Tuesday, July 2, 2013

Who's Afraid of Miranda....?

The literature on Indian Criminal Jurisprudence is remarkably rich in references to "Confession", be it the Malimuth Commission or the Madras Torture Commission 1858 or the body of TADA or POTA jurisprudence. We are concerned mainly about the 'kind' of confession that can be used against the confessor-or before what worthy can a legally valid confession be recorded- etc. etc. A good 150 years ago the Madras Torture Commission concluded that Indian policing and criminal justice is based on confessions by torture. Of course the British then attributed it to the colour of our skin. That’s not fair sir... You remember the Stalinist era joke, where the KGB makes the schoolboy to confess having written the Hamlet? They are whites na bhaiyya..! As a lay person one should be struck with the obsession of the police, and the entire criminal jurisprudence, with the monstrosity called "confession". Confession appears to be the staple weapon in the police armory  or the sole weapon -a creaky double barrel gun, not graduated to the SLR ehhh... ?

What is this bosss..? Confession, Confession, Confession? Is there no other form of evidence for our police? And now-enter the sexy Narco Test! What is a narco test but a form of confession in a pseudo forensic garb? Are we ever going to get beyond basics? Or is there a hidden agenda involved...mince like Tendulkar imagined in Shantata...(mhanjye Vijay haan...)

Ah yes, there is another smaller weapon: the "witness": In Mumbai a judge is reported to have castigated the police for repeatedly producing the same witness, a gentleman called Walya- for a Thane murder case, for a Colaba bank fraud case, for a Byculla car theft, for an explosion in Mahim...The judge suggested the police train and develop a cadre of witnesses for regular use. Remains a mystery...why Walya's name wasn't 'tweaked' every time....we suppose KYC counts in Courts...

Testimony is the final stage in establishing the charge, the first stage being a proper investigation. Indian Policing is seemingly concerned with the end-product and therefore would rather cook up a nice witness than waste effort on producing sleuths! Kinda' imparts speed, hitherto missing, to the wheels of justice...you know...

Contrast that with the circumspection, and concern for technical rectitude, exhibited in the West. The Boston Bomber Dzokhar Tsarnaev was allegedly not read out the Miranda Rights by the Police, and a furore followed, that’s a few months back. The Miranda Warning is, so to say, the ‘operative arm’ of the Fifth Amendment to the US Constitution which prohibits the act of self incrimination based on one's confession.  Those under arrest in the United States have the "right to remain silent" which cannot be held against them in a court of law.

The Miranda Rights emerged from the US Supreme Court judgement in the 1966 Miranda vs. Arizona. The form varies from State to State, but the essence is:

  • You have the right to remain silent;
  • Anything you say can be used against you in a court of law;
  • You have the right to consult with a lawyer and have that lawyer present during the interrogation;
  • If you cannot afford a lawyer, one will be appointed to represent you;
  • You can invoke your right to be silent before or during an interrogation, and if you do so, the interrogation must stop.
  • You can invoke your right to have an attorney present, and until your attorney is present, the interrogation must stop.
The Police is required by law to obtain a signed copy from a crime suspect arrested for interrogation.

In India this recourse to remain silent is not available, which simply derails the whole process- to escape the thrashing the accused confesses to whatever the police says (to be denied in Court), and field day for the next edition...Alexi Confesses Having Written Hamlet....headlines shriek...

There have been attempts to dilute the provisions by the Obama Government which is incensed with the licence it gives to terror suspects, some Supreme Court verdicts questioning the liberties bestowed by Mirandaji. But for this writer, the recent straws in the wind only reinforce his belief in the long term wisdom of the writers of the 1966 judgement.

The relevant judgments have frequently prevailed by a narrow 5-4 majority, the balance reportedly being tilted by ‘swing vote’ of this-or-the-other Republican appointee. Anyway, the concessions made to the alleged Conservative sensibilities appear so lame to an Indian- almost ‘quibbling’... Only the ‘presumption’ and not the ‘right’ of the defendant has been questioned. US law enforcers appear to be babes-in-the-woods compared to ours, and need a crash encounter with the IB, he,he,he... This is what The Washington Post reported about the Hon. Court’s ‘concessions’:

1st June 2010: The U.S. Supreme Court ruled that suspects must tell police explicitly that they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants’ rights “upside down.”

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The detailed report appearing in the New York Court Observer’s site is more racy:

Miranda theme, Berghuis v. Thompkins, was likewise a bitter, contentious, 5-4 decision.

May the police continue to interrogate a suspect, for 3 hours, after reciting the Miranda warnings, but without first obtaining the suspect's waiver of the right to remain silent? That's the Thompkins case.

Previously, the Miranda safeguards were understood to mean that interrogation is not permitted unless a suspect voluntarily and knowingly waives the right to remain silent. (And that is exactly how the federal appeals court had ruled in this case.) But now, after the Supreme Court's decision in  Thompkins,  interrogation is permitted unless the suspect clearly invokes that right. The presumption of interrogation validity has been reversed.

In Thompkins, the defendant was arrested for murder and questioned in jail by police detectives for 3 hours. He was read the Miranda warnings, including: "You have the right to remain silent. Anything you say may and will be used against you in a court of law." The police asked him to sign the form saying he waived his rights. He refused.

Nevertheless, the police proceeded to question the defendant for 3 hours. He said virtually nothing in response. He answered only a few times, and then with a single word. At the end of the 3 hours, the police asked the defendant about his religion and, ultimately, if he prayed to God for forgiveness for the murder. To that, he answered "Yes."

That one-word response was used against the defendant at trial, and he was convicted. The federal appeals court, the 6th Circuit, reversed the conviction. That court ruled that the defendant's Miranda rights were violated because the police persisted in questioning him despite his refusal to waive those rights, and despite his continued silence for nearly 3 hours.

The Supreme Court took a different view of Miranda rights--different than the federal appeals court and different than its own previous decisions--and reinstated the conviction. According to the bare majority, the defendant's Miranda rights were not violated. According to them, the Miranda safeguards do not require an explicit waiver by the defendant. They do require that the defendant unambiguously invoke his rights.

Stated otherwise, the police don't have to obtain a defendant's clear waiver--i.e., his agreement to forgo his right to silence and allow interrogation. Instead, the defendant must clearly invoke his rights--i.e., expressly say he wants to remain silent or actually remain silent throughout the questioning.

The italicised ‘refinements’ permitted by the US Supreme Court are like a speck of salt that might tilt the sensitive ‘chemical balance’ of Justice in the respective country, but will hardly sway the crude balance- tarazu our Blind-folded Lady of Justice displays in her august hands for the benefit of the citizens of India..

The crux of the issue is this: the basic context in the two societies is so different- the faithful ally of Confession is Torture, the acceptability of which is perhaps spontaneous in our society. It’s of a piece with the Giffen’s Theory of Complementary Goods we study in Economics. Hence the greater store we tend to store by Confession.

One recalls what the bumbling Scotland Yard detectives led by Lestrade intoned when Sherlock Holmes facilitated the arrest of a suspect.  As kids that was our first introduction to Criminal Law Procedure, and thattt has put us on the wrong ‘libertine’ trail, we suppose. The equivalent of Miranda Warning in England and Wales is something to the effect that "you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Comrades in Arms: Confession and Torture:


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