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This article has been written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. The author describes and analyzes the Miranda Rights in America and compares them with the Indian law.


Miranda rights are the rights that are exercisable by the people of America who are taken under arrest or detention and will be interrogated by the police officers. It requires the officers to inform certain facts and rights before they begin the interrogation.

Miranda v. Arizona (facts)

The roots of the famous Miranda rights are to be found in the 1966 landmark Supreme Court case of Miranda v. Arizona [1]. Ernesto Miranda was arrested by the police under the charges of kidnapping and rape. The interrogation went on for about two hours in the police custody after which Miranda signed a confession admitting to the commission of those crimes. The confession was then used as evidence by the prosecution at his trial based on which Miranda was then convicted. Miranda’s lawyers upon learning that he was not informed of his constitutional rights of right to a lawyer and the right to remain silent, filed an appeal before the U.S Supreme Court.

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Whether the statements obtained from an individual under custodial police interrogation are admissible against him in a criminal trial and whether procedures assuring that the individual gets the benefit privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself are necessary.

Observations of the Court

The Supreme Court overturned Miranda’s conviction in its ruling and further established guidelines for how suspects when in police custody are to be informed of their constitutional rights. The decision combined three other cases that dealt with similar subject matter. In each of those cases, the defendants were questioned by police officers, detectives, or a prosecuting attorney while being cut off from the outside world. They were not given any effective warning or instruction of their rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed statements that were admitted at trial.

Thus, the Court stated that a person should be duly informed about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that the statements made during the investigation and after their detention can be used in court against them.

It was declared that Miranda’s confession could not be used as evidence in a criminal trial. Chief Justice Warren in his opinion further outlined police procedure to ensure that defendants are clearly informed of their rights as they are being detained and interrogated. The Supreme Court observed that Miranda’s confession was rather coerced and should not have been used as evidence because he was not made aware of his rights to remain silent and have an attorney present during interrogation. It emphasized that any confession must be completely the outcome of free will. And to that end, the Court outlined the Miranda warnings. Those police procedures were encapsulated in the Miranda Warning, which were then circulated to all the police departments nationwide soon.

Miranda warning

The famous Miranda warning reads :- “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 an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” But each state determines how its law enforcement officers issue the warning.

The person can choose to remain silent so as to avoid making any statement that can later be used in a self incriminatory nature against him. The person has a right to legal assistance and has an attorney present during the time of interrogation. To further make the understanding of the rights clear, the person must be informed that if they cannot afford an attorney, one will be provided to them at the government’s expense.

However, these rights are only applicable by law enforcement when a person is in police custody (and usually under arrest) and about to be interrogated. Anything that is said to an investigator or police officer before being taken into custody and read your Miranda rights can be used against that person in a court of law. 

In custodial interrogation only, the right allows one to choose not to answer an officer’s questions and request for a lawyer. However, one must clearly communicate in order to invoke their Miranda rights. Conversely, if a person answers questions after being given Miranda warnings, it is then considered that the person has knowingly waived his or her Miranda rights. But invoking the rights is not just a one-time event. It may be invoked at any time during the interrogation, even after answering some questions. The rights continue to protect even after one waives them after an arrest. Nevertheless, once such rights are invoked, the interrogation must end.

What happens when not informed about the Miranda rights

If a suspect is questioned when in custody without first being given the Miranda warning, the statements of the confession are automatically presumed to be involuntary, and cannot be used against the suspect in a self-incriminating nature in any criminal case. Even any such evidence if discovered as a result of that record will also not be considered for the case. However, the police may ask certain basic questions like that of name, address and the like without having to read the Miranda rights.

Fifth and Sixth Amendment of the American Constitution

The Miranda warning includes a couple of rights that actually derive their elements from the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).  

Fifth Amendment of 1791 to the Constitution of the United States and a part of the Bill of Rights stipulates the procedural safeguards in times of criminal accusation in order to protect the rights and to secure life, liberty, and property.

The amendment states:

  • That a person shall only be held answerable for a capital or infamous crime before the presentation of a Grand Jury. With the exception in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger;
  • No such person shall be the subject for the same offence twice putting in jeopardy of life or limb;
  • No such person can be compelled to be a witness against himself in any criminal case;
  • No such person shall be deprived of life, liberty, or property without due process of law; 
  • Private property shall not be taken for public use without first providing just compensation.

Grand juries

The Fifth Amendment is distributed into five clauses each representing definite, yet related rights. Under the first clause, it requires the grand jury to make a formal “presentment” in an ex parte hearing against the person accused. Herein only the prosecution presents evidence so as to determine if there is sufficient evidence to carry a case to trial. If the grand jury finds so it issues an indictment, which then permits a trial.

