You Have the Right to Remain Constitutional

[groovedaddy]

SINCE its adoption after a landmark 1966 Supreme Court decision, the Miranda warning has worked its way into not only everyday police procedure, but American culture as well — even if you’ve never been arrested, you probably know the words “anything you say can and will be used against you.”

But as the Obama administration considers carving out an exception to the Miranda rules for terrorism suspects in the wake of the arrest of Faisal Shahzad, the Connecticut man accused of being the Times Square bomber, it’s important to note how little most people understand what Miranda does and doesn’t mean.

First and foremost, the failure to give a Miranda warning does not result in a case being dismissed. It only results in the inability of the police to use a confession and its fruits in evidence. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions.

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 kind of abuse, the founders said, in effect, that a person could not be forced to confess.

http://www.nytimes.com/2010/05/13/opinion/13wachtler.html?th&emc=th

[RaleighNCDUer]

1. but we all know it's OK to torture terrorists, so this doesn't really

change anything, right?

[groovedaddy]

2. Clearly not. n.t

[markpkessinger]

3. Confusing the warning with the thing of which the warning speaks

Excellent point, groovedaddy. But there's another dimension to this that, so far, I've not seen anyone really pick up on in the blogosphere. Simply based on the way media pundits talk about the issue, there seems to be another widespread misapprehension that the reading of the Miranda advisory to a suspect functions as some kind of trigger whereupon "Miranda rights" are conferred to a suspect. But this is a total fallacy. Miranda, as you point out, merely advises the suspect of his/her rights under the Fifth and Sixth Amendments, and serves as a mechanism to ensure that such rights are respected. The suspect is already in full and complete possession of those rights from the moment he is detained. And no amount of monkeying with the timing or exceptions to the reading of the Miranda warning changes that. In fact, nothing short of a Constitutional Amendment could change that.

What's even more ironic about all this, given that the discussion is taking place in the wake of the would-be Times Square bomber, is that the Times Square bomber very recently went through the naturalization process, and thus would have studied the Constitution and the Bill of Rights. Thus, he would likely have been well aware of his rights under the Constitution; more aware, in fact, than many native-born Americans.

I was actually quite disappointed to see the Obama Administration engage in this particular bit of political posturing. Obama and Holder are certainly well aware that this is a non-issue in terms of substance, and were obviously trying to mollify critics on the right. You would think by now they would have figured out that the right has no interest in being mollified nor even of having their concerns addressed. Their sole raison d'etre at this point is to try to gain political advantage by inflicting political wounds.

[midnight]

4. I don't think we ought to suggest that tinkering with our Miranda rights is posturing.

I do think we should stop this nonsense in it's tracks, and not allow each and every police district the power to decide who gets miranda rights and who doesn't.

[Name removed]

5. Deleted message

Message removed by moderator. Click here to review the message board rules.

[rusty_rebar]

6. Just never talk to the police.

It is a bad idea all around, it can not possibly help you.

I always ask the police: "Is this a consensual encounter, or am I being detained?"

If it is consensual, I say "Well then, have a nice day"

If I am being detained, I say "I am reserving ALL of my rights, including my right to be secure in my possessions, and my right to remain silent, I do not consent to any searches, that is all I have to say to you."

It is really that easy.