Miranda rule. Impact on the Romanian Criminal Trial

• Author: Mircea Damaschin, Corina Dumitru
• Pages: 153-164

This paper has been prepared within the research project „Standardization of Judicial Practice and Harmonization With the ECHR Jurisprudence, a Mandatory Condition to Enforce Justice. Legislative Proposal to Grant Aconsistent Judicial Practice” (ID-1094) financed by the Romanian Minister of Education, Research, Youth and Sports

Mircea Damaschin. Lecturer Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: mircea.damaschin.lesij@univnt.ro).

Corina Dumitru. Student, Law Faculty, “Nicolae Titulescu” University, Bucharest (dumitru.i.corina@gmail.com).

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Introduction

“You have the right to remain silent. Anything you say can be used against you in court. You have the right to the presence of an attorney. If you cannot afford an attorney, one will be appointed for you prior to any questioning”. Here is how the Miranda rule applies, also known as “the defendant's right against self-incrimination", the rule which originated from a famous trial in the United States of America, the case Miranda vs. Arizona.

The right to remain silent is also defined in the most important international human rights documents. Therefore, by the meaning of art. 14 par. 3, lett. g of the International Covenant on Civil and Political Rights, everyone charged with a criminal offence shall have the right, in full equality, not to be compelled to testify against himself or to confess guilt.

After the global echoes of this trial and by reporting to the content of the most important international document adopted in the field of human rights, the Romania legislator introduced for the first time in the Code of criminal procedure the accused or defendant’s right not to be compelled to testify against himself in 2003, with Law no. 281¹. Thus, the right to remain silent was defined in a previous distinct procedure, in principle, taking the first statement, procedure within which the accused or defendant is informed of the following aspects: regarding the deed committed, what is the legal framing thereof, which lead to defense and that he/she can benefit

Literature review

The Miranda rule had many international reviews, especially in the American legal space. In this sense we refer to a series of articles: Peter Arenella, Miranda Stories, in Harvard Journal of Law and Public Policy, no. 20, 1997, p. 375-387; Gerald M. Caplan, Questioning Miranda, in Vanderbilt Law Review, no. 38/1985, p. 1417-1476; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, in Northwestern University Law Review, no. 90/1996, p. 1084-1124; Paul G. Cassell, Hayman S. Brett, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, in U.C.L.A. Law Review, no. 43/1996, p. 839-931; Floyd Feeney, Police Clearance: A Poor Way to Measure the Impact of Miranda on the Police, in Rutgers Law Journal, no. 32/2000, p. 1-114; Alfredo Garcia, Is Miranda Dead, Was It Overruled, or Is It Irrelevant?, in St. Thomas Law Review, no.10/2000, p. 461-505; Yale Kamisar, Remembering the 'Old World' of Criminal Procedure: A Reply to Professor Grano, in University of Michigan Journal of Law Reform, no. 23/1990, p. 537-589; Yale Kamisar, Can (Did) Congress 'Overrule' Miranda?, in Cornell Law Review, no. 85/2000, p. 883-955; Richard A. Leo, White S. Welsh, Adapting to Miranda: Modern Interrogators' Strategies for Dealing with the Obstacles Posed by Miranda, in Minnesota Law Review, no. 84/1999, p. 397-472; William Stuntz, Miranda's Mistake, in Michigan Law Review, no. 99/2001, p. 975-999; George C. Thomas III, The End of the Road for Miranda v. Arizona?: On the History and Future of Rules for Police Interrogation, in American Criminal Law Review, no. 37/2000, p. 1-39.

The issue of the legal authorities’ intervention in the individual’s private life, in breach of the right to inviolability of correspondence is widely debated in the national and international specialized literature. Considering a series of national studies, as follows: Ioan Lascu, Specifics of investigation and research of corruption crimes in the light of the new legal changes (Particularitati de investigare şi cercetare a infracţiunilor de corupţie in lumina noilor modificări legislative)e, Dreptul magazine no. 11/2002, p. 137-148; Mircea Damaschin, Audio or video recordings and photographs, Criminal law magazine no. 3/2001, p. 49-56; Augustin Lazăr, Interceptions and audio and video recordings (Interceptările şi inregistrările audio sau video), Criminal law magazine no. 4/2003, p. 36-51; Angela Hărăştăşanu, Intercepting and recording calls or communications, Interceptarea şi inregistrarea convorbirilor sau comunicărilor, Criminal law magazine no. 2/2004, p. 69-75; Dan Lupaşcu, Some observations on the interceptations and audio or video recordings, Law Magazine no. 2/2005, p. 169-171; Camelia Bogdan, Audio and video interceptions, Criminal law magazine, no. 1/2006, p. 106-113.

