Civil Rights and Civil Liberties – Fifth Amendment – Shh! The Right to Remain Silent
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Civil Rights and Civil Liberties – Fifth Amendment – Shh! The Right to Remain Silent


>>The part of the Fifth Amendment to the United
States Constitution that we’ll be discussing this week guarantees that you shall not be
compelled in any criminal case to be a witness against yourself. The historical origins of
this right run deep into British and European history, going back at least to the Inquisition,
when many were forced to change their religion or face torture and death. There are, however, other more modern theoretical
reasons that ground the right against self-incrimination. One is simple procedural fairness: for there
to be a fair and competitive trial against an individual, there has to be this basic
notion of non self-incrimination. Another is rooted in the nature of adversarial criminal
justice itself. Here the idea is that it is the state or government’s job to investigate,
arrest, gather evidence, and prosecute you without your help. The burden of proof, therefore,
is on the prosecution, and it needs to do the heavy lifting when it seeks to take your
life or property. A more practical concern, though, which explains
much of the origins and development of the cases we’re reading in this section, stems
from racially charged trials in the south during the 1920’s and 1930’s. In these cases
individual confessions were often brutally beaten out of innocent black suspects. In
overturning these cases, the Court in the 1930’s and 40’s, held to a bare minimum understanding
of the self-incrimination right: beating a confession out of you violated that right,
but the court didn’t go much past that. It was not until the Warren Court began its
foray into the criminal procedure provisions of the Bill of Rights in the 1960’s that the
5th Amendment self-incrimination clause took on a new and controversial life that we’re
still dealing with today. The Warren Court moved from ensuring statements to police were
adequate and reliable (free of coercion) to creating a set of deterrent or prophylactic
rules to protect the right. Moved by revelations about the common use of coercive interrogation
(beatings and torture) that were widespread throughout many police departments, the Court
decided that there needed to be a set of first-line procedures for supervising police interrogation
and preventing bad confessions. The interrogation room was necessarily secret, and judges could
only guess what went on — during the Miranda cases, for example, the Court referred to
police manuals which detailed how police could use the “third degree” to elicit confessions.
Moreover, the Court was bothered that so many convictions were the result solely of confessions,
lacking even a rudimentary investigation and gathering of evidence. To fix this, in 1966 the Court in Miranda
v. Arizona laid out the now-famous Miranda warnings that police would now have to use
in most situations. The Miranda rules are famous: 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 an attorney; if you cannot afford an attorney, one will be provided to you. Do you understand
these rights? Ideally, then, this recitation will ensure that even the simplest man or
woman would know that he or she had a right to remain silent. The Miranda decision was controversial from
the get go. Police felt handcuffed by the new rules: because so many convictions did
indeed rely on the confession, arguments abounded that the guilty will go free. Controversy
would continue. When do the Miranda rights kick in? When someone is in custody, yes,
for the most part, but not always. Some of the cases we’re reading in this section bring
out these fine distinctions of the actual application of Miranda in real world — and
the dangerous and serious situations that police face everyday.
The Court is still largely supportive of Miranda, but many conservative justices have argued
that its procedural nature means that it shouldn’t be seen as a right in and of itself. As a
result, at times the Court has ruled that the actual Miranda statement need not be read
verbatim. More recently, the Court has even ruled that to avail yourself of the right
to remain silent, you have to affirmatively invoke that right, creating a potentially
uncomfortable situation where to remain silent, you need to speak. As you read these cases think about the following
issues: How necessary is the Miranda warning to protecting
self-incrimination? Do you think Miranda is a right like other
enumerated rights, or simply a procedural device?
Should Miranda be read at any point in your dealings with law enforcement, or only when
you’re arrested? Should a violation of Miranda result in throwing
out your confession? These are hard questions and hard cases to
read and think about — but they form the current basis for one of your most fundamental
rights.

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