The Counsellor's Corner


Is Miranda to be saved?  I am, of course, referring to one’s Miranda rights which anyone who has ever watched television is familiar with.  You see it when someone is arrested and the officer tells the individual, “You have the right to remain silent.  If you give up the right to remain silent, anything you say can and will be used against you in a court of law...”  In late April the U. S. Supreme Court heard arguments as to whether or not those who are arrested should continue to be given their Miranda rights.

Please note that the case before the Supreme Court is not about whether or not people have Miranda rights, it is about whether they should be told of their right to remain silent and their right to an attorney.  Of course, the two go hand in hand, as if you don’t know you have the right to remain silent, you may end up finding that you have given up a right that you didn’t know existed.  Fortunately, it looks, based on the questions asked during oral arguments before the Supreme Court, that Miranda rights will survive.  Justice Breyer, referring to the initial Miranda decision in 1968, indicated, “It has been a hallmark of American justice in the last thirty years.”  Justice Clarence Thomas, mindful of the old adage that one can either speak and confirm the fact that one is a fool or not speak and leave the matter in doubt, as usual chose the latter.  His M.O. is to listen to the arguments and be the only one of the nine justices to not question those before him.

There is a fundamental belief in this country that if one is accused of a crime, it is up to the State to prove the individual’s guilt and not use the individual’s words against him unless he has previously given up his right to remain silent.  In a criminal jury trial, the defense has the option of not putting on any evidence if it so chooses. When arrested, an individual, when informed of his Miranda rights, has the opportunity to not speak if he so chooses.  More often than not, people would do well to heed their Miranda rights.  You are told you have the right to remain silent for a reason, and it is generally not in your best interests to speak.  In my twenty years of practicing criminal defense law, I have seen a large number of cases that would have been difficult for the prosecution to meet their burden of proof if the individual charged had not opened his mouth and made the job of the prosecutor a whole lot easier.  This doesn’t mean that people should not talk to police officers if they wish.  They should know, however, that there is risk inherent with so doing and that it might not be in their best interests.

This is similar to when in court, if an individual wishes to represent himself without the aid of an attorney, the judge generally spends a couple of minutes telling the individual that there is danger here and that he is probably better off with an attorney than without one as he will be held to the standards of an attorney and he is very likely to be in over his head.  After the individual hears that litany, he can then choose to represent himself if he so wishes,

but only after he hears the judge’s admonition and then clearly and knowledgeably waives his right to be represented by counsel.

I believe the attorney for the defendant in the case presently before the Court put it best by indicating that the Miranda Rule“ as it exists provides guidance to the police, guidance to the courts, and it protects suspects’ rights.”

Why mess with it?  It has worked since 1968, and while nothing is perfect, I don’t think too many of us want to go back to earlier times in which individuals could be, some would say, bullied, others would say influenced, into giving un-Mirandized confessions.  Again, if someone wants to confess to a crime after being Mirandized, then so be it, but at least the person had the opportunity to put the State to its task of proving guilt.  If, after Miranda, the individual wants to help the State along, then that is his choice.

Here’s hoping that the United States Supreme Court leaves well enough alone and reinforces the necessity and importance of one being admonished of his Miranda rights.  These really are rights that if you are not aware you have them, they become of no value.


Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.