0

In the U.S.A., statements made by persons under arrest who have not been notified of their right to remain silent have been considered inadmissible in criminal trials at least since the ruling in Miranda v. Arizona in the 1960s. Since then such notifications have been known in the U.S.A. as "Miranda warnings."

However, not all such notices to persons under arrest have their origins in that ruling.

  • In the 1980 South African movie The Gods Must Be Crazy, a person being arrested in Botswana is given such a notice.

  • Detective fiction is a genre that I think may have originated in England in the 19th century (some decades before the first Sherlock Holmes stories appeared, I think). Some years ago I read a 19th-century English detective story in which such a notice was given by a constable of the Metropolitan Police. (I don't remember the title or the name of the author.)

Does anyone know a history of such notices that begins earlier than the Miranda case?

1
  • 2
    "statements made by persons under arrest who have not been notified of their right to remain silent have been considered inadmissible in criminal trials" is not correct. Miranda warnings only apply to those who are both held in custody and undergoing questioning.
    – Tiger Guy
    Commented Jan 16 at 22:23

1 Answer 1

3

Cautions have a pretty long history. As discussed in the US Supreme Court case Bram v. United States, they date back in English law at least to 1833 with codification in 1848. The catch is that these cautions were to be given by magistrates when a defendant was asked if they had an answer to the charges. The text from the 1848 statute was

Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial.

Rules for police have to be read in light of the suspicion of police interrogation around this time. A suspect might be asked to tell their side, but there was heavy focus on whether any confession was truly voluntary. Bram describes this as follows:

The attempt on the part of a police officer to obtain a confession by interrogating has been often reproved by the English courts as unfair to the prisoner, and as approaching dangerously near to a violation of the rule protecting an accused from being compelled to testify against himself. Berriman's Case, (1854) 6 Cox C.C. 388; Cheverton's Case, (1862) 2 F. & F. 833; Mick's Case, (1863) 3 F. & F. 822; Reagan's Case, (1867) 17 L.T.(N. S.) 325; and Reason's Case, (1872) 12 Cox C.C. 228.

While police weren't really encouraged to interrogate, when they did ask questions a caution was at least part of the conversation. Bram cites the 1842 case R v. Fleming and the 1852 case R v. Baldry, where police questioning was inadmissible or admissible based in part on whether there was enough of a caution given to remind the suspect that he could remain silent.

Moving to actual Commonwealth sources (I couldn't find a lot of referenced cases and documents and am using secondary sources instead), the Police Code by Sir Howard Vincent is a good example of skepticism of the very idea of questioning people in custody. From the original foreword by Lord Brampton (who seems to have had a reputation as a hanging judge, so probably wasn't overly sympathetic to defendants):

When a crime has been committed, and you are engaged in endeavouring to discover the author of it, there is no objection to your making inquiries of, or putting questions to, any person from whom you think you can obtain useful information. It is your duty to discover the criminal if you can, and to do this you must make such inquiries, and if in the course of them you should chance to interrogate and to receive answers from a man who turns out to be the criminal himself, and who inculpates himself by these answers, they are nevertheless admissible in evidence, and may be used against him.

When, however, a Constable has a warrant to arrest, or is about to arrest a person on his own authority, or has a person in custody for a crime, it is wrong to question such person touching the crime of which he is accused. Neither judge, magistrate nor juryman, can interrogate an accused person—unless he tenders himself as a witness, or require him to answer questions tending to incriminate himself. Much less, then, ought a Constable to do so, whose duty as regards that person is simply to arrest and detain him in safe custody. On arresting a man a Constable ought simply to read his warrant, or tell the accused the nature of the charge upon which he is arrested, leaving it to the person so arrested to say anything or nothing as he pleases. For a Constable to press any accused person to say anything with reference to the crime of which he is accused is very wrong. [...] But he ought not by anything he says or does, to invite or encourage an accused person to make any statement, without first cautioning him that he is not bound to say anything tending to criminate himself, and that anything he says may be used against him.

Note, too, the reference to a caution in this foreword.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .