Wednesday, December 5, 2007

I'll take the 5th

The 5th Amendment

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, without due process of law; nor shall private property be taken for public use, without just compensation.

You will note that although the amendments to the constitution are loaded with the rights of the people, the Supreme Court has ruled that these are the only rights the government must advise you.

Any fan of prime time crime dramas knows the Miranda advisement by heart but few people know the story behind the famous warning.

Ernesto Miranda was arrested in Phoenix Arizona for Sexual Assault. He confessed to robbery and attempted rape. At trial the prosecution used the confession as the foundation of their case. The case was appealed and the conviction was overturned on a 5-4 decision. He was tried again, this time the prosecution used physical evidence and witness testimony and secured another conviction. He served 11 years in prison. He was killed in a bar fight in 1976. Ironically the man arrested for the murder, exercised his Miranda rights.

Chief justice Earl Warren made two critical statements in the majority decision.

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”


“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.”

This was a 5-4 decision with some heavy words from the dissenting justices regarding judicial legislation. In dissent, Justice Harlan stated "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities." Harlan also quoted former Justice Robert H Jackson This is Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

In my 11 years of law enforcement, I am always amazed that more often then not, people wave their rights and talk themselves in to a trip to jail. There have been some interesting ways creative officers have tried to avoid the Miranda warning. My favorite is the “Good Christian Burial.”

Officers had arrested a suspect in the kidnapping and probable murder of a young girl. They were careful not to ask the suspect any questions. As they were driving the suspect to jail, they began talking between themselves loud enough for the suspect to hear them. They commented how it was too bad the parents of the girl couldn’t give her a good Christian burial. After laying this guilt trip on the suspect, he told them where the girl’s body could be located. This “confession” was used and he was convicted. Of course, the conviction was overturned which forced the family to endure another trial before they could be assured the man who killed their child would go to prison.

What do I think? I vote every election for my congressional representatives. It is their job to write the law. When one branch of government overreaches it authority, the delicate balance of powers established in the Constitution is skewed and we make the distinctive rolls of the government moot.

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