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American Annals of the Deaf

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Language and the Law in Deaf Communities

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In sum, arrest and interrogation are invaluable and indispensable tools for law enforcement. But, by its very nature, interrogation is also subject to overreaching, and even abuse. Even absent overreaching, the coercive nature of interrogation while being held in police custody can lead innocent individuals into making untoward statements that later can appear to be incriminating.

Constraining the Power to Interrogate: The Fifth and Sixth Amendments

The Bill of Rights provides American citizens with a breathtaking spectrum of individual freedoms and protections from governmental interference. Two of these rights—the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel in criminal proceedings—are particularly relevant to the interrogation of an individual in police custody.

The ultimate goal of the police in interrogating an individual is to obtain a complete confession to the alleged crime. If a complete confession cannot be obtained, the secondary goal is to obtain incriminating statements that may be used with other evidence to later convict him or her. The Fifth Amendment, however, guarantees that no person shall be compelled in a criminal case to be a witness against himself. Within the context of interrogation, this right means that the individual being interrogated need not speak or cooperate with the police. He or she has a right to remain silent.

Also highly relevant to custodial interrogation is the right to counsel. The Sixth Amendment provides that an individual accused of a crime has a right to counsel, that is, the right to consult with an attorney during all criminal proceedings. Since custodial interrogation of a suspected individual IS a criminal proceeding, an individual has the right to speak with an attorney before or at any time during police interrogation. As pointed out previously, arrest immediately isolates an individual from the outside world, cutting him off from informational, emotional, and physical resources. But the ability to speak with an attorney before or anytime during interrogation goes a long way to bringing the individual back from such isolation, and therefore, removes some of the coercive nature of the procedure. An individual has the right to the effective assistance of counsel even if the she cannot afford the fees charged by private attorneys. In these cases, the government must appoint one for her free of charge (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 [1938]).

Clearly, the Fifth and Sixth Amendments provide protections that help to level the very un-level playing field of custodial interrogation. But, rights unknown are no better than no rights at all. For the protections contained within the Fifth and Sixth Amendments to be meaningful, the individual must be aware of what they are vis-à-vis police interrogation, when they may be exercised, and how they must be asserted. It was precisely this point which led the U.S. Supreme Court to its landmark 1966 decision: Miranda v United States, 384 U.S. 436, 86 S.Ct. 1602. The Court held that police must inform individuals of their Fifth and Sixth Amendment rights prior to interrogation. The litany that police officers recite is known as the Miranda warning. An individual who has been read these rights is sometimes described as having been Mirandized.

The Miranda warning (with slight modifications in certain jurisdictions) is as follows:

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 talk to a lawyer and have him present with you while you are being questioned.
If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning, if you wish.
You can decide at any time to exercise these rights and not answer any questions or make any statements.

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