The “constitutional” right to remain silent is so frequently referenced on television shows, in media reports, and in public and private discourse, that most people likely take it for granted as an immutable right. Yet nowhere in the U. S. Constitution does that phrase appear. The proclamation of this “fundamental” right, moreover, is of relatively recent origin. The phrase is part of a specific warning that the Supreme Court (in the 1966 case Miranda v. Arizona) announced must be read to criminal suspects in order to ensure that they are meaningfully informed of their Fifth Amendment privilege--before they provide self-incriminating statements while in custody. If the police fail to say the specific warning (or use some “other fully effective means”), any adverse statements may be barred from evidence at the suspect’s trial. As such, the “right to remain silent” is not so much a constitutional right as it is a judicial “procedural safeguard” designed to ensure that suspects are not unfairly deprived of the Fifth Amendment privilege that keeps them from being “compelled in any criminal case to be a witness against himself.” Although decried in some circles as unfairly handcuffing police authorities in their effort to fight crime, the “Miranda Warning” has survived relatively intact for nearly fifty years, becoming, as Chief Justice Rehnquist noted in a 2000 decision, “embedded in routine police practice to the point where the warnings have become part of our national culture.” Its widespread and now long-standing acceptance is a product of evolving social mores and attitudes.
In its 1966 Miranda decision, the Supreme Court noted that the advent of modern custodial police interrogation had brought with it an increased concern about confessions obtained by coercion. As a consequence of the general public’s fears and concerns in response to terrorist events in the past decade or so, however, we may see a practical relaxation of this “fundamental” right to remain silent, at least in some circumstances. The Supreme Court has carved out a “public safety” exception to the Miranda Warning requirement, forgiving the absence of a warning where “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.” In 2009, there was much public criticism of the FBI’s decision to read the Christmas Day bomber suspect Miranda rights after a short period of questioning. Last year, the FBI adopted new rules allowing un-Mirandized interrogation of terror suspects in what it deemed “exceptional cases" where investigators "conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat." If this or similar practices are tested at the Supreme Court, would the Court agree that Miranda rights can be ignored for the purpose of gathering intelligence about unrelated, non-immediate threats? The answer likely will be affected by the frequency of terrorist plots realized or foiled over the coming years, because that would affect the general public’s—and the Supreme Court Justices’—ideas of appropriate law enforcement tactics and the threat to public safety. // Michael Racette
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