Having Our Rights Is Not the Same As Understanding Them

The Supreme Court recently held that police, warrant-free, can take your DNA if you're arrested for a serious crime. If you turn out to be innocent, your DNA can still be kept on file and shared with the FBI. Earlier this term, the Court faced a related question: if police suspect you of drunk driving, can they make you take a blood test? (Answer: not without a warrant.)

I'm guessing that unless you practice criminal law, you couldn't have predicted these rulings -- even if you're a responsible, well-educated American citizen who knows the Fourth Amendment by heart.

When you're trying to figure out what the cops can legally do, the Constitution ends up being less helpful than you might hope. Here's a pop quiz: # 1: Steve is charged with a misdemeanor punishable by a fine or community service. His case goes to trial and he can't afford a lawyer. Does he have a right to one? # 2: If the police have no warrant, and no suspicion, that Sarah has committed a crime, can they look at the phone numbers she's dialed from home?

The answer to # 1 is no; # 2 is yes. If you got one or both wrong, you're in good company -- so did over 80 percent of participants in a recent study I conducted.

Most of us think we know our rights, but this turns out to be true only in the most general sense. Thanks to John Grisham, CSI and high school civics, we know police are supposed to get search warrants. We can recite the Miranda warning by heart. But my research shows that when we're faced with questions about our rights, we pluck broad principles from the cultural ether -- "I have the right to remain silent" or "the cops need a warrant to search my house" -- and then apply them. This intuitive approach results in answers that are as wrong as they are logical.

But if we don't know our rights, don't we have only ourselves to blame? Aren't we supposed to be informed citizens?

It's a nice thought, but an unrealistic one. Amendments 4, 5, and 6 -- the backbone of the Constitution's instructions on criminal procedure -- have borne an intricate scaffolding of caselaw. Assuming we know our rights is like assuming everyone reads the license agreement before installing an iTunes update. In fact, the assumption that people won't always read contracts is built into law: a contractual term no one in her right mind would expect can't be enforced. (Even if Apple slipped in a clause requiring you to surrender your household pets to Apple headquarters, it's doubtful that a judge would order Fluffy to Cupertino.) But criminal procedure has no such safety valve. And in criminal procedure, the stakes are higher.

Our misapprehensions especially matter because you're often required to assert your right before you can use it; you're unlikely to assert something you don't know you have. The cops can stop you for speeding and "ask" you to pop your trunk, but needn't mention that you're allowed to say no. As Justice Brennan wrote 40 years ago, "It wholly escapes me how citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence."

Theoretically, the Miranda warnings remind us of our rights to remain silent and retain a lawyer, but exceptions and caveats have made swiss cheese of Earl Warren's vision. Plus, the warnings leave out some things you might like to know. Would you have guessed that just being silent doesn't count as "asserting" your right to silence? Or that police are allowed to lie to you (e.g., saying your fingerprints were on the murder weapon when they really weren't)?

The most obvious solution is simply to inform suspects if there's a right they might want to assert. And the main reason to oppose doing so is the fear that people might actually use their rights. This fear may have occurred to you already -- I can't deny it's crossed my own mind -- and we should be ashamed. The alternative, after all, is an investigatory system where cases are built on the backs of people's (completely understandable) dearth of knowledge. In truth, the only people likely to know their rights in any detail are those who frequent the system. It's a little like the argument that if you criminalize gun ownership, only criminals will have guns: if you don't give people enough knowledge to assert their rights, only criminals are likely to have this knowledge.

As the Supreme Court's criminal procedure jurisprudence becomes more and more like a giant game of Jenga, our public dialogue needs to shift. We can't just talk about which rights we possess; we need to talk about how effectively they can be used -- and how well they match what we think we know.