So glad you asked. Recently, there’s been a lot of discussion about modifying Miranda warnings, or the warnings suspects are given upon arrest in the United States that inform them about their rights to silence, an attorney, termination of questioning, and possible contact with a consular authority. Current Attorney General Eric Holder is pushing Congress to modify the rules for terror suspects, specifically to change when Miranda warnings can be read, and to whom they apply.
Miranda rights are relatively new. They emerge from Supreme Court’s 1966 decision in Miranda v. Arizona, wherein the Court found that evidence given by suspects in a criminal case was only admissible if the suspect was fully informed of his or her rights to legal counsel beforehand. Before Miranda, suspects may not have been informed of their right to legal counsel at all. This can be difficult to understand in the wake of police procedurals on television, most of which came into being after 1966 anyway and all of which feature regular recitations of the warnings. Now we can all recite them, but Miranda himself apparently spent the rest of his days autographing “Miranda cards” for police officers — little cheat sheets with the rights written on one side in case the arresting officer forgot them.
In deciding Miranda the court relied on two Amendments to the Bill of Rights: the Fifth and the Sixth. The Fifth refers to the right not to incriminate oneself, and the Sixth is the right to due process under the law. Simply put, one promises that you do not have to confess if you do not want to, and the other promises that everyone, everywhere, has the right to be treated equally by the judicial system. What Miranda means as a decision is standardization: all arrests, anywhere, at any time, of anyone, must be done in such a way as to inform the suspect of his or her rights.
However, in the discussion about Miranda, I find pundits and experts alike forgetting one important thing: the warnings are merely a reminder of our rights, not a dispensation of those rights. In other words, the Miranda warnings are not a magic spell. We do not suddenly gain the right to legal counsel upon hearing them recited, that right is guaranteed to us as citizens. Conversely, one cannot deprive someone of her rights simply by refusing to utter the proper incantation; failing to recite the warnings does not alienate the rights to which they refer. If you already possess the rights outlined in the Fifth and the Sixth, then you have the rights determined in Miranda. In other words, our rights do not operate using quantum mechanics. Here’s a crash course, via io9:
At a fundamental level, everything in the universe behaves like a little probability wave. Particles are literally in many places at once, each with some probability. Take an electron and fire it at a screen with two slits cut through it, and astonishingly, the electron will go through both slits simultaneously. But suppose you set up a pair of cameras to monitor which slit the electron goes through and suddenly – poof – the “wave function collapses” and it really goes through only one of the two. Somehow observing the system directly affects it.
I think that lately, the mistake we’ve been making is in thinking of our rights as those particles, which change shape the moment we observe them. This is false. Our rights are strictly classical in their mechanics. They continue, like an object in motion uninterrupted by friction, until we as a society decide to block their progress. No unseen force or distant authority puts down its foot and consigns them to inertia, we do. It’s our decision, and our responsibility.
And that is how a right is not like a particle.