appropriately given to disabled persons. the jurisprudential rule of Miranda must yield in “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. handcuffed the suspect.

Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence. began a practice of refusing to cooperate with interrogations. Historically. the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law. which protects the "right to remain silent. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England. In other Commonwealth of Nations countries like Australia and New Zealand. Oliver Cromwell's revolution overturned the practice and incorporated protections." This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands. and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.” 5. third of which was the right against selfincrimination in criminal cases. usually before hearing any charges) was considered guilty. These protections were brought to America by Puritans.5 without due process of law. without just compensation. Coercion and torture were commonly used to compel "cooperation. Self-incrimination The Fifth Amendment protects witnesses from being forced to incriminate themselves. forced self-incrimination. In the eighteenth century. and were later incorporated into the United States Constitution through the Bill of Rights. The Supreme Court has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths. who were at the time fleeing to the New World. and other kinds of coercion. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." Puritans. the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions." The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. nor shall private property be taken for public use. in response to a popular group of English citizens known as the Levellers. Originally. common law in England provided that coerced confessions were . To "plead the Fifth" is to refuse to answer a question because the response could provide selfincriminating evidence of an illegal conduct punished by fines. In the most famous case John Lilburne refused to take the oath in 1637. penalties or forfeiture. at common law. even a confession obtained by torture was admissible. Protection against self-incrimination is implicit in the Miranda rights statement.

and stopped only after the Supreme Court kept overruling convictions based on such confessions. the use of brutal torture to extract confessions was routine in some rural states as late as the 1930s. 609 (1965). "the prosecution may not use statements [. Griffin v. may render a confession involuntary and inadmissible. The common law rule was incorporated into American law by the courts. The Court held. Refusal to testify in a civil case While defendants are entitled to assert that right.. Miranda v.. Arizona (1966) was a landmark case involving confessions. 380 U.S. Ernesto Miranda had signed a statement confessing the crime. 7. Refusal to testify in a criminal case The Supreme Court ruled that the government cannot punish a criminal defendant for exercising his right to silence. Tennessee (1944). 6. Law enforcement responded by switching to more subtle techniques. However. the Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.” . The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. In Ashcraft v. California. by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense. during which time the defendant was held incommunicado.6 inadmissible.] stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. In Chambers v. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement. to be coerced. even if they do not involve physical torture. there are consequences to the assertion of the Fifth Amendment in a civil action. but the courts held that such techniques. In Griffin. the suspect had been interrogated continuously for thirty-six hours under electric lights. Florida (1940) the Court held a confession obtained after five days of prolonged questioning. but the Supreme Court held that the confession was inadmissible because the defendant had not been warned of his rights.

and whether in rem or in personam. the right to due process.. Justice Brandeis declared.”‘Failure to contest an assertion. is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that no person "shall be compelled. the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.’ In Baxter. they insisted on a Bill of Rights. which basically means that the government must follow written procedures during a trial and the right to be compensated if the government must take your property for a public project. There are legal rights to protect individuals. Some civil cases are considered "criminal cases" for the purposes of the Fifth Amendment.. Defendants are not obliged to help the government prove its case.. in any criminal case. The protection rests on a basic legal principle: the government bears the burden of proof.is considered evidence of acquiescence. freedom from being tried twice for the same crime. freedom from testifying against oneself (pleading the fifth). So.if it would have been natural under the circumstances to object to the assertion in question. ‘Silence is often evidence of the most persuasive character. In Boyd v US the US Supreme Court stated that "A proceeding to forfeit a person's goods for an offence against the laws. speaking for a unanimous court in the Tod case. Bibliography: ." 8. such as building a highway. You do not have to implicate yourself or be your own witness. though civil in form. The origins of the 5th Amendment can be traced to the origins for the entire Bill of Rights. The 5th Amendment protects a person from self-incrimination. the first ten amendments to the US Constitution.7 Mr.. The people who gathered in their states to ratify the Constitution suspected that the federal government might try to do things that it was not authorized to do. The importance of Miranda Warning and the Fifth Amendment The 5th Amendment guarantees the following rights: the right to be trialed by a grand jury for serious federal crimes. to be a witness against himself.

"This situation worsened in the 1580s and 1590s when the machinery of . "Counterterrorism and the Comparative Law of Investigative Detention" (Cambria 2009) 3) New York v. 428 (2000). The Bill of Rights. Akhil Reed (2005).justia. 84. Akhil Reed (1998).html Boyd v US Cornell University Law School.. 17 (2001) http://supreme.Fifth Amendment Lecture at Regent University. 532 U.S. "Bill of Rights from Cornell University Law School". 8) Amar. 681. 5) Prof. pp. Retrieved 2007-12-16.com/us/116/616/case. pp. Dan E. United States 530 U.. "Legal Problems". OCLC 7278140.. 2004.8 1) Miranda warning and The Fifth Amendment Bill of Rights http://en. the High Commission. 649. pp.. . in which a key weapon was the oath ex officio mero.. 467 U. 6) "Mirandize". was turned against Puritans . 649 (1984).org 2) Stigall.S.ISBN 1400062624.ISBN 0300082770. Retrieved 19 July 2009. 329. America's Constitution. James Duane and Officer George Bruch . 4) Dickerson v. Society and religion in Elizabethan England. The American Heritage Dictionary of the English Language. Reiner.ISBN 0816610304..wikipedia. Richard L. New Haven: Yale University Press. 9) Greaves..S." 10) 11) 12) Ohio v. New York: Random House. Retrieved 2007-09-18. Houghton Mifflin Company. Minnesota: University of Minnesota Press. Quarles. 7) Amar. Minneapolis. (1981). with its capacity for self incrimination . Refusal to take this oath usually was regarded as proof of guilt.

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