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米兰达警告:“你有权保持沉默,否则……”

(2009-05-23 10:28:38)
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美国宪法

第五修正案

原文与译文

杂谈

分类: 随感

在美国影视作品中,在警察逮捕一个人的时候,我们常常听到警察有这么一句口头禅:“你有权保持沉默,否则你所说的一切都能够而且将会在法庭上作为指控你的不利证据。”

 

这句话文绉绉的不容易懂,翻译成老百姓的话,那就是这样:“无论我问你什么,你都可以装聋作哑,不回答我,宪法赋予你这个权力。如果你是个大傻瓜,我问你什么,你就回答,你就备不住说出什么对你不利的话。可是,只要你现在说了什么话,我就都会记录下来。到将来你在法庭受审的时候,我的记事本会交给法庭;到那个时候,如果你才发现自己说的话对你不利,你就后悔不及了,因为你自己当初说的那些话,可成为对你不利的证据。”

 

因此,任何还没丧失理智的人,在被捕的时候,只要乖乖地伸出手接受手铐就可以了,千万别张口。因此,也有人即便张口说话,说的也是这么一句:“我要见我的律师。”因为律师会告诉他,说什么有利,说什么倒霉。

 

以我们一般人的思想习惯来看,美国的法律和警察似乎透着傻瓜,竟然告诉嫌疑人不要说话。我们似乎觉得如下做法似乎是正常的:警察首先给嫌疑人两个耳光子,再补上两脚:“小子,说!知道大爷为什么抓你?老实交代,你到这儿干嘛?你跟那边那个家伙是什么关系,嗯?——不说?乃乃的,我看你是欠揍!”

 

正是因为美国的、中国的、全世界的警察都趋向于这么个德性,因此你就不得不佩服美国宪法制定者的智慧,他们首先是保护嫌疑人,在法庭判决之前,嫌疑人被视为清白无罪。

 

美国警察的那句口头禅,法律根据是《宪法第五修正案》:

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

译文】除非根据大陪审团的报告或起诉书,任何人不受死罪或其他重罪的审判,但发生在陆、海军中或发生在战时或出现公共危险时服役的民兵中的案件除外;任何人不得因同一犯罪行为而两次遭受生命或身体的危害;不得在任何刑事案件中被迫自证其罪;不经正当法律程序,不得被剥夺生命、自由或财产。不给予公平赔偿,私有财产不得充作公用。

 

我在上面用老百姓的话解释了“米兰达警告”,那是有必要的。警察连珠炮似的冒出那一通官话,你听不懂是太可能了,因此,米兰达警告有一个更耐心细致的版本(见下面的材料),我翻译如下:

 

You have the right to remain silent and refuse to answer questions. Do you understand?

你有权保持沉默,有权拒绝回答问题。你明白吗?

Anything you do say may be used against you in a court of law. Do you understand?

你说的任何东西,在法庭上可能对你不利。你明白吗?

You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?

在对警察说话之前,你有权咨询律师;你有权在现在和将来的问答期间让一名律师在场。你明白吗?

If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?

如果你请不起律师,如果你愿意,在问答之前会为你指派一名律师。你明白吗?

If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?

如果你决定现在就回答问题而不要律师在场,你有权在任何时候停止回答问题,然后跟律师讲话。你明白吗?

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

知道而且明白了我才对你解释的这些你所拥有的权力,你愿意在没有律师在场的情况下回答我的问题吗?

 

简直就像给婴儿喂奶一般的周到、耐烦。我读了这一套,也忍俊不禁,这是因为我对法律的理解和美国的宪法精神不一样。咱总觉得法律是保护社会、国家的,但美国宪法保护一个一个具体的、会喘气的、高的、胖的、矮的、瘦的、白的、黑的、黄的、穷的、富的“人”!

 

那些爱国主义又要指责我崇洋媚外了。的确,我太羡慕这种法律了!

 

我并非不知道在美国的现实中,宪法精神总是能够落到实处,他们的警察有时候不也打人吗?但我请那些缺乏逻辑感的人明白:摆出美国警察打人的案例,然后说美国宪法是虚伪的,这是某种中国式的逻辑,而非人类的逻辑。假如美国警察天生地文雅,从来不会粗鲁,那么“米兰达警告”在很大程度上也不需要了。正是因为美国人和中国人以及所有的人一样,天生具有滥用权力的趋向,因此美国的圣人们才发明了他们的宪法,而我们还没有那样的宪法,起码也没有宪法精神。

--------------------

 

The Miranda Warning

 

The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.

 

Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.

 

This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.

 

Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."

 

Note that one need not be Mirandized to be arrested. There is a difference between being arrested and being questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.

 

As for Ernesto Miranda, his conviction was thrown out, though he did not become a free man. The police had other evidence that was independent of the confession, and when Miranda was tried a second time, he was convicted again. After release from prison, Miranda was killed in a barroom brawl in 1976.

 

--------------------------------------------------------------------------------

 

The following is a minimal Miranda warning, as outlined in the Miranda v Arizona case.

 

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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

 

The following is a much more verbose Miranda warning, designed to cover all bases that a detainee might encounter while in police custody. A detainee may be asked to sign a statement acknowledging the following.

 

You have the right to remain silent and refuse to answer questions. Do you understand?

Anything you do say may be used against you in a court of law. Do you understand?

You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?

If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?

If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

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