Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P11 doc

meeting or official proceeding; a record kept by
courts and corporations for future reference.
MIRANDA V. ARIZONA
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), was a landmark
decision in the field of
CRIMINAL PROCEDURE.In
Miranda, the U.S. Supreme Court declared a set
of specific rights for criminal defendants. The
Miranda warning, named after Ernesto Miran-
da, one of the petitioners in the case, is a list of
rights that a law enforcement officer must read
to anyone arrested for a criminal act.
Before the U.S. Supreme Court’s decision in
Miranda, the law governing custodial interro-
gation of criminal suspects varied from state to
state. In many states, statements made by
criminal defendants who were in custody and
under interrogation by law enforcement offi-
cials were admissible at trial, even though the
defendants had not been advised of their legal
rights. If the totality of the circumstances
surrounding the statements indicated that the
suspect had made the statements voluntarily, it
did not matter that officers had not apprised the
suspect of his legal rights.
The totality of the circumstances rule was
effective even if a
DEFENDANT was in custody.
Generally a defendant was considered to be in
custody if the person was not free to leave the

presence of law enforcement officers. The basic
legal rights for criminal defendants subjected to
CUSTODIAL INTERROGATION included the FIFTH
AMENDMENT
right against SELF-INCRIMINATION and
the RIGHT TO COUNSEL. This latter right was
established by the court two years earlier in
Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758,
12 L. Ed. 2d 977 (1964).
The Miranda case involved four criminal
defendants. Each of the defendants was appeal-
ing a conviction based in part on the failure of
law enforcement officers to advise him, prior to
custodial interrogation, of his right to an
attorney or his right to remain silent.
Ernesto Miranda, the first defendant listed
in the case, was arrested on March 18, 1963, at
his home in Arizona and taken to a Phoenix
police station. At the station, witnesses identi-
fied Miranda as a rapist. Police then took
Miranda to an interrogation room, where he
was questioned by two police officers.
The officers did not tell Miranda that he had a
right to an attorney, and Miranda confessed to
the crime in two hours. Miranda wrote a
confession on a piece of paper and signed it. At
the top of the paper was a typed statement saying
that Miranda had made the confession voluntari-
ly and with full knowledge of his legal rights.
Miranda was convicted in an Arizona state court

of
RAPE and KIDNAPPING. The circumstances
involving the other three defendants were similar,
all three confessing after a period of custodial
interrogation without the assistance of legal
counsel.
The U.S. Supreme Court agreed to hear
appeals from all four defendants, joining the
appeals into a single review. A divided court
affirmed the California Supreme Court’s decision
against one of the defendants and reversed the
guilty verdicts against Miranda and the other two.
The majority opinion, written by Chief
Justice
EARL WARREN, began with a review of
police interrogation activities and a detailed
formulation of new rules for law enforcement
personnel.
The opening of the Miranda majority
opinion set a grave tone:
The cases before us raise questions which go
to the roots of American criminal
JURISPRU-
DENCE
: the restraints society must observe
consistent with the Federal Constitution in
prosecuting individuals for crime. More
specifically, we deal with the admissibility
of statements obtained from an individual
who is subjected to custodial police interro-

gation and the necessity for procedures
which assure that the individual is accorded
his privilege under the Fifth Amendment to
the Constitution not to be compelled to
incriminate himself.
The court described in detail the unfairness
and coercion used by some law enforcement
officers engaged in interrogation. The majority
also took note of deceptive practices in interro-
gation. For example, officers would put a
suspect in a lineup and tell the person that he
or she had been identified as a suspect in the
crime as well as other crimes, even though no
such identifications had taken place. The suspect
would confess to the crime to avoid being
prosecuted for the fictitious crimes. The majority
noted that these examples were exceptions, but it
also stated that they were sufficiently widespread
to warrant concern.
The court then outlined the now-familiar
procedures that law enforcement officers would
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
88 MIRANDA V. ARIZONA
have to follow thereafter. They would have to
tell persons in custody that they have the right
to remain silent, that they have the right to an
attorney, that if they cannot afford an attorney
the court will appoint an attorney, and that
anything they say can be used against them in a
criminal prosecution.

Ultimately, the Court held that statements
made by a criminal suspect in custody would
not be admissible at trial unless the suspect had
made a knowing and intelligent waiver of his
legal rights after being apprised of the various
legal rights and after being given an opportunity
to exercise them. The majority assured the law
enforcement community that it did not intend
to hamper criminal investigations and prosecu-
tions. The court pointed out that interrogations
were still a perfectly legitimate investigative tool,
that questioning a suspect without advising the
suspect of legal rights before taking the suspect
into custody was still legitimate, and that volun-
teered statements were likew ise legitimate.
Justice
TOM CLARK dissented to the decisions
with respect to all defendants except the one
whose conviction was upheld. According to
Clark, the court should have continued to accept
the totality of the circumstances test for deter-
mining whether a defendant’s statements or
confession were made voluntarily. Clark con-
cluded that only the defendant whose conviction
was upheld gave a confession that was not
voluntary.
Justices
JOHN M. HARLAN, POTTER STEWART, and
BYRON R. WHITE dissented in all the cases. In an
opinion authored by Harlan, the

