The Miranda Warning
Schauer, Frederick, Washington Law Review
I. INTRODUCTION- ISOLATING MIRANDA'S IMPORT
Largely as a consequence of American television and movies, Miranda v. Arizona1 may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops.2 And it is said that in countries where no such right actually exists, suspects have still been known, when arrested, to demand their Miranda rights.3
Among the most interesting dimensions of Miranda's worldwide fame is that the case's prominence is largely a function of the warning itself.4 Television and motion pictures feature Miranda warnings not because of any suspected viewer interest in whether suspects actually have a right to remain silent,5 nor on account of the underlying substance of the right to have a lawyer during interrogation,6 nor because the general public is concerned about the right to appointed counsel for the indigent.7 None of this, to put it mildly, makes for good theater. What is good theater is the ritual of the arrest, and the Miranda warning, typically given in almost exactly the terms set forth in the Supreme Court's opinion, is a prominent feature of the ritual, even apart from the role that the warning is actually designed to serve.
Professor Kamisar - with his characteristic attention to detail in support of spirited argument - provides an insightful judicial and political history of the retrenching that has marked much of Miranda's history since the Supreme Court's decision in 1966.8 In lamenting Miranda's erosion, I largely sympathize with Kamisar. But if there is a worry about the erosion of Miranda,9 it must be a worry not about the erosion of the right to remain silent itself, which existed independent of Miranda,10 nor about the right to counsel during interrogation, whose recognition and enforcement again preceded Miranda. u Instead, it must be a worry about the requirement that the police provide a warning in a certain way under certain conditions.12 Once we understand the import of various pre-Miranda decisions, we can appreciate that Miranda is about the warning itself, rather than about what the warning is a warning of. And when we understand Miranda in this way, we can focus on just what role the warning is designed to serve, and what the Court in Miranda thought it was doing in specifying almost exactly the form that the warning was to take. It is precisely this focus that will be the subject of my attention in this Response.
In being about a warning, Miranda is about communication. Specifically, it is about two different dimensions of communication. One of these is the substance of Miranda's holding, which is that police officers are required - on pain of inadmissibility of the evidence obtained absent a communication - to communicate to suspects under certain conditions their right to remain silent, to have a lawyer present for the interrogation, and to appointed counsel if they are indigent.13 And the other communicative dimension of Miranda is the way in which the Supreme Court communicated its requirements to police officers - the primary subjects of the ruling - in extraordinarily clear and rule-like terms. I will consider these two communicative dimensions in turn.
II. MIRANDA AS RULE
Even before Miranda, involuntary confessions were plainly understood to violate the Fifth Amendment's prohibition on compelled self-incrimination and the Fourteenth Amendment's guaranty of due process.14 And even before Miranda, and still, suspects were and remain permitted to waive their privilege against self-incrimination. …