ROMANIAN-AMERICAN UNIVERSITY

LAW SCHOOL

MIRANDA WARNING-“PLEADING THE FIFTH”

Student: Anamaria-Corina Ghinea

Group 716

Series B

Bucharest 2011
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1. Introduction on Miranda Warning

The Miranda warning (also referred to as Miranda rights) is a warning that is required
to be given by police in the United States to criminal suspects in police custody (or in a custodial
interrogation) before they are interrogated to inform them about their constitutional rights.
In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating
statement by a suspect will not constitute admissible evidence unless the suspect was informed of
the right to decline to make self-incriminatory statements and the right to legal counsel (hence
the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those
rights. The Miranda warning is not a condition of detention, but rather a safeguard against self-
incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an
individual in their custody, they may still interrogate that person and act upon the knowledge
gained, but may not use that person's statements to incriminate him or her in a criminal trial.

The concept of "Miranda rights" was enshrined in U.S. law following the 1966 Miranda
v. Arizona Supreme Court decision, which found that the Fifth Amendment and Sixth
Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for
rape and kidnapping (Miranda was subsequently retried).

The Supreme Court did not specify the exact wording to use when informing a suspect of
their rights. However, the Court did create a set of guidelines that must be followed. The ruling
states:

“ ...The person in custody must, prior to interrogation, be clearly informed that he

or she has the right to remain silent, and that anything the person says will be used
against that person in court; the person must be clearly informed that he or she has the
right to consult with an attorney and to have that attorney present during questioning,
and that, if he or she is indigent, an attorney will be provided at no cost to represent her
or him. ”

As a result, American English developed the verb Mirandize, meaning "read the
Miranda warning to" a suspect (when the suspect is arrested).

Notably, the Miranda rights do not have to be read in any particular order, and they do
not have to precisely match the language of the Miranda decision, as long as they are adequately
and fully conveyed.
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2. Typical usage

Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to
a person arrested or placed in a custodial situation. The typical warning states:

“ You have the right to remain silent. Anything you say or do can and will be
held against you in the court of law. You have the right to speak to an attorney. If
you cannot afford an attorney, one will be appointed for you. Do you understand
these rights as they have been read to you? ”

The courts have since ruled that the warning must be "meaningful", so it is usually
required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes"
are required. Some departments and jurisdictions require that an officer ask "do you
understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but on
June 1, 2010, the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who
have not unambiguously invoked or waived their rights, and any statement given during
questioning prior to invocation or waiving is admissible as evidence. Evidence has in some cases
been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of
arresting officers to provide the warning in the arrestee's language.

Also because of various education levels, officers must make sure the suspect
understands what the officer is saying. It may be necessary to "translate" to the suspect's level of
understanding. Courts have ruled this admissible as long as the original waiver is said and the
"translation" is recorded either on paper or on tape.

Generally, when defendants invoke their Fifth Amendment right against self-
incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot
punish them by commenting on their silence and insinuating that it is an implicit admission of
guilt. Griffin v. California, 380 U.S. 609 (1965). Since Miranda rights are simply an extension of
the Fifth Amendment which protects against coercive interrogations, the same rule also prevents
prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda
rights immediately after arrest. However, neither the Fifth Amendment nor Miranda extend
to prearrest silence, so if a defendant takes the stand at trial (thereby waiving his Fifth
Amendment rights), the prosecutor can attack his credibility with his prearrest silence (where he
failed to turn himself in and confess immediately).

Under the Uniform Code of Military Justice, Article 31 provides for the right against
self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department
of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it.
The United States Navy and United States Marine Corps require that all arrested personnel be
read the "rights of the accused" and must sign a form waiving those rights if they so desire; a
verbal waiver is not sufficient.
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It has been discussed whether a Miranda warning — if spoken or in writing — could be

appropriately given to disabled persons. For example, "the right to remain silent" means little to
a deaf individual and the word "constitutional" may not be understood by people with only an
elementary education. In one case, a deaf murder suspect was kept at a therapy station until he
was able to understand the meaning of the Miranda warning and other judicial proceedings.

