Tuesday, July 7, 2020

Miranda Rights and Pop-Culture

“You have the right to remain silent…”

Yes, we’ve all heard those romantic lines before, and certainly know what words follow.

The U.S. Supreme Court’s June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings’ well-established place in popular culture, the editorial acknowledged that, “[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV.” Professors Richard Leo and George Thomas have similarly observed “suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring,” and that “it is because of these shows and the mass media more generally – not the police, the legal system, or Supreme Court doctrine – that Miranda has become so much a part of our national culture.”

Critical to the Dickerson Court’s reaffirmation of Miranda was the fact of the public’s overwhelming awareness of Miranda and the fact that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.

But what would happen if the general American viewing audience (and by extension, foreign audiences), stopped hearing Miranda warnings on popular TV shows and Hollywood movies? Would Miranda rights cease to exist?

However, it may be that most people writing about the ubiquitous nature of Miranda in popular culture are describing a popular culture they remember rather than popular culture as it now exists. Judges and scholars may remember Miranda warnings used as prominent script elements in the television of their youth – the generation that came of age in the era of “Dragnet” and “Adam-12” heard Miranda warnings more times than they could count. But, as Broadcast & Cable noted, “[w]e’ve not heard a TV Miranda read in a while.” Following up on that observation, a look at several iconic cop shows from the years since Miranda demonstrates a sharply diminished role for Miranda in popular culture. What happens to the Dickerson rationale if there isn’t the repeated popular culture representations of Miranda that created a public familiar with and expecting of a caution that they have the right to remain silent? Can Miranda survive in law once its television role has been left on the cutting room floor?

An interesting new article on this hypothetical has just been published on Cleveland State Law Review, and available via SSRN here.


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