Opinion Right to remain constitutional

The warning’s genesis lies in the Fifth Amendment,which says that the government may not compel a person “in any criminal case to be a witness against himself.” The framers knew how easy it was to obtain a confession through torture or other forms of overt coercion,and how tempting it was for a government to use such tactics. To prohibit this,the founders said,in effect,that a person could not be forced to confess. The problem was trying to determine what counted as a coerced confession. The methods of police interrogation were so diverse,and the effects of isolation,intimidation and defendant ignorance so varied,that appellate courts found it difficult to determine whether a confession had been voluntary.

Finally,in 1966,the Miranda decision established a universal standard,requiring people in police custody to be read their rights before being questioned. Under most circumstances,failure to comply with this rule would lead to a suppression of the confession. However,contrary to common belief,the Miranda warning doesn’t confer rights; it simply reminds arrestees of the rights already granted to them by the Constitution. Moreover,talk-show hosts and television police dramas have led people to believe that before the police may interrogate or arrest a suspect,the Miranda warning must be given. That just isn’t the case. Neither arrest alone nor interrogation alone (if there has been no arrest) requires the warning to be given. Miranda applies only to in-custody questioning; a statement made to the police by a suspect not in custody is not subject to Miranda. Still,many supporters of Miranda exclusions argue that the rule hamstrings law enforcement. This is wrong,too.

When Miranda was decided,we envisioned wily defence lawyers using Miranda to suppress a confession,often the strongest foundation on which to build a conviction. Over time,however,police compliance became second nature,and the warning has become a routine part of post-arrest interrogation. Today,judges only rarely suppress confessions because the warning wasn’t given. This doesn’t mean that Miranda is irrelevant,or that there isn’t a place for exceptions. In 1982,while I was a judge on New York’s highest court,the Court of Appeals,we heard a case in which a man entered a supermarket with a loaded gun. When the police detained the man,they found him wearing an empty holster,and asked him the whereabouts of the weapon. After he showed the police where he had hidden the gun,he was charged with criminal possession of a weapon.

The lower courts held that he should have been given his Miranda warning before being asked the location of the gun. I wrote an opinion,later embraced by the Supreme Court,that created an “emergency exception” to Miranda,allowing the police to defuse a dangerous situation before administering the warning.

But resolving immediate emergencies is about as far as we should go in delaying the Miranda reading or creating exceptions to it. To open non-emergency exceptions,like the one proposed by the Obama administration,would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination. The Miranda rule enables us to protect a fundamental right without forcing the courts to allow the legitimacy of every confession to be proven before it is allowed into evidence. To compromise the rule would be counterproductive to the freedom we enjoy — a freedom that terrorists would like nothing better than to destroy.