Miranda Ignorance

Once upon a time, a person arrested or even talking to the police had the right to remain silent, to be represented by an attorney, and not to incriminate himself to where what he said could then be used against him in court.

That was in the 1780s, after the Constitution was signed.  It is, of course, still the case today.  The only difference is that said person also has the right to have anything he says ripped up and kept from said court, unless he is specifically read the above rights out loud prior to saying anything to said police.

We refer to that new right as the "Miranda" right, devolving from the 1966 case of Miranda v. Arizona, in which a kidnapper and rapist named Ernesto Miranda claimed (through his attorney) that a signed confession was invalid, because he was not told prior to signing it of his right to an attorney.  The case ended up in a 5-4 Supreme Court decision (surprise!), which forced a retrial (Miranda was convicted without the confession, got 20-30 years, was paroled in five years and was subsequently murdered).

It also led almost immediately to police officers being issued "Miranda cards" with the proper words to say to check the box regarding the person being properly informed of his rights to silence and to an attorney.  We all watch enough cop shows to know what the reading of such cards sounds like.

So this week, my brother posed this to me.  "Isn't ignorance of the law not an excuse?  How does that possibly square with the Miranda decision?"  I thought I'd consider that and, whatever the outcome, it was worth a column.  If indeed ignorance of the law is not a defense, then how could the Supreme Court come up with Miranda?

Good question.  Now, how they came up with Miranda is because you had Earl Warren as Chief Justice, and he felt that although the interrogation of Miranda, which was fairly hard, was a local anomaly, the corrective action required a universal solution.  Bingo-bongo, Miranda.  Warren leaned on precedent such as the interrogation rules then in place at the FBI, and even the Uniform Code of Military Justice, put them all together and ... you know the rest.

But that's the "how."  What does the "ignorance of the law" line even mean, and where does it come from? Well, it is certainly old, in that the concept dates at least to Roman law.  But it is there that the finer points come into play.

As a legal principle -- and it does exist in the United States, for example, in the Model Penal Code -- the "finer points" have to do with what law we are actually talking about.  When we say that ignorance is no excuse, the principle is referring to an actual offense, not the process.  In other words, it would have applied to Miranda had the perpetrator been somehow unaware that kidnapping and rape were actually against the law.

Ignorance of the law not being an excuse -- ignorantia juris non excusat, if you want to cite the original -- is only a reference to knowledge by the accused that the actual action he has taken is against the law.  That was not, of course, the case in Miranda; the point before the Supreme Court was of a right -- in this specific case the right to consult with an attorney -- not being familiar enough to the accused to where he could take advantage of it.  And ignorantia juris simply doesn't apply.

None of that means that the Court didn't grossly overreact in mandating the Miranda warnings to apply pretty much everywhere.  But unlike multiple decisions before and since, it may have been beyond the pale but at least it was somehow grounded in actual legal principle.

As any Roman knows.

Copyright 2016 by Robert Sutton
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