Rights Knowledge: Values and Tradeoffs

Texas Tech Law Review, Vol. 39, p. 1355, 2007

Ohio State Public Law Working Paper No. 98

29 Pages Posted: 31 Aug 2007

See all articles by Alan C. Michaels

Alan C. Michaels

Ohio State University (OSU) - Michael E. Moritz College of Law

Abstract

The charge of this Essay, part of a Symposium on knowledge of rights vis-a-vis the police, is to discuss whether it would be better if citizens had better knowledge of their rights - for example, if citizens had greater awareness of their right to remain silent or to refuse to give consent to search. This question is rather more complex than it may initially appear, and the Essay provides an analytical framework for addressing it by raising three subsidiary questions: What is the purpose of the right? What is the individual's role in effectuating the right? What effect would greater "rights knowledge" have? The Essay then considers these questions with regard to the privilege against self-incrimination and the right against unreasonable searches.

The Essay concludes that the answer to the ultimate question whether it would be better if citizens had greater knowledge of their rights is "it depends." It depends on the nature of the normative value(s) one believes supports the right in question. It depends on the normative balance one strikes between those values and crime control values. It depends on empirical questions concerning what effect greater knowledge of the right would have, both on the exercise of the right and on criminal enforcement. And it depends on empirical questions regarding what reactions might come from the criminal justice system.

Nonetheless, the Essay does reach some tentative conclusions, which closely track the observations one might make about "rights knowledge" in the adjudication context. Autonomy is one important potential value of these rights, and that value provides the best argument for greater rights knowledge. However, because individuals, on their own without an attorney, are poorly equipped to make significant use of their rights in the face of the state's enforcement power, other values that may support these rights, such as those relating to fairness or innocence, are unlikely to be much affected by greater rights knowledge. For this reason, if one wishes to strengthen values apart from autonomy, something beyond rights knowledge (for example provision of counsel, as in the adjudication context) will be necessary. Indeed, because the difficulties an individual faces in exercising rights to protect such other values may be less obvious in the police practices context than in the adjudication context, proponents of rights knowledge should be careful that such knowledge is not given greater significance than it deserves.

Keywords: Gideon, Schneckloth, Fifth Amendment, Miranda, Fourth Amendment

JEL Classification: K14, K42

Suggested Citation

Michaels, Alan C., Rights Knowledge: Values and Tradeoffs. Texas Tech Law Review, Vol. 39, p. 1355, 2007, Ohio State Public Law Working Paper No. 98, Available at SSRN: https://ssrn.com/abstract=1008917

Alan C. Michaels (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

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