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The 5 words that changed America

Retired Phoenix Police Sgt. Steve Proctor shines a flashlight inside the jail cell that housed Ernesto Miranda in Phoenix.
Retired Phoenix Police Sgt. Steve Proctor shows on Wednesday, March 13, 2013, the jail cell where Ernesto Miranda was held at the Phoenix Police Museum in Phoenix.
Matt York, Associated Press

Sgt. Joe Friday on “Dragnet” delivered the lines we have all heard on TV cop shows for years in his characteristic monotone, just-the-facts-ma’am voice.

Wisecracking “Law and Order” detective Lennie Briscoe always added a little dig when he put the cuffs on a bad guy.

“You probably know this next part by heart. You have the right to remain silent. Anything you say can and will be used against you in a court of law ...” Briscoe said in one episode of the popular crime drama that enjoyed a 20-year run and spawned several spinoffs.

Everyone who he ever turned on the television probably knows those 41 words just as well as or better than they know the Pledge of Allegiance.

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.

“TV, I don’t want to say popularized the Miranda warning, but I think that it really has become an inherent, intrinsic part of American society, American culture. We all know the Miranda warning,” said University of Utah law professor Amos Guiora.

“The Miranda warning is, I don’t want to say as American as apple pie, but it really has become a part and parcel of American culture.”

But what Guiora and University of Utah law professor Louisa Heiny do say is five of its words — the right to remain silent — changed America. In fact, the title of their book exploring the people behind the 1966 landmark U.S. Supreme Court case that brought about Miranda is “The Five Words That Changed America.”

It’s not a stretch.

The decision shaped American history, American criminal law history, and continues to shape American criminal law procedure day in and day out.

“I think they fundamentally changed or at least tried to change the relationship between citizens and police, and the power dynamic between citizens and police,” Heiny said.

The Miranda case might be particularly relevant today in light of the heightened tension between the public and law enforcement after Minneapolis police officer Derek Chauvin killed George Floyd.

Who was Ernesto Miranda?

Until his appellate attorneys dubbed him Ernesto, he was known as Ernest or Ernie Miranda. He was born on March 9, 1941, in Mesa, Arizona, where he started getting into trouble at a young age. He was arrested for the first time in 1955 and placed on probation for car theft. A burglary charge a few months later landed him in reform school.

Less than two months after his release, he was charged with attempted rape and assault and was sent back to reform school. He enlisted in the Army but went AWOL and was arrested for window peeping. He was dishonorably discharged at age 19.

Miranda then bounced around Kentucky, Arizona, California, Tennessee and Texas. He spent a year in federal prison for driving a stolen car across state lines.

In 1963, police detectives in Phoenix confronted Miranda about the rape of an 18-year-old woman and the robbery of another woman. He voluntarily accompanied them to the station for an interview. After about an hour, the detectives put him in a lineup.

Ernesto Miranda listens as the jury deliberates his case in Phoenix, Ariz., on Feb. 24, 1967.
Associated Press

After the lineup, the 23-year-old Miranda asked the detectives how he did. They implied he didn’t do so well and that he should tell them what happened. Miranda, who had an eighth-grade education, then wrote out a signed confession.

Juries convicted Miranda of rape and kidnapping in one case and robbery in the other, not based on the confession but on the witnesses who testified against him, Heiny said. He was sentenced to a total of 40 to 55 years in prison.

Heiny, a former prosecutor, said it’s a misconception that Miranda was a victim. The detectives interrogated him for a total of two hours and neither threatened nor beat him, something police routinely did in that era.

Contrary to popular belief, Miranda had a competent attorney who preserved the right issue for appeal, objecting to the rape conviction on the grounds that Miranda had not been told that he had the right to an attorney during the interrogation, and the kicker is he didn’t, Heiny said.

Arizona law at the time did not require state or local police to inform suspects that they had a right to a lawyer, Heiny said.

The Arizona Supreme Court upheld the conviction and Miranda’s lawyers appealed to the U.S. Supreme Court, where the case was eventually consolidated with three similar cases from other states.

“Miranda is famous because he came in alphabetical order first,” Heiny said. “You’ve probably never heard of Stewart, Westover and Vignera.”

The court case

Interestingly, the case has a Utah connection.

The American Civil Liberties Union in Arizona became involved in Miranda’s appeal and its counsel, Robert Corcoran, went looking for a lawyer to argue the case before the Supreme Court. His first choice was Rex Lee, described in Guiora’s and Heiny’s book as a “promising young Arizona lawyer” who had just finished a clerkship for Supreme Court Justice Byron White.

Although interested, Lee declined the offer because under Supreme Court rules, former clerks must wait two years before appearing before the high court, according to the book. Lee would go on to serve as U.S. solicitor general in the Reagan administration and argue 59 cases before the Supreme Court. He was the founding dean of the Brigham Young University’s law school and later became the university’s president.

