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Miranda warning is now imbedded in legal system

Published Oct. 13, 2005

Twenty-five years ago, on June 13, 1966, the U.S. Supreme Court created the famous "Miranda warning." And still it stands, a staple of daily police work and television drama. The Miranda warning has survived the crusades of Presidents Richard Nixon and Ronald Reagan, the diminution of its reach by the court itself under Chief Justices Warren Burger and William Rehnquist, and even an act of Congress passed to overrule it.

"Prior to any questioning," Chief Justice Earl Warren wrote for a 5-4 majority in the case, a suspect in police custody "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Whenever a suspect indicates that he wishes to speak with an attorney, "the police may not question him."

Miranda vs. Arizona was a classic example of Warren Court jurisprudence: sweeping language only tenuously connected to the facts of the specific case and intended to reduce the imbalance of power between rich and poor, strong and weak, government and individual.

Ernesto Miranda, 23, a poor ninth-grade dropout, was convicted of kidnapping and raping an 18-year-old woman. He had been identified by his victim. There was nothing outrageous about the police interrogation. But one thing was missing, Miranda's lawyer argued. Miranda should have been told of his right to remain silent and talk to a lawyer.

The Constitution's Fifth Amendment says a person may not be "compelled in any criminal case to be a witness against himself." Traditionally, that had applied only to legal compulsion, such as a subpoena. But the court said the protection also applied to the pressures of police interrogation _ during which suspects could have a lawyer present.

Now, in 1966, Ernesto Miranda was seeking an explicit requirement that the police tell suspects about their right to keep quiet and get a lawyer.

Miranda was actually a fairly modest step. The Miranda warning resembled warnings already used by the FBI. The scope was limited: Police were not required to tell suspects what they were suspected of doing, what the punishment might be, how long they might be held or anything else.

As it turned out, Miranda had little effect on confessions. Suspects were still talking and still being convicted on the basis of what they said. Ernesto Miranda was tried again without the confession, convicted again and imprisoned. He was stabbed to death in a bar fight in 1976.

Nonetheless, Miranda became a symbol of lawlessness to many people. In 1968, Nixon campaigned against the court, and Congress passed the Omnibus Crime Control and Safe Streets Act, which purported to overturn Miranda and apply more flexible rules on the use of confessions as evidence.

It was 1984 before the court created the first real exception to the Miranda warning. Because of "public safety," the court allowed police to ask a suspect they had just chased down, "Where's the gun?"

By then, however, Miranda had become so incorporated into police practices that Reagan's own first appointee, Justice Sandra Day O'Connor, dissented from this abridgment of it. "Miranda is now the law," she wrote, "and the court has not provided sufficient justification for blurring its now clear strictures."

More exceptions followed, as the justices showed new tolerance about police practices. Yet as 1990 closed, the court actually reaffirmed and even expanded Miranda.

Sweeping pronouncements of new constitutional rights don't happen now, but relics such as Miranda are still around, too much a part of the legal fabric to be overruled.

Neil Skene is publisher of Congressional Quarterly, from which this is reprinted.