Note to Congresscritters: reading someone his rights informs him of his rights. It does not grant them, for he already has the right to remain silent, &c. You’d almost suspect we’d written this down somewhere in a kind of founding document and refined it through the courts.
All refusing to mirandize a suspect does is foul up the eventual prosecution. You should have to know this if you’re a Representative.
16 comments
May 4, 2010 at 10:52 am
Scott Madin
But Dana! The Constitution wasn’t supposed to apply to brown people!
May 4, 2010 at 10:54 am
zunguzungu
So often, though, what seems like simple ignorance is actually tactically shrewd. For example, changing the meaning of “Mirandize” to reflect a sense of rights as being granted by magically uttering those words (as opposed to being written down in a universally applicable document) is much more in line with the exact practice of state power which people like McCain consistently support: optional and discretionary, something the state can choose to offer rather than be constrained by.
May 4, 2010 at 11:35 am
Erik Lund
I support the deep frying of many things, but I draw the line at mushrooms.
May 4, 2010 at 12:27 pm
elizardbreath
But you see, if we don’t inform prisoners of their rights, we may be able to prevent them from exercising those rights, which is exactly what we want. It’s okay that terrorists have rights, so long as the rights aren’t exercised or enforceable.
May 4, 2010 at 1:19 pm
Captain Haddock
“[R]eading someone his rights informs him of his rights. It does not grant them[.]”
I think that’s only partially true. The Miranda warning is a prophylactic measure designed to protect someone’s constitutional rights, but it’s not at all clear that the prophylactic is itself constitutionally mandated. That is, it’s a pragmatic response to a state of affairs in which people in custody are often deprived of their rights. As an illustration, the Supreme Court recently decided in Florida v. Powell that police can give a non-standard Miranda warning so long as it conveys the basic principles of a Miranda warning. The Court also decided in Shatzer v. Maryland that police can re-question a suspect 14 days after that suspect invoked his Miranda rights.
That’s not to say you’re completely wrong. But there is a distinction between the constitutional rights themselves and the prophylactic measure that is designed to protect those rights. How that distinction is drawn is a matter of significant debate.
May 4, 2010 at 1:22 pm
ben
Haddock, I don’t see how you’re disagreeing with Dana at all. The rights exist independently of the prophylaxis. Characterizing the Miranda warning as a prophylaxis would be inept otherwise.
May 4, 2010 at 1:22 pm
Captain Haddock
I should add, though, that what I just says doesn’t mean that Sen. McCain and Rep. King are right. Under existing Supreme Court precedent, Mr. Shahzad must be read some version of a Miranda warning.
May 4, 2010 at 1:23 pm
Captain Haddock
Ben: After re-reading Dana’s post, I think you’re right.
May 4, 2010 at 2:35 pm
kathy a.
dear lord. we had a major presidential candidate who thinks miranda should be, like, optional, depending on the circumstances. holy. cow.
May 4, 2010 at 4:02 pm
dana
Capt. Haddock, that’s exactly right. Miranda is an important tool that ostensibly protects someone’s rights, by making them aware of those rights and by providing for a way to punish police & prosecutors who violate rights. But the rights are there whether announced or not, which would mean that had law enforcement followed McCain’s advice, the suspect’s confession probably… would be disallowed.
Gee.
May 4, 2010 at 4:31 pm
Captain Haddock
A certain number of conservatives have always believed that Miranda was wrongly decided and that criminal suspects should not be informed of their rights at all. One crucial part of that argument is that the Miranda prophylaxis prevents the discovery of relevant evidence as to the suspect’s guilt or innocence. I think the most defensible position one could ascribe to Sen. McCain and Rep. King, however, does not have to do with the suspect’s guilt or innocence as to the underlying crime. Rather, the most defensible position is that a Miranda warning could stop a suspect from giving information as to other possible terrorist attacks. Such information would, of course, lead to further criminal liability — for conspiracy, for example — but the emphasis is not on the underlying crime for which the suspect is being held. (I am, of course, thinking about the Times Square bomber, who clearly had an underlying crime distinct from conspiracy or possession/construction of illegal weapons.)
But what strikes me about Sen. McCain and Rep. King is that they seem to want their cake and eat it too. The defensible position I just talked about might make sense if the investigators were simply to say, “Okay, we won’t Mirandize the suspect, we’ll get as much information as possible, and we’ll just accept that no information we get from the suspect can be used in a future criminal prosecution. We also accept the monetary loss from a future civil rights action by the suspect.” That even makes some strategic sense because they seem to have pretty decent independent evidence of the underlying crime, and that evidence would not be excluded from trial. But Sen. McCain and Rep. King (if they’ve even thought this far) seem to simply want to ignore Miranda in the terrorism context. They want to be able to interrogate at will and then prosecute using every statement obtained from interrogation. This, ultimately, is just sitting back on the original argument that Miranda was wrongly decided. And without a few more conservatives justices on the Court, that position is simply untenable.
May 4, 2010 at 4:40 pm
kathy a.
it’s a sad day when glenn beck sounds like the voice of reason regarding a fundamental constitutional protection.
May 4, 2010 at 5:09 pm
Scott Madin
Aren’t they basically just agreeing here with the Bush administration’s contention terrorism suspects were automatically “enemy combatants,” and subject to military rather than criminal jurisdiction?
A cynic might point out that we now have an actual president who, apparently, thinks the executive branch can lawfully order the assassination of American citizens…
May 4, 2010 at 10:52 pm
Capn Midnight
“But Sen. McCain and Rep. King (if they’ve even thought this far) seem to simply want to ignore Miranda in the terrorism context.”
I suspect they want to ignore more than Miranda– they want to ignore the right against self-incrimination and the right to counsel. The rights exist independently of the “warning” about them, but I’m guessing that McCain et al. are using the warning as shorthand for the rights themselves. What they want is for this set of defendants to be tried with as few constitutional protections as possible. And then killed.
May 5, 2010 at 3:43 am
dana
They’re taking advantage of the popular understanding that you don’t have the rights until the L&O detectives read them to you. Thus, the Obama administration is granting Shahzad privileges, etc.
May 9, 2010 at 7:10 pm
merl
I can’t believe I actually had to explain that to my wife. When she told me Miranda didn’t apply to Federal law I about shit my pants.