Ernesto Miranda, looking at the view on the roof of a Phoenix office building on March 30, 1973.
Associated Press

The Supreme Court accepted the Miranda case in 1965 and heard oral arguments in February 1966. The court faced an exercise in line drawing: How much should it protect defendants, and at what cost to police? Guiora and Heiny wrote. Justice Abe Fortas called it a “terribly difficult, vexatious and tormenting decision.”

Conservative Chief Justice Earl Warren pulled together five justices to come to the conclusion that criminal suspects need to be told things to “prophylactically” protect them and give them information about their rights, Guiora said. Warren wrote the majority opinion in favor of Miranda.

“We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning ... he must be warned prior to questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires,” Warren wrote in his 53-page opinion containing more than 20,000 words.

Most jurisdictions boiled down the essence of Warren’s words into what would become one of the best-known phrases in American law enforcement. In addition to an oral Miranda warning, some police agencies also provide it to suspects in writing, Heiny said.

Warren believed those rights should apply not to just the rich or those who knew the right people, but to everyone, including Ernie Miranda, Guiora said. Warren wrote in the majority opinion that the quality of a nation’s civilization can be largely measured by the methods it uses to enforce its criminal laws.

“Decency, security and liberty alike demand that government officials should be subject to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously,” Warren wrote.

Warren wanted to throw the “third degree” into the dustbin of history, Guiora said.

The Supreme Court kicked Miranda’s kidnapping and rape case and the robbery case back to the state court in Arizona where he faced trial again. Juries in both cases again convicted him and a judge sent him back to prison. He was paroled in 1972. Miranda died after being stabbed in a bar fight in 1976.

Miranda rights

The Supreme Court decision articulated the limits of state power and recognized that interrogations are inherently coercive, he said. It established goals posts for what can and can’t happen during a police interview and the means by which a person is protected.

“From my perspective, unfortunately, people don’t take as much advantage of the Miranda warning as perhaps they should because they have become so rote,” Heiny said. “They’re almost like background now because they’re so pervasive in popular culture.”

People don’t immediately and clearly articulate the magical words: I want to talk to a lawyer, she said.

Heiny said the Supreme Court has not overturned Miranda, although it could have. Rather, courts have chipped away at the law.

Handcuffs and shackles hang at the Utah State Prison in an undated file photo.
Handcuffs and shackles hang at the Utah State Prison in this undated file photo.
Chuck Wing, Deseret News

She pointed to a well-publicized Louisiana case where a suspect told police: “If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog ’cause this is not what’s up.” Or did he say “lawyer, dawg.” Either way, courts ruled that his “ambiguous” statement did not assert his right to counsel.

Anyone who has any context of popular culture knows he was asking for an attorney, Heiny said.

Miranda in many ways, she said, has not done what Warren and the Supreme Court at the time thought it would.

“The combination of the way that the courts have read Miranda and the fact that people continue to talk to the police without asserting their Miranda rights means that it’s probably not as impactful as the court probably expected that it would be,” Heiny said.

Relevance today

The blurb on the back cover of “Five Words That Changed America” says, “In the middle of it all were police departments struggling to change with the times, a United States Supreme Court in the throes of an individual rights revolution, and a nation navigating the turmoils of the 1960s.”

The same could be written about the strife in the country today, intensified with the killing of Floyd and the violent riots that ensued last summer. The Chauvin case highlighted the tension between suspects, police, the criminal justice system and the public that Warren addressed in his opinion.

“I think right now we’re seeing the very public struggle in terms of who has power. I think Miranda is a way of shifting some of that power, at least theoretically in a way that gives suspects a little bit more power and perhaps police a little bit less power,” Heiny said. “I think that’s a good thing. It can go too far, but I don’t think Miranda does go too far.”

Salt Lake County District Attorney Sim Gill said the Miranda case informs a larger ideal within the structure of society and government. Sixty years later the country is still grappling with issues regarding how people interact with law enforcement.

“This really fits into even the current debates that we’re having about social justice and police reforms,” he said. “Ultimately, while there is a disproportionate presence that occurs between police and a suspect, what Miranda says is that you don’t get to use the tactics or the overwhelming nature of power because both realistically and symbolically you get your values from that same community of citizens that you are acting against.”

The Miranda warning strives to empower people brought into the police station for questioning with the right to prevent them being taken advantage of, Gill said. It is not only critical to a particular case, but it also becomes important to the institution that must adhere to it.

“It is speaking to a larger narrative to what we hold as ideals within our larger social and political culture,” he said. “That notion of legitimacy intersects through all of those elements because at the end of the day, I may have to, through our process, send you to prison for the rest of your life.”

Heiny said the way Miranda warning is used in TV shows is inaccurate, giving the false impression suspects are read their rights at the time of arrest. People are entitled to be Mirandized when they are held for questioning, which means they aren’t free to leave.

It’s also incorrect that suspects have a right to have an attorney brought in when they request it, Heiny said. Most police just end the interview at that point. They do have a right to have a lawyer present during an interrogation.

Without Miranda, Heiny and Guiora said suspects would have no rights and would continue to be subject to psychological and physical abuse during police interviews.

“The case is a way of saying to police do better, be better,” Heiny said. “I think that is particularly resonant in the times.”