Miranda rule Impact on the Romanian criminal process

1. Miranda Rule and the criminal trial in the United States of America

The right to remain silent was for the first time brought into question by the Supreme Court of the United States of America, in a trial in which the person accused was Ernesto Arturo Miranda, trial that released echoes which resulted legal changes and various controversies².

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Therefore, in 1963, Ernesto Arturo Miranda was arrested for rape and abduction crimes. At the headquarters of the police in Phoenix he confirmed committing the crimes he was charged with in a declaration. But before giving the declaration, he was not read his rights, respectively the right to remain silent and to have an attorney. In spite of the objections raised by its lawyer, during the trial that followed, the court sentenced him to 20 years in prison, decision which was maintained in appeal. In this context, the case reached the Supreme Court of the State of Arizona, the defense invoking the non-admission of the declaration made by the police authorities of the city of Phoenix in the conditions of breach of the procedure of informing the defendant on the rights held at that particular time. The supreme court of the state of Arizona admitted the request of non-admittance of the declaration taken from Ernesto Arturo Miranda. The court defended the decision taken, by invoking the 5^th amendment from the Constitution of the United States of America, in the context of non-informing the defendant of the right to remain silent and possibility to have a lawyer chosen or assigned by default³. In addition, the supreme court of the state of Arizona referred to the existence of studies that mention the existence of practices of police officers that use of methods that could be considered acts of torture (display of a distrusting attitude towards the innocence of the suspect, appeal to emotional subterfuges, rebuilding the scenario of the criminal activity from which the reality of committing the action by the latter was implied, presenting an eventual procedure in which the only advantageous possibility for the suspect was to assume guilt, etc).

Practically, the court admitted the request of the defense of considering the need to institute trial guarantees to determine the observance of the suspect’s privilege against self-incrimination, otherwise the presumption of constraint can be retained. In this sense, the court ruled that legal authorities of the state must edict norms with an objective right of observance of the right to remain silent.

The decision of the Supreme Court of the state of Arizona generated a number of controversies. So, if for the liberals this rule represents not only the respect for the individual's civil rights but also a protection against the coercive force of the legal state authorities, for conservators the rule is defined as “the embodiment of the worst sins of liberalism”. In this sense, Richard M. Nixon accused this rule of undermining the police efficiency and promised that in the election campaign he will name judges which will be "strictly conservators" and who will exercise the legal power with authority. Nixon also declared that this rule will lead to the increase of criminality⁴.

In spite of the large opposite current, in 1968 the Miranda rule was voted by the USA Congress, the legal framework being included in the Code of criminal procedure of the USA. (Title 18, Part 2, Chapter 223, Section 3501, „admissibility of the confessions”). According to this rule, in any criminal trial in the USA, a confession can be admitted only if it is willingly made, without any constraint. Before admitting the declaration of admittance of guilt as evidence, thePage 156 judge, in lack of a jury, must analyze the circumstances in which it was obtained. The law compels the judges to take into account, upon ruling on the admissibility of guilt, the following circumstances:

1. if the defendant knew or not at the moment of delivering the confession of the nature of the prosecution brought against him;

2. if he/she was informed of its right not to issue any declaration and that any declaration can be used against him/her;

3. if the defendant was informed before making the statement on its right to a lawyer;

4. if at the moment of the making the confession the accused was or not in the presence of a lawyer;

5. of the time elapsed from its arrest and charging and if the declaration was made after his arrest, but before being charged.⁵

   Furthermore, in the text of the law it is mentioned that the declaration of recognition of guilt can be obtained as an oral confession as well as a written...