That “Knock Knock” joke shown at left is not really a joke. It’s actually a concise summary of one of the most serious criminal law concepts in American constitutional history.
This past Tuesday, June 13, 2023, marked 57 years ago to the very day that the U.S. Supreme Court in Miranda v. Arizona issued the historic 1966 ruling by declaring that police must warn you that “You have the right to remain silent.”
But that wasn’t all. The Court also declared that suspects “have the right to an attorney, that an attorney will be appointed if they cannot afford one, and that anything they say can be used against them.” These rights stem from the Fifth Amendment to the U.S. Constitution that, in pertinent part, reads as follows, “No person … shall be compelled in any criminal case to be a witness against himself …”
In other words, the police can’t force anyone who’s a suspect in a crime to say anything that might incriminate him or her. That’s why smart people who get arrested, regardless of guilt or innocence, always shut up.
Think about it: If a cop just arrested you and then begins interrogating you but he or she first tells you, as police are required to do, that anything you say will be used “against” you, why would you say anything? Remember, the cop didn’t say it would be used “for” you; he or she said it would be used “against” you! Once a cop tells you that, it would be stupid for you to say anything at all except, “I want a lawyer.”
Or, if you prefer, you can say what Dave Chappelle said in his hilarious but smart skit below.
Although the Fifth Amendment has been in existence since 1791, it didn’t really mean much to the average person in this country until 175 years later in the Miranda case.
And here’s the background of that seminal case. In 1963, a Latino laborer named Ernesto Arturo Miranda was arrested by the Phoenix police on a rape charge.
And following a two-hour interrogation by two cops in what that police department called the “sweat room” and also following an initial denial of any wrongdoing by Miranda, he nonetheless signed a grammatically perfect typed confession admitting to everything.
And that was, to say the least, incredibly bizarre not only because he had a mere eighth grade education but also because of his documented history of mental illness. Oh, and by the way, during a line-up prior to his alleged confession, the woman was unable to positively identify him as her attacker although the police falsely told him during the interrogation that she had.
Despite the defense attorney’s objection on the grounds that the confession was coerced, the trial judge allowed the prosecution to introduce it as evidence to the jury, which found Miranda guilty, followed by the judge imposing a 20-30 year sentence. After the Arizona Supreme Court upheld the conviction, the case was appealed to the U.S. Supreme Court.
And on June 13, 1966 in a 5-4 decision, the U.S. Supreme Court reversed the conviction and remanded the case for a new trial because Miranda had never been warned that the Fifth Amendment guaranteed him the right to remain silent and the right to an attorney.
In the majority opinion, Chief Justice Earl Warren wrote: “The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. [Moreover, if] the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.”
In other words, don’t say nuthin’ and (often) it won’t be nuthin.’
I must reference another legal safeguard that could save you from unconstitutional trials, guilty verdicts and sentences.
Just as the Fifth Amendment protects your right to remain silent and also protects other rights, the Fourth Amendment protects your right to maintain your privacy. And that includes the privacy of your cellphone and computer.
For example, there’s a 2020 Pennsylvania Supreme Court case that says the cops can’t force you to tell them the password to your phone or your computer. Before I explain that case, allow me to show you exactly what the Fourth Amendment says in pertinent part:
“The right of the people to be secure in their persons … and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause … particularly describing the place to be searched, and the … things to be seized.”
And based on that federal amendment from 1791, Pennsylvania included the following language in Article I, Section 8 of its state constitution in 1874, “The people shall be secure in their persons … and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any … things shall issue without … probable cause …”
As a result of the Fourth Amendment and Article I, Section 8, the Pennsylvania Supreme Court in the 2020 Commonwealth v. Davis case ruled that people do not have to disclose to the police any memorized passwords. The Court specifically declared that “The revealing of a [cellphone or] computer password is a verbal communication, not merely a physical act … There is no physical manifestation of a [memorized] password, unlike a handwriting sample, blood draw, or voice exemplar. As a password is necessarily memorized, one cannot reveal … [it] without revealing the contents of one’s mind …”
This is a great ruling. However, this constitutional protection applies only to passwords you memorize. It does not apply to any passwords the police find written down or spoken somewhere. And it definitely does not apply to facial recognition or fingerprints, so immediately remove that privacy-invading nonsense from your electronic devices.
By the way, I’m telling you about this Davis case not because I think you wanna hide your weed from the police or anything like that.
I’m telling you because you have a lotta private medical stuff and private financial stuff and private relationship stuff and other personal stuff that’s nobody’s damn business – including cops.
And speaking of cops, remember the 57th anniversary of the Miranda decision on June 13. In fact, remember it everyday and shut up every time the police attempt to violate your rights by illegally interrogating you.
And also remember that “Knock Knock” joke/case because it’s not only hilarious. It could also keep you free.
This column was first published by the Philadelphia Tribune, a publishing partner of the Pennsylvania Capital-Star.