Speak up to be silent

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 speak to an attorney, and to have an attorney present during any questioning.

If you cannot afford a lawyer, one will be provided for you at government expense.

Standard text of Miranda Warning administered to suspects in the custody of U.S. law enforcement agencies.

FIRST unconfirmed reports suggest that India's National Investigation Agency (NIA) team has drawn a blank after questioning 26/11 accused David Coleman Headley for several hours at a Chicago prison. The latter is said to have simply drawn attention to his Fifth Amendment right (part of the United States Constitution's Bill of Rights) to remain silent. Some U.S. official sources, however, do not corroborate this. They say that Headley, while entering into his plea bargain agreement earlier with the U.S. court, had waived his Fifth Amendment right.

Possibly these are early days to assert anything definitive on this, such as whether Headley's questioning is a mere pro forma exercise meant to assert India's right in mutual cooperation in criminal justice matters. It is, at the same time, utterly naive to believe that on the basis of what Headley has already told the Federal Bureau of Investigation (FBI) the interrogation will lead to a major advance in the 26/11 investigation overseas. In any case, it is unrealistic to expect Headley's interrogation to throw up any sensational facts required to fill in gaps in the whole picture of how 26/11 had been planned. If Headley is cagey and intransigent, that should not come as a surprise to those familiar with the U.S. criminal justice system. The U.S. constitutional diktat is that no person accused of an offence shall be compelled to incriminate himself during a criminal investigation, and many lawbreakers take advantage of this to frustrate interrogators.

Incidentally, the Indian Constitution is equally sensitive to protecting the rights of those hauled up by criminal justice agencies. Article 20(3) of the Constitution confers on every citizen the right against self-incrimination. Article 21 of the Constitution mandates a fair, just and equitable procedure in criminal cases. Also relevant here is Section 25 of the Indian Evidence Act, which makes all confessions made to a police officer inadmissible in evidence. (Section 27 of the Act is an exception in the sense that if any part of a confession leads directly to the recovery of a material piece of evidence, that part alone becomes admissible.) The Law Commission of India, in its 180th Report of 2002, was categorical that any dilution of citizens' rights through an amendment to Article 20(3) would be ill advised, although global trends did warrant a re-examination of the issue.

The obstacle in the way of the NIA team cracking Headley will have to be read in conjunction with the debate in the U.S. on the limits to the right of a crime suspect to remain silent when he is under pressure to reveal all that he knows about a crime under investigation. This right and the associated obligation of the investigator were embodied in a landmark ruling (1966) of the U.S. Supreme Court in Miranda vs Arizona. Ernesto Miranda of Phoenix, with a record that included rape, assault and burglary, was arrested in 1963 for armed robbery of a bank worker. While in police custody he gave a written confession not only to the armed robbery but to the kidnapping and rape of an 18-year-old girl, an offence that was committed a few days before the robbery.

Miranda's lawyers took the case on appeal to the U.S. Supreme Court on the grounds that Miranda did not know that he had a constitutional right not to confess to his crime. The court upheld the contention and overturned the conviction. Ironically, Miranda was later sentenced for 11 years on other evidence in the case collected independent of the confession.

The Miranda decision was by the Warren Court, which was mostly at war with the establishment because of its extreme liberalism. The court was increasingly showing signs of dissatisfaction with the way the police were treating crime suspects. First came the ruling (1964) in Escobedo vs Illinois, in which the court said that criminal suspects must be told of their right to consult an attorney. But it did not go far enough to lay down a procedure for this. Two years later came the Miranda warning, which was to become the bible for the police and other agencies dealing with crime.

Since then, the statutory warning by the police and other investigating agencies has become a ritual without which no case can proceed. If the investigating agency has ignored the Miranda prescription in a case for unavoidable reasons, the defence can easily set at naught whatever has been done until then by the agency, which has to begin all afresh in its pursuit. In a manner of speaking, the Miranda caution has become a part of the culture, something that the media has dramatised, especially in movies. Law enforcement has come to accept it, though grudgingly.

All this changed with the arrival of modern terrorism, and especially after 9/11, which exposed the stark realities of dealing with individual perpetrators of terror, whose motivation extended to killing themselves for the jehadist cause. Opinion started solidifying in the U.S., especially among Republicans, that the Miranda procedure was soft on terrorism and there was need for a rethink.

Subsequent events on the terrorist front, including the failed attempt by Faisal Shahzad, a U.S. citizen of Pakistani origin, to set off a car bomb in Times Square, New York, have served to heighten the rhetoric against giving any leeway to terrorist activities in the country. The U.S. Supreme Court cannot remain unswayed by popular sentiment that terrorism will have to be dealt with with the greatest possible severity.

A significant ruling on the subject by the U.S. Supreme Court came in 2003 in Chavez vs Martinez in which the former, a police officer, persisted in questioning a crime suspect who had been wounded gravely in a police shootout in 1997. The suspect alleged that the police officer seriously interfered with the emergency medical treatment being given to him. No Miranda warning was administered to the suspect, nor were charges pressed against him in a trial. Chief Justice William Rehnquist and five other judges held that, in the circumstances reported, and since the questioning did not lead to a trial, there was no violation of the constitutional protection given to suspects.

Also, the intentions of police officer Chavez were very clear, in that, if Martinez had died without being subjected to the questioning, valuable evidence would have been lost in the case. The other three judges on the Bench dissented stating, Our cases and our legal tradition establish that the self-incrimination clause is a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the work of the courts.

Landmark judgment

In another landmark on June 1, 2010, the Supreme Court, in Berghuis vs Thompkins, delivered a judgment that had the potential of diluting the protection afforded to crime suspects from arbitrary and coercive action by the police. In this case of murder reported from Michigan, Thompkins allegedly shot Berghuis to death. When questioned after being administered the Miranda warning, he refused to sign a statement that he was waiving his right not to speak. He remained silent thereafter for several hours. But he eventually slipped up by replying affirmatively to the question whether he would pray to God that he be forgiven for the murder. He was convicted on the basis of that statement. A federal appeals court in Cincinnati ruled in 2008 that the statement should have been excluded from the purview of the trial court.

A conservative-dominated Supreme Court of the U.S. held that after receiving the Miranda warning if a suspect failed to speak up and tell his interrogator that he was invoking his right to silence, the presumption was that he was actually willing to speak. The five judges who wrote this order believed that every suspect who had been warned specifically against the consequences of responding to police queries on a crime and who had decided not to cooperate should tell the police explicitly that he had in fact decided not to speak.

The five-four decision confirmed the known ideological cleavage within the Bench. Justice Anthony Kennedy, who wrote for the majority, did not disturb the basic right. He merely said that where a suspect did not specifically say that he was invoking his right to silence but broke his silence after prolonged interrogation, courts could not suppress what he had said, even if that amounted to self-incrimination. The dissenting four on the Bench included the latest entrant, Sonia Sotomayor, who was categorical that the majority was overturning an established right of those subjected to police interrogation. She was possibly correct because, in a sense, the initiative with regard to waiver of the precious right had now been passed on by the Supreme Court from the police to a suspect.

The June 1 ruling is no doubt controversial, if viewed solely from the point of view of a suspect. But dispassionate observers feel that it will not alter greatly the existing situation, as crime suspects hardly benefit from the warning. This is because there are not many accused persons who are not willing to speak to the police. It is natural for anyone charged with a crime to clear himself at the earliest opportunity. One may have to wait a while before pronouncing one's own judgment on the ruling. Perhaps, some may ultimately go with a Philadelphia defence lawyer: The only guy who benefited from Miranda was Ernesto Miranda, who gave his name to the warning way back in 1966.