Double jeopardy

The second clause, which is more commonly known as double jeopardy protects the people against the initiation of the second prosecution and multiple punishments after being acquitted or convicted once for the same facts and offence.


The third clause refers to the self-incrimination clause which protects the accused from being used as a witness against self.  According to the general notion of criminal law, a person is presumed innocent until proven guilty, and it is the responsibility of the state/prosecution to prove the existence of guilt. Since any statement made could later be used as evidence of self-incriminating nature, the clause comes in handy to protect the accused’s rights.

Due process

The fourth section is commonly referred to as the due process to ensure that justice is served and fundamental rights are preserved. It ensures that the procedural and substantive safeguards are taken into consideration and that no deprivation of life, liberty, or property takes place. The Procedural aspects generally mean the rules or methods of enforcement of substantive rights. However, controversy arises in cases where even though the procedural safeguards are followed, the substantive rights themselves are of depriving nature which would then defy the purpose no matter how diligently the procedural aspect is taken care of.

Sixth Amendment

The Sixth Amendment of 1791 to the Constitution of the United States, part of the Bill of Rights upholds the essential elements of due process while ensuring that transparency and fairness is maintained throughout the proceedings.

The text under Sixth Amendments states that the accused shall have the right to a speedy and public trial in all criminal prosecutions in presence of an impartial jury of the State and district wherein the crime shall have been committed. The accused has to be informed of the nature and cause of the alleged accusation, to be confronted with the witnesses against him, to have a compulsory process for obtaining witnesses in his favour, and to have the legal assistance of an attorney for his defence.

It ensures the right of the accused to effective legal assistance of an attorney during the critical stages of criminal prosecution and when facing charges. Where it has been held by the Supreme Court that the critical stages include arraignment, post-indictment line-ups, post-indictment interrogation, plea negotiations, and entering a plea of guilty. They are initiated through a formal charge, preliminary hearing, information, indictment, or arraignment. The right to counsel under the Sixth Amendment is also offence specific meaning that the suspect is entitled to have their attorney present at interrogations and proceedings involving the said offence however police may continue to interrogate on other matters in absence of the attorney which was the basis for the aforementioned United States Supreme Court ruling that being in jail or prison does not mean “in custody” for Miranda.

The right ensures that the suspects are made aware of the crimes they are accused of committing, which is mostly done by way of an indictment, with a very detailed list of charges for which the criminally accused will be tried. The confrontation clause further requires that the accused are aware of their right of being confronted with the witnesses against them. It allows gathering witnesses for cross-examination as well as enables the defendants to meet their accusers.

Comparison with the Indian legal system

In the Indian Constitution, Art 22(1) states that the custodial detention of a person arrested cannot take place without informing him of the grounds of such arrest. And that he shall be given the right to consult and the right to be defended by a legal practitioner of his choice. Specific guidelines have been laid down by the Supreme Court of India in 1997 that are to be followed when making arrests, including that the person arrested must be made aware of the right “to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.” [2]

Further under Art. 20(3) of the Constitution, it is stated that a person accused for commission of an offence shall not be compelled to be a witness against himself. Even under Section 25 of the Indian Evidence Act, 1872, a person making a confessional statement before a police officer would be considered inadmissible as evidence against him for the offence. Section 162 of the Cr.P.C further stipulates that the statements made to the police during an investigation cannot be put in writing and signed by the person making them make it admissible to an inquiry or a trial for the offence which is being investigated. A form of this confession rule appears to have been included in Cr.P.C when it was first enacted in1861.[3] In 1960, the Supreme Court noted in a case that the law in respect to confessions and caution appeared to be as follows: “(1) that no statement made to a police officer by any person was provable at the trial which included the accused person, and (2) that no caution was to be given to a person making a statement.”

According to the Cr.P.C, under section 164(1), only a Metropolitan Magistrate or Judicial Magistrate can record the confessions and statements made during the course of an investigation  Provided prior to recording any confession, the person must be explained by the Magistrate that he is not bound to make a confession and if he does so it might be later used as evidence against him. Further, under Section 164(2), no such confession shall be recorded by the Magistrate unless he has a reason to believe that it is being made voluntarily upon questioning.


Thus it is important for people as responsible citizens to be well aware of their rights and duties as much as possible but where they fail to do so, it becomes the duty of the State and the Court to act as the guardian of its citizen’s rights and especially for those who are unable to protect themselves.


[1] Miranda v. Arizona, 384 U.S. 436

[2] D.K. Basu v. State of West Bengal (1997) 1 S.C.C. 216

[3] Code of Criminal Procedure, Act No. 25 of 1861, 149, oldlegislation/cripc1861/Chapter%209.pdf

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