3. Public safety exception

The rule of Miranda is not, however, absolute and an exception exists in cases of “public
safety.” This is a limited and case-specific exception to the general rule of Miranda which allows
certain unadvised statements (given without Miranda warnings) to be admissible into evidence at
trial when they were elicited in circumstances where there is great danger to public safety.

The public safety exception is derived from New York v. Quarles, a case in which the
Supreme Court considered the admissibility of a statement elicited by a police officer who
apprehended a rape suspect who was thought to be carrying a firearm. The arrest took place in a
crowded grocery store. When the officer arrested the suspect, he found an empty shoulder
holster, handcuffed the suspect, and asked him where the gun was. The suspect nodded in the
direction of the gun (which was near some empty cartons) and said, “The gun is over there.” The
Supreme Court found that such an unadvised statement was admissible in evidence because "in a
kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than
adherence to a police manual is necessarily the order of the day, the application of the exception
we recognize today should not be made to depend on post hoc findings at a suppression hearing
concerning the subjective motivation of the police officer. Thus, the jurisprudential rule
of Miranda must yield in “a situation where concern for public safety must be paramount to
adherence to the literal language of the prophylactic rules enunciated in Miranda.” The rule of
Miranda is not, therefore, absolute and can be a bit more elastic in cases of “public safety.”

4. Pleading the Fifth Amendment

The Fifth Amendment (Amendment V) to the United States Constitution, which is part
of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its
guarantees stem from English common law which traces back to the Magna Carta in 1215. For
instance, grand juries and the phrase "due process" both trace their origin to the Magna Carta.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
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without due process of law; nor shall private property be taken for public use, without just
compensation.”

5. Self-incrimination

The Fifth Amendment protects witnesses from being forced to incriminate themselves.
To "plead the Fifth" is to refuse to answer a question because the response could provide self-
incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture.

Historically, the legal protection against self-incrimination was directly related to the
question of torture for extracting information and confessions.

The legal shift away from widespread use of torture and forced confession dates to
turmoil of the late 16th and early 17th century in England. Anyone refusing to take the oath ex
officio mero (confessions or swearing of innocence, usually before hearing any charges) was
considered guilty. Suspected Puritans were pressed to take the oath and then reveal names of
other Puritans. Coercion and torture were commonly used to compel "cooperation." Puritans,
who were at the time fleeing to the New World, began a practice of refusing to cooperate with
interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case
and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced
self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the
practice and incorporated protections, in response to a popular group of English citizens known
as the Levellers. The Levellers presented The Humble Petition of Many
Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-
incrimination in criminal cases. These protections were brought to America by Puritans, and
were later incorporated into the United States Constitution through the Bill of Rights.

Protection against self-incrimination is implicit in the Miranda rights statement, which

protects the "right to remain silent." This amendment is also similar to Section 13 of the
Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries
like Australia and New Zealand, the right to silence of the accused both during questioning and
at trial is regarded as an important right inherited from common law, and is protected in the New
Zealand Bill of Rights Act and in Australia through various federal and state acts and codes
governing the criminal justice system.

The Supreme Court has held that "a witness may have a reasonable fear of prosecution
and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who
otherwise might be ensnared by ambiguous circumstances."

The Fifth Amendment limits the use of evidence obtained illegally by law enforcement
officers. Originally, at common law, even a confession obtained by torture was admissible. In the
eighteenth century, common law in England provided that coerced confessions were
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inadmissible. The common law rule was incorporated into American law by the courts. However,
the use of brutal torture to extract confessions was routine in some rural states as late as the
1930s, and stopped only after the Supreme Court kept overruling convictions based on such
confessions.

Law enforcement responded by switching to more subtle techniques, but the courts held
that such techniques, even if they do not involve physical torture, may render a confession
involuntary and inadmissible. In Chambers v. Florida (1940) the Court held a confession
obtained after five days of prolonged questioning, during which time the defendant was held
incommunicado, to be coerced. In Ashcraft v. Tennessee (1944), the suspect had been
interrogated continuously for thirty-six hours under electric lights.

Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto

Miranda had signed a statement confessing the crime, but the Supreme Court held that the
confession was inadmissible because the defendant had not been warned of his rights.

The Court held, "the prosecution may not use statements [...] stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. Custodial interrogation is initiated by law
enforcement after a person has been taken into custody or otherwise deprived of his freedom of
movement.

6. Refusal to testify in a criminal case

The Supreme Court ruled that the government cannot punish a criminal defendant for
exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of
guilt from the defendant's refusal to testify in his own defense. Griffin v.
California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional under the
federal constitution a provision of the California state constitution that explicitly granted such
power to prosecutors.

7. Refusal to testify in a civil case

While defendants are entitled to assert that right, there are consequences to the assertion
of the Fifth Amendment in a civil action.

The Supreme Court has held that “the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to testify in response to probative
evidence offered against them.”
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Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence
is often evidence of the most persuasive character.”‘Failure to contest an assertion...is considered
evidence of acquiescence...if it would have been natural under the circumstances to object to the
assertion in question.’

In Baxter, the state was entitled to an adverse inference against Palmigiano because of the
evidence against him and his assertion of the Fifth Amendment privilege.

Some civil cases are considered "criminal cases" for the purposes of the Fifth
Amendment. In Boyd v US the US Supreme Court stated that "A proceeding to forfeit a person's
goods for an offence against the laws, though civil in form, and whether in rem or in personam,
is a "criminal case" within the meaning of that part of the Fifth Amendment which declares that
no person "shall be compelled, in any criminal case, to be a witness against himself."

8. The importance of Miranda Warning and the Fifth Amendment

The 5th Amendment guarantees the following rights: the right to be trialed by a grand
jury for serious federal crimes, freedom from being tried twice for the same crime, freedom from
testifying against oneself (pleading the fifth), the right to due process, which basically means that
the government must follow written procedures during a trial and the right to be compensated if
the government must take your property for a public project, such as building a highway.
You do not have to implicate yourself or be your own witness. There are legal rights to protect
individuals.
The origins of the 5th Amendment can be traced to the origins for the entire Bill of Rights, the
first ten amendments to the US Constitution. The people who gathered in their states to ratify the
Constitution suspected that the federal government might try to do things that it was not
authorized to do. So, they insisted on a Bill of Rights. The 5th Amendment protects a person
from self-incrimination. The protection rests on a basic legal principle: the government bears the
burden of proof. Defendants are not obliged to help the government prove its case.

Bibliography:
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1) Miranda warning and The Fifth Amendment Bill of Rights http://en.wikipedia.org

2) Stigall, Dan E., "Counterterrorism and the Comparative Law of Investigative Detention"
(Cambria 2009)

3) New York v. Quarles, 467 U.S. 649 (1984).

4) Dickerson v. United States 530 U.S. 428 (2000).

5) Prof. James Duane and Officer George Bruch - Fifth Amendment Lecture at Regent
University.

6) "Mirandize". The American Heritage Dictionary of the English Language. Houghton

Mifflin Company. 2004. Retrieved 2007-09-18.

7) Amar, Akhil Reed (1998). The Bill of Rights. New Haven: Yale University Press.
pp. 84.ISBN 0300082770.

8) Amar, Akhil Reed (2005). America's Constitution. New York: Random House.
pp. 329.ISBN 1400062624.
9) Greaves, Richard L. (1981). "Legal Problems". Society and religion in Elizabethan
England. Minneapolis, Minnesota: University of Minnesota Press. pp. 649,
681.ISBN 0816610304. OCLC 7278140. Retrieved 19 July 2009. "This situation
worsened in the 1580s and 1590s when the machinery of ... the High Commission, was
turned against Puritans ... in which a key weapon was the oath ex officio mero, with its
capacity for self incrimination ... Refusal to take this oath usually was regarded as proof
of guilt."
10) Ohio v. Reiner, 532 U.S. 17 (2001)
11) http://supreme.justia.com/us/116/616/case.html Boyd v US
12) Cornell University Law School. "Bill of Rights from Cornell University Law
School". Retrieved 2007-12-16.