Thanks to television crime dramas, most of us know that, under the Fifth Amendment, we have the constitutionally protected “right to remain silent.”
Perhaps that protection isn’t so iron-clad, however. Last week the U.S. Supreme Court trimmed back further the broad implications of its 1966 decision in the coerced confession of a Phoenix rapist and thug named Ernesto Miranda. The justices’ ruling raises the question of whether our “Miranda rights” are truly protected by the Constitution.
Deciding a 1997 case involving police from Oxnard, Calif., the justices ruled that cops can force an unwilling person to talk so long as what that person says is not used to prosecute them. More aggressive police questioning of witnesses — short of torture — now appears to be allowed.
Another result of further weakening of rights under Miranda could aid the government’s efforts to prosecute terrorism. After the Sept. 11, 2001, terrorist attacks, federal agents investigating leads sought information from potential witnesses, not necessarily to locate suspects to turn over.
The rights to be informed of one’s right to remain silent and to have an attorney present during questioning, under the Fifth Amendment’s ban against self-incrimination have been under somewhat steady erosion since a more liberal Supreme Court decided Miranda vs. Arizona 37 years ago.
If the constitutional roots of Miranda are indeed found within the Fifth Amendment, then perhaps law-enforcement advocates are right when they say that Miranda rights only apply to evidence that could be produced against a suspect at trial.
But even if police sincerely do not intend at the time of an interrogation to seek prosecution of a witness whom they are trying to force into talking, who’s to say that later on that witness might become a suspect himself? Will what was gained from the coercion be allowed at that later time?
Those who value civil liberties have a right to be concerned about last week’s decision, as well as the fact that the high court has agreed to hear three Miranda cases this fall.
What the justices need to make clear is whether Miranda rights are truly constitutionally inviolate as they are applied to anyone questioned by police, or only specifically apply to what evidence can be brought into court against those who become actual defendants.