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Musings on Miranda

dan-dewoskin-new-photoby Daniel DeWoskin
President, DeKalb Bar Association

As we prepare to celebrate Law Day here in DeKalb County this month, it occurred to me that as time goes by, we often lose sight of the importance legal developments and procedural safeguards that protect our civil rights. These may be codified laws or decisions in a particular case, but we tend to take them for granted once we have learned them, argued them, and come to know them so well that we expect the court to know our position before we begin to speak at a motions hearing. Miranda v. Arizona is just such a decision.

The Miranda warning, which was derived from this case fifty years ago, is based upon the U.S. Supreme Court ruling that if the police intend to use the statement of a suspect in police custody against that suspect, they must first advise him of his rights under the fifth and sixth amendments of the U.S. Constitution. In the event that law enforcement fails to adhere to this requirement, such incriminating statements may be excluded from evidence at trial. Most often, the Miranda warning includes stating that the suspect has the right to remain silent and refuse to answer questions, that anything the suspect says can be used against him in a court of law, that the suspect has the right to an attorney and if he cannot afford an attorney, one will be appointed to him by the court.

When I refer to Miranda as something we take for granted, I mean that we have been watching this warning read on television shows and movies for years and years. Children know it from seeing it in popular culture. As far as television is concerned, this warning is typically read with the sound of handcuffs being placed on an arrestee. In actuality, this scenario is unusual. The arresting officer may read Miranda at the time of arrest or may choose to do so later in the process, when the officer intends to actually ask questions after the suspect is in custody. Best practices usually, if not always, dictate that a waiver by the suspect should be in writing to reduce the strength of an argument that a warning was not read, or that the suspect did not in fact waive these rights prior to speaking with law enforcement.

We have been watching this warning read on television shows and movies for years and years. Children know it from seeing it in popular culture.”

In any event, we take the Miranda warning for granted. Just because you cannot turn on a television without seeing the Miranda warning recited in a reality show, news show, or fictional cop drama, that does not mean that it is understood by the population or that it is no longer a crucial factor of criminal justice and procedure. Often, people who are charged with driving under the influence have questions about why the officer did not read them Miranda warnings. In most of these situations, it is because the officer’s investigation is over at the point these drivers are arrested, with the exception being the implied consent warning pertaining to the test of the drivers’ blood, breath, or urine. Implied consent includes its own very specific protocols and recitation. .

The point here is that officers do not need to read the Miranda warning every time a person is arrested. When working with the Fulton County Sheriff’s department, I made several arrests and never once read anyone Miranda. I also never asked anyone any questions about their case, the charges against them, or much of anything for that matter. At those times, I was executing an arrest warrant and had no connection to any investigation into any underlying case or charge. Still, many arrestees would complain as we transported them to jail that we had failed to read them Miranda.

People may have heard of the Miranda warning, but that does not mean they understand it. Clearly, this does not mean that they grasp its significance. However, the requirement that law enforcement read Miranda prior to eliciting incriminating statements is as important now as it ever was. For whatever inconvenience it may be to law enforcement, this safeguard exists because we do not merely pay lip service to Constitutional rights in this country. In the same way that criminal defendants must acknowledge what rights they waive when entering guilty pleas and the same way that courts are not to presume that defendants know they have a right to a jury trial, we do not assume that suspects know their rights because we have all seen them read on television.

In his own 2016 Law Day Proclamation, President Barack Obama stated:

The Court’s decision in Miranda v. Arizona affirmed that “Equal Justice Under Law” is more than just words, but a cornerstone of our nation’s legal system — the idea that no matter who you are or where you come from, you will be treated equally and afforded due process. As a nation, we should remain steadfastly committed to this principle. In light of the strong opinions that people across the country have regarding immigrants, both who have legal status and without, we must not lose sight of the Constitutional protections afforded to everyone who may be confronted by law enforcement.

Over the years, the Miranda warning has been tested in various cases before the U.S. Supreme Court and other lower courts, but the premise upon which it is based remains intact. The Miranda warning has not become obsolete and it will not be anytime in the near future. This is the natural course of American jurisprudence and it is what advances, defines, and refines our law. It is inspiring to note that Miranda is alive and well, that we collectively preserve its importance.

(1) 384 U.S. 436 (1966)

(2) The White House, Office of the Press Secretary. (2016). LAW DAY, U.S.A., 2016 [Press release]. Retrieved from

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