Miranda v. Arizona – The Right to Remain Silent

By | September 9, 2021
Miranda v. Arizona – The right to remain silent

Last Updated on by Admin LB

This article on ‘Miranda v. Arizona – The right to remain silent’ is written by Nilanjana Banerjee and focus on the self-incriminating laws in the US and how their present status.

I. Introduction

It is an established fact that every individual possesses certain rights which can be limited by reasonable restrictions. But when a person is accused in a criminal trial, some of the rights get restricted and instead new rights are born.

Such rights actually differ from one country’s judicial system to another country’s systems and one such vital right is the right against self-incrimination, by virtue of which, the accused has a right to not say or answer the questions which will incriminate him or her.

During the criminal trial, the accused is interrogated in custody by the police and at times the accused is compelled to give such statements which will incriminate him. The police officers may use resort the mental force, physical force, threaten the accused of potential harm to extract such self-incriminating statements.

Such statements by the accused which increases the chances of conviction are called self-incriminating statements. In some of the European countries, if a person fears self-incriminating statements, he or she has the discretion to decide whether to give testimony or not while in Anglo Americans the practice is different. Here the accused can merely cite this privilege of not testifying (due to fear of self-incrimination) and it is upon the judge to decide whether such person is to testify or not.

The protection against self-incrimination is not how as it was earlier and with changing time, the provisions have evolved and turned more humane, favourable to accused. It has been said that there are several other methods of testifying and sources of proof available.

In European countries, there are five different sources of proof identified –

  1. witnesses,
  2. parties,
  3. real evidence,
  4. experts and
  5. documents.

II. Fifth Amendment and self-incrimination

5th amendment says that[1]

“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 offence 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.”

The 5th amendment to the US constitution forms a part of the Bill of Rights which is articulated to provide safeguards to criminally accused, secure their life, liberty and property from being damaged and taken away. The 5th amendment is divided into five distinct clauses, each one of which represents five distinct as well as interrelated rights.

As per the 1st clause, i.e. Grand Jury clause, a body is required to make formal indictments of the accused against the federal government laws. This part of the proceeding is not considered a trial, rather is an ex- parte hearing, where only one party is present.

In this type of ex parte hearing, only the prosecution is present in court and produces evidence and is done for the judge to determine if there is enough evidence to proceed with the trial of the accused. If the jury finds sufficient evidence, regarding the commission of an offence, then it permits the trial.

The second clause is called the double jeopardy clause and aims at providing protection to citizens against multiple punishments of the same offence after being either convicted or acquitted. Moreover, it provides protection against the second prosecution, no matter whether the accused was acquitted or convicted in a former trial.

Caveats to this clause are inclusive of permission to try the accused of criminal and civil aspects, conspiracy to commit and commit the offence, separate trials for violation of laws for the state as well as federal laws.

The third clause talks about self-incrimination, and thus the clause is called ‘self-incrimination clause’. This part of the 5th amendment protects the accused persons from being compelled in any means to testify against their acts. In the US criminal justice system, an accused is assumed to be innocent until proven guilty. The burden is on the state or federal government to produce evidences that prove his or her guilt.

Evidence like autopsy report, forensic report, police line ups etc are constitutionally permitted while statements extracted from the accused (with use of force or threat) is not admissible in court. There are higher chances that words by the accused can be manipulated strongly to use against the accused. Thus, to protect them from testifying against themselves, the 5th amendment was brought in.

The fourth clause is due process clause. It protects life, liberty and property from being impaired by the federal government. It is quite the same as the 14th amendment which was ratified in 1868. This clause further aims at preserving the fundamental rights, provide a safeguard against deprivation of life, liberty. There are two types of the due process i.e. substantive and procedural.

The fifth clause is ‘takings clause’ and concerns property. It also entitles a person to hold property, participate in politics and government activities.

III. Miranda v. Arizona[2]

Facts of the case

The case began with the arrest of Ernesto Miranda, who was charged with rape, kidnapping and robbery too. Thereafter he was interrogated by police for around two hours and during this time, he confessed the crimes he had committed and the police recorded such statements, but his history showed he had a background of mental instability. He had no counsel with him to represent him. In the trial, he was convicted and sentenced to 20 – 30 years imprisonment totally based on his confession.

Miranda then appealed to the Arizona Supreme court and there he claimed that his confession was obtained by police unconstitutionally. Moreover, he said that he was not informed about his right against self-incrimination. But Arizona Supreme Court disagreed and upheld the conviction.

Then, he went to US Supreme Court and the issue there arose – “whether the protection against self-incrimination as is granted by the fifth amendment applicable to police interrogation of an accused?”

The Supreme Court in the ratio of 5:4 ruled that the evidence cannot be produced before the court as police have failed to inform Miranda about his right to have counsel and right against self-incrimination. Chief Justice Earl Warren delivered the judgement and said Miranda’s Fifth amendment constitutional rights have been violated.

A defendant is required to be informed about his right to remain silent when the accused feels that answering certain questions can incriminate him. After he is informed he can knowingly waive off his right and decide to answer such self-incriminating questions. These two rights are called Miranda’s rights and the police are bound to inform the accused about this.

IV. Aftermath of Miranda v. Arizona

There were several critics of the Miranda v. Arizona decision, hence several cases came up after that. Some of them are discussed hereinafter.

In 2000, the case of Dickerson v. US[3] was decided by US Supreme Court under Chief Justice William Rehnquist. In this, the court presented a very conservative view which almost overruled the landmark case of Miranda v. Arizona, but nevertheless, they decline to do so. The accused had confessed his crime and only after that he was made aware of his Miranda rights. Congress said that the confessions were voluntary and thus they were admissible. The issue was, “can congress legislatively overrule the Miranda case which governed the admissibility of self-incriminating statements?”

In 7:2 ratio, Chief Justice William Rehnquist held that “the case of Miranda has become embedded in police routine. It has established a constitutional rule which cannot be superseded by congress”[4].

Thereafter, in 2010, another case came up with a similar issue. The case was of Berghuis v. Thompkins[5]. In this, the accused was charged with murder, assault and firearm-related charges. On being convicted, he appealed to Michigan Supreme Court, where it was said that he had waived his rights. But the 6th circuit court held the decision as unreasonable.

The issue then went to the Supreme Court, where the question was whether the 6th circuit court expanded the Miranda rule improperly and the Supreme Court said that the circuit court had acted improperly as Thompkins had made the statement knowingly and that too after being aware of Miranda right. Thus, it will be concluded that he waived his rights.

The controversy did not end here, it continued to the case of Salinas v. Texas[6], where the court held that the right against self-incrimination extends to those who expressly claim it and not for such accused to simply remain silent during interrogation.

Therefore, it can be safely concluded that the controversy extended for quite a long time, even after Miranda v. Arizona. Also, the court took an active place in securing the right to remain silent to the accused.


[1]  U.S. CONST. Amend V

[2] 382 U.S. 925 (1965)

[3] 530 U.S. 428 (2000)

[4] Id

[5] 560 U.S. 370 (2010)

[6] 570 U.S. 176 (2014)

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
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Author: Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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