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Excerpts from pages 83-85
The Miranda doctrine came down in installments.
The first, the June 13, 1966, sixty-plus page opinion,
contained the police procedures that are now known as
the Miranda warnings. The second installment,
handed down a week later in the Johnson case,
created arbitrary deadlines for the application of the
Miranda doctrine.
The Miranda warning itself, as stipulated in the
first installment, must include all of four separate
warnings: (1) The suspect must be warned prior to
questioning that he has the right to remain silent;
(2) He must be warned that anything he says can be used
against him in a court of law; (3) He has the right to
the presence of an attorney; and (4) If he cannot afford
an attorney one will be appointed for him prior to
any questioning if he so desires.
In judicial circles, warnings are euphemistically called
admonitions. What, then, was the Warren Court’s
intention in crafting these four particular admonitions?
Were all four considered of equal importance? Is the
order of their presentation meaningful?
And then there is the question of whether or not this
set of four explicit warnings is constitutional. Many
constitutional scholars worried about the exact
constitutional predicate for holding that the police
must give these four explicit warnings to suspects.
Justice Black, the senior member of the Miranda
majority, was famous for carrying around a frayed
vest-pocket-sized copy of the Constitution, produced by
the U.S. Printing Office. At the slightest provocation
during an oral argument, he would reach for his little
dog-eared book, wave it toward the advocate’s podium,
and ask, “Where exactly in the Constitution does it say
that?”
For constitutional scholars, at least, the answer begins
with marking the boundaries of due process. Even the due
process clause of the Fourteenth Amendment contains no
description of limits, and over the last two hundred
years, the Supreme Court has repeatedly attempted to
articulate the general procedural guidelines to which
those governing as well as those governed should adhere.
In a “settled usages and modes of proceeding” case in
1921, for example, the Court said, “[a] process of law
is due process within the meaning of constitutional
limitations if it can show the sanction of settled usage
both in this country and in England.”
Judge Cardozo said, “Not lightly to be vacated is the
verdict of quiescent years.”
After his transition from the New York Court of Appeals
to the United States Supreme Court, Justice Cardozo
expanded his subtle view of the matter by saying, “We do
not find it profitable to mark the precise limits of
[due process].”
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