The Constitution reserves many rights for those suspected of crime. One of
the fears of the Framers was that the government could act however it wished by
simply saying an individual was a suspected criminal. Many of the rights in
the Constitution and the Bill
of Rights, such as habeas corpus, the right to remain silent, and the right
to an attorney, are designed to ensure that those accused of a crime are
assured of those rights.
Police were able to take advantage of the fact that not everyone knows their
rights by heart. In fact, it is likely that most citizens could name a few of
their rights as accused criminals, but not all of them. The police's position
was that if the accused, for example, spoke about a crime without knowing that
they did not need to, that it was the person's fault for not invoking that
right, even if they did not know, or did not remember, that they had that
This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto
Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded
woman. He was brought in for questioning, and confessed to the crime. He was
not told that he did not have to speak or that he could have a lawyer present.
At trial, Miranda's lawyer tried to get the confession thrown out, but the
motion was denied. In 1966, the case came in front of the Supreme Court. The
Court ruled that the statements made to the police could not be used as
evidence, since Miranda had not been advised of his rights.
Since then, before any pertinent questioning of a suspect is done, the
police have been required to recite the Miranda warning. The statement,
reproduced below, exists in several forms, but all have the key elements: the
right to remain silent and the right to an attorney. These are also often
referred to as the "Miranda rights." When you have been read your rights,
you are said to have been "Mirandized."
Note that one need not be Mirandized to be arrested. There is a difference
between being arrested and being questioned. Also, basic questions, such as
name, address, and Social Security number do not need to be covered by a
Miranda warning. The police also need not Mirandize someone who is not a
suspect in a crime.
As for Ernesto Miranda, his conviction was thrown out, though he did not
become a free man. The police had other evidence that was independent of the
confession, and when Miranda was tried a second time, he was convicted again.
After release from prison, Miranda was killed in a barroom brawl in 1976.
The following is a minimal Miranda warning, as outlined in the
Miranda v Arizona case.
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 speak to an attorney,
and to have an attorney present during any questioning. If you cannot afford a
lawyer, one will be provided for you at government expense.
The following is a much more verbose Miranda warning, designed to cover
all bases that a detainee might encounter while in police custody. A detainee
may be asked to sign a statement acknowledging the following.
You have the right to remain silent and refuse to answer questions. Do you
Anything you do say may be used against you in a court of law. Do you
You have the right to consult an attorney before speaking to the police and to
have an attorney present during questioning now or in the future. Do you
If you cannot afford an attorney, one will be appointed for you before any
questioning if you wish. Do you understand?
If you decide to answer questions now without an attorney present you will
still have the right to stop answering at any time until you talk to an
attorney. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you
willing to answer my questions without an attorney present?