Saturday, May 24, 2014

History of the Miranda Warning

Many Americans (particularly in the ornery mood that the country is in now) probably imagine that the right against self-incrimination as currently enshrined in the Miranda Warning was some kind of new-fangled liberalistic criminal-coddling innovation  dreamed up by the Warren Court, sparked by the case of some perp who was probably guilty as hell.   Of course, it is basically a pretty straightforward application of the Fifth Amendment to that Communist tract known as the Constitution of the United States.   But let all that lie.  Our purpose here is more along the lines of the literary.

Wikipedia, that invaluable über-solon, notes English precedent, citing evidence from, of all things, some classic novels (and two of my favorite, in fact):

Warnings regarding the right against self-incrimination may have originated in England and Wales. In 1912, the judges of the King's Bench issued the Judges' Rules. These provided that, when a police member had admissible evidence to suspect a person of an offence and wished to question that suspect about an offence, the officer should first caution the person that he was entitled to remain silent. However, the warning about the possibility of anything the suspect said being potentially used against him predates even that: it appears for example in Sir Arthur Conan Doyle's novel The Sign of the Four, published in 1890 (Chapter 6: Sherlock Holmes Gives a Demonstration"):

    "Mr. Sholto, it is my duty to inform you that anything which you may say will be used against you. I arrest you in the Queen’s name as being concerned in the death of your brother.”

as well as G. K. Chesterton's novel The Ball and the Cross, published in 1909 (Chapter X: "The Swords Rejoined"):

    "No, sir," said the sergeant; "though most of the people talk French. This is the island called St. Loup, sir, an island in the Channel. We've been sent down specially from London, as you were such specially distinguished criminals, if you'll allow me to say so. Which reminds me to warn you that anything you say may be used against you at your trial."

It is rare indeed that I can bring forward anything to correct or complement Wikipedia;  but in the spirit of an etymologist (which for a time was my day-job) bringing forward an Earliest Attestation,  let me present this one, from Bleak House, published in 1853:

“Now, George: duty, as you know very well, is one thing, and conversation is another.  It’s my duty to inform you that any observations you may make  will be liable to be used against you.  Therefore, George, be careful what you say.  You don’t happen to have heard of a murder?”
“Now, George, bear in mind what I’ve said to you.  I ask you nothing.  I say, you don’t happen to have heard of a murder?”

The highlighted passage sounds as though it might be echoing some formal written text.  But a few chapters later, when the inspector gets his hands upon the actual murderess -- a Frenchwoman -- he addresses her in less formal terms:

“I’ll give you a piece of advice, and it’s this.  Don’t you talk too much.  You’re not expected to say anything here, and you can’t keep too quiet a tongue in your head.  In short, the less you Parlay, the better, you know.”

The limb of the law who utters these sterling words, is none other than Inspector Bucket, whom duty compels  to arrest a friend.  And here in Bleak House, we have another precedent as well, since Inspector Bucket is regularly cited as a forerunner of the fictional detective, thus helping to launch the whole illustrious genre of the whodunit, in which the island of England long outstripped every other race.  Indeed, the success of that stream of fiction, and the subtlety and decency of English criminal code, are not unrelated.  You would never have an Hercule Poirot in a dictatorship.

Mind what you say, now ...


Literary post-note:
The accused in this case, the old trooper George, himself takes a stoic, manly stance towards the warning he has been given:

“I must come off clear and full  or not at all.  Therefore, when I hear stated against me  what is true, I say it’s true;  and when they tell me, ‘whatever you say will be used,’ I tell them I don’t mind that;  I mean it to be used.  If they can’t make me innocent out of the whole truth, they are not likely to do it out of anything less, or anything else.  And if they are, it’s worth nothing to me.”
-- Bleak House, chapter LII

Moreover, he refuses a lawyer:  “I don’t take kindly to the breed.”

Altogether, the old trooper George is one of Dickens’ most admirable creations (or evocations).  And he is brought stunningly to life in the audiobook reading by David Case (a.k.a. Frederick Davidson), who likewise did a memorable job with the related (but still distinct) character of Major Bagstock in in audiobook of Dombey and Son.

 For more on Bleak House:

      A scholium ad "A Lost Fragment of 'Our Mutual Friend'"



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