As the Mueller investigation continues to produce indictments, seeming to inch ever closer to the Oval Office, the Fifth Amendment and its protections against self-incrimination have been making news.
Will the president plead the Fifth, as suggested by his new attorney Rudolph W. Giuliani, to avoid answering questions posed by special counsel Robert S. Mueller III if an interview ever takes place? If so, how will Americans respond? For those who believe the president and his team are guilty of collusion, corruption or worse, it can be tempting to see “taking the Fifth” as an admission of guilt. Certainly that has been a common response to Trump attorney Michael Cohen’s assertion of his Fifth Amendment rights in the Stormy Daniels case.
But that misreading of the Fifth Amendment has consequences for regular Americans, for whom the amendment offers some protection against overzealous police questioning or the potentially coercive power of being interviewed in a police station.
Although most Americans couldn’t recite the text of the Fifth Amendment, those arrested are critically reminded of its protections, thanks to a Supreme Court decision that turns 52 next month. Without knowing the name or details of the case, most Americans who have watched a police or legal drama such as “NYPD Blue” or “Law & Order” know the familiar scene of police officers initiating an arrest by telling the accused that they 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 for you.”
Those TV viewers may know that this familiar warning conveys “Miranda rights.” But they are unlikely to know who Ernesto Miranda was or why this now-familiar recitation is so important to guard against suspects confessing to crimes that they did not commit.
Miranda was accused of a kidnapping and rape in 1963. The evidence against him was weak and contradictory at times — for instance, his recounting of events to law enforcement did not entirely match what the victim had told police. However, the police were able to extract a confession, which Miranda would later recant.
Miranda had not realized that he was not required to talk to the police. And in 1966, in Miranda v. Arizona, the Supreme Court overturned his conviction, holding that his Fifth Amendment right against self-incrimination had been violated, because his decision to speak with the police may not have been entirely voluntary. In its 5-to-4 decision, the court asserted that protections against self-incrimination should be in place in all settings, including during a police interrogation, and that prosecutors could not use a defendant’s statements made during police questioning if safeguards against self-incrimination were not in place.
Importantly, the Miranda decision did not give Americans new rights but merely provided for arrested individuals to be reminded of their existing Fifth Amendment right to not incriminate themselves. (The right to an attorney for an individual accused of a crime, even if one cannot afford a lawyer, provided by the Sixth and 14th amendments, stems from the seminal cases Gideon v. Wainwright  and Powell v. Alabama .)
From Day One, the Miranda ruling provoked blowback, starting with the dissenting justices, who wrote that the decision imposed an overly restrictive interpretation of the Fifth Amendment on police, which would hinder their ability to conduct interviews. In his dissent, Justice John M. Harlan observed that no legal precedent mandated the requirement to specifically remind suspects about their rights.
Other critics dubbed the Miranda decision “unprecedented” and contended that the court, rather than strictly interpreting the Constitution, had imposed its own activist, liberal policy.
But in the years since the decision, the effect of Miranda has been neither as great as supporters had hoped nor as terrible as opponents feared. Many of the decision’s proponents hoped that it would level the playing field between poor and wealthy suspects in police interrogations. Yet, that has not come to pass. Today, poorer individuals still fare worse than the rich do in moving through the justice system.
Counter to the fears of Miranda opponents, however, suspects still confess to crimes, and criminal convictions are still obtained. Indeed, police have become skilled at interrogations in a post-Miranda world. And subsequent Supreme Court decisions such as New York v. Quarles (1984) limited Miranda’s scope, narrowing its restrictions on police conduct.
Even today, issues continue to emerge as to what the Miranda warning demands of police and how it must be implemented, including whether juveniles or people with an intellectual disability fully understand their right not to talk to police.
The Supreme Court regularly revisits Miranda, including in recent decisions in Maryland v. Shatzer (2010), Florida v. Powell (2010) and Berghuis v. Thompkins (2010). As did earlier decisions like New York v. Quarles, these more recent rulings have chipped “away at the landmark ruling…while stopping short of permitting deliberate attempts to subvert it.” All three decisions suggest that under the leadership of Chief Justice John G. Roberts Jr., the court is moving toward broadening police interrogation rules and narrowing protections for suspects, thereby weakening Miranda.
While overturning convictions because police failed to adequately inform suspects of their Miranda rights may strike some Americans as freeing dangerous criminals over a technicality, maintaining this rule is essential to guard against false confessions — and it’s a requirement that police, with some exceptions, mostly support.
While false confessions may seem unlikely or hard to comprehend — after all, why would someone confess to a crime they didn’t commit? — according to the Innocence Project, 1 in 4 individuals who are wrongly convicted but later exonerated via DNA evidence either falsely confessed to the crime or made some incriminating statement.
A variety of factors account for such false confessions. These include limitations on the part of the person being questioned, such as immaturity or intellectual disability, but also an array of consequences of police behavior: lengthy questioning, police minimization tactics (such as providing a moral justification or “face-saving” excuse for having committed a particular offense) or the use of false evidence to indicate the suspect’s guilt. Even a belief in one’s innocence can lead to a false confession, because it can cause suspects to waive their Fifth Amendment right to not self-incriminate (“I’m innocent and have nothing to hide, so why not talk to the police?”). The result is innocent people landing in jail.
Would false confessions increase if Miranda were overturned? While it’s difficult to conclusively answer this question, according to the Marshall Project, police in the pre-Miranda era employed torture, manipulation, isolation and exhaustion to extract confessions from suspects. In Brown v. Mississippi (1936), the Supreme Court determined that a confession procured through torture (three African American male suspects had been tortured, including getting whipped, for days) must be excluded. Miranda guards against the return of such brutal interrogation tactics, which don’t service justice and simply produce new victims.
While the court may continue to chip away at and limit Miranda, its legacy endures (for now). And that’s a good thing.