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You heard of the Miranda Warning? When caught? Most Common Misunderstandings

The Miranda warning comes from one of the biggest legal cases of the 1960s when Ernesto Miranda was arrest in 1963

Thanks to countless arrest scenes in TV and movies, it’s one of the best-known applications of the Fifth Amendment.

But what you don’t know about Miranda could be more significant than you think.

Common misunderstandings about Miranda warnings

National Constitution Center

By Scott Bomboy

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Ernesto Miranda arrest photo, 1963

Last year, there was a big debate about the Miranda warning and Boston terror suspect Dzhokhar Tsarnaev.

Federal investigators said after Tsarnaev’s detention that he wouldn’t be read his Miranda rights under something called the “public safety exemption.”

Under the exemption, police can interrogate a suspect without advising him or her of Miranda rights if they believe the suspect could have information about an imminent threat to public safety.

That exemption allowed investigators to interrogate Tsarnaev while in custody, without informing Tsarnaev of his rights to a lawyer and his right to stay silent.

According to an AP report, after 16 hours of questioning, a representative of the United States Attorney’s office read Tsarnaev his Miranda warning, and the suspect stopped talking to investigators.

The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges.

His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent.

(Miranda had signed a confession that acknowledged that he understood his legal rights.)

The Supreme Court overturned Miranda’s conviction in 1966 in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

There are common misunderstandings about what Miranda rights are, and how they can protect someone under criminal investigation.

First, there isn’t one official Miranda warning that is read to a suspect by a police officer.

Each state determines how their law enforcement officers issue the warning. The Supreme Court requires that person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned.

Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest.

At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

In the case of Dzhokhar Tsarnaev, investigators probably felt they had enough evidence to charge him and win a case in court without any of the information Tsarnaev volunteered before he was read his rights.

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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In Court Today: Challenging the Drone Killings of Three Americans

The New York Times published a powerful op-ed yesterday by Nasser Al-Aulaqi about the killing of his grandson Abdulrahman, in which he asked, “The government has killed a 16-year-old American boy. Shouldn’t it at least have to explain why?”

In a federal court in Washington today, we are arguing that the government must explain and account for its actions.

Without accountability, what’s to stop the government from doing whatever it wants?

This is why the Fifth Amendment requires that the state cannot deprive citizens of their “life, liberty, or property, without due process of law.” Yet when American drone strikes killed three U.S. citizens in Yemen in 2011 that’s exactly what it did.

Josh Bell, Media Strategist, posted  on ACLU this July 19, 2013

The ACLU and the Center for Constitutional Rights have filed a lawsuit challenging the constitutionality of the U.S. government’s killing of Anwar Al-Aulaqi, Samir Khan, and two weeks later Abdulrahman Al-Aulaqi.

The Justice Department has asked the court to dismiss the case, arguing that “political questions” and national security issues bar judicial review. But in fact, the courts have a crucial role to play in judging the legality of the government’s actions.

The lawsuit was filed on behalf of Nasser Al-Aulaqi, the father and grandfather of Anwar and Abdulrahman Al-Aulaqi, and Khan’s mother, Sarah. As the ACLU’s Hina Shamsi, one of attorneys who will appear today, said:

The Constitution does not allow government officials to kill Americans based on vague and shifting legal criteria and evidence never presented to a court. The government has argued that the court should step aside when the executive branch conducts extrajudicial killings of American citizens abroad, but the Supreme Court has ruled that the judiciary has an essential role to play in protecting civil liberties even in the context of actual military conflict. The Constitution’s protections are never more crucial than when the government seeks to deprive people of their lives.

In 2010, following press reports that the U.S. government had put Anwar Al-Aulaqi on a “kill list,” the ACLU and CCR filed a previous lawsuit representing his father challenging the government’s authority to do so.

The court dismissed that suit on the grounds that the elder Al-Aulaqi did not have legal standing to challenge the targeting of his son, and that the request for before-the-fact judicial review raised non-justiciable “political questions.” The current lawsuit raises different legal questions because it was filed after the killings happened.

And so today, the question of whether the case should be heard on its merits is before a court. As CCR’s Pardiss Kebriaei, who will also argue in court today, said:

The government’s position is unprecedented and extraordinary. It claims the most consequential power a government can exercise against its own citizens – the power to take life without due process – and asserts that the courts should have no role at all in reviewing its actions, even after the fact, even when the killings are off any battlefield. The court should exercise its constitutionally mandated role and review our clients’ fundamental claims. It is for the court to determine the legality of the government’s actions, not for the government simply to assert it.

Today in a Los Angeles Times op-ed, former federal judge John J. Gibbons echoed that sentiment. He represented Guantánamo Bay detainees in the landmark 2004 Supreme Court case Rasul vs. Bush.

I argued that the president’s position presented a profound threat to the role of the courts in safeguarding the rule of law, and that the prisoners were entitled to due process, including judicial examination of the government’s reasons for holding them. The Supreme Court agreed, reaffirming that an asserted “state of war is not a blank check” for the executive branch when civil liberties are at stake.

Just as the Supreme Court ruled that judicial review was required in that case, it is essential in the targeted killing case being argued today – especially since it is about life and death.

Learn more about developments in the targeted killing program in the year since we filed the lawsuit. 

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February 2023

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