DISSENT argued
that the majority had exaggerated the evils of
normal police questioning. According to Har-
lan, “Society has always paid a stiff price for law
and order, and peaceful interrogation is not one
of the dark moments of the law.”
Another dissent by Justice White argued
that the majority had gone too far in imposing
such procedural requirements on the law
enforcement community. White predicted that
the new procedures would prevent the early
release of the truly innocent because they
discourage statements that would quickly explain
a situation. According to White, the procedures
were “a deliberate calculus to prevent interroga-
tions, to reduce the incidence of confessions and
pleas of guilty and to increase the number of
trials.”“Ihavenodesirewhatsoever,” wrote
White, “to share the responsibility for any such
impact on the present criminal process.”
The Miranda case was remarkable in at least
two ways. The opinion mandated important
procedural changes that had to be followed by
every law enforcement official across the
country. In addition, the majority opini on’s
survey of interrogation tactics sent a rare notice
to the law enforcement community–that the
court was aware of, and would not tolerate,
abuse in interrogation.
Two years after the decision in Miranda,

congressional anger at the decision led to the
passage of 18 U.S.C.A. § 3501, which restored
voluntariness as a test for admitting confessions
in federal court. The U.S.
DEPARTMENT OF JUSTICE,
however, under attorneys general of both major
political parties, refused to enforce the provi-
sion, believing the law to be unconstitutional.
The law lay dormant for several decades until
the U.S. Court of Appeals for the Fourth Circuit
ruled in 1999 that Congress had the constitu-
tional authority to pass the law. United States v.
Dickerson, 166 F.3d 667 (4th Cir. 1999).
The U.S. Supreme Court disagreed with the
Fourth Circuit. In a 7-2 decis ion, the court
ruled that because Miranda had been based on
the Fifth and Fourteenth Amendments, Con-
gress did not have the constitutional authority
to
OVERRULE the decision through legislation.
Dickerson v. United States, 530 U.S. 428, 120 S.
Ct. 2326, 147 L. Ed. 2d 405 (2000). In addition,
the Court refused to ove rrule Miranda. Chief
Justice
WILLIAM H. REHNQUIST, who has been a
frequent critic of the decision, wrote the
majority opinion that upheld the decision.
The 1966 decision of
the Supreme Court in
Miranda v. Arizona

set forth specific rights
for criminal
defendants. Ernesto
Miranda (right), one
of the petitioners,
with his attorney,
John J. Flynn.
BETTMANN/CORBIS.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
MIRANDA V. ARIZONA 89
According to Rehnquist, the ruling had become
“part of our national culture” with respect to
law enforcement.
The U.S. Supreme Court has pared down
the Miranda holding. In 1985 it held that if a
defendant makes an incriminating statement
without the Miranda warning and then later
receives the Miranda warning and confesses, the
confession shou ld not be excluded from trial
(Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285,
84 L. Ed. 2d 222 [1985]).
In Illinois v. Perkins, 496 U.S. 292, 110 S. Ct.
2394, 110 L. Ed. 2d 243 (1990), the court held
that the Miranda warning is not required when
a suspect who is unaware that he or she is
speaking to a law enforcement officer gives a
voluntary statement. In Withrow v. Williams,
507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d 407
(1993), the Court held that a prisoner cannot

base a
HABEAS CORPUS petition on the failure of
law enforcement to give Miranda rights before
interrogation.
In Moran v. Burbine, 475 U.S. 412, 106 S.
Ct. 1135, 89 L. Ed. 2d 410 (1986), however, the
Court appeared to return to the totality-of-t he-
circumstances test. In Moran, a lawyer repre-
senting a criminal suspect, Brian Burbine, called
the police station while Burbine was in custody.
The lawyer was told that Burbine would not be
questioned until the next day. In fact, Burbine
was questioned that day, and he confessed,
without requesting the lawyer and after being
read his Miranda rights. According to the
Court, the conduct of the police fell “short of
the kind of misbehavior that so shocks the
sensibilities of civilized society as to warrant a
federal intrusion into the criminal processes of
the States.” Although law enforcement had not
given Burbine a full opportunity to exercise his
right to an attorney, a 6-3 majority concluded
that, on the facts of the case, the incriminating
statements had been made voluntarily and that
excluding them was therefore not required.
Despite the narrowing of Miranda over the
years, the Court’s 1999 holding in Dickerson
continued to be cited for the proposition that
the Miranda rule was not only alive and well,
but had been elevated to the status of a

“constitutional” rule, and not just a “prophy-
lactic” rule. If Miranda were a constitutional
rule, then a violation of Miranda would be a
constitutional violation giving rise to a possible
SECTION 1983 action for a CIVIL RIGHTS violation.
It would also trigger the “fruits of the poisonous
tree” doctrine and result in the suppression of
any evidence obtained as a result of an un-
Mirandized confession. If Miranda were just a
“prophylactic” rule, then a violation of Miranda
would not necessarily render inadmissible any
evidence obtained as a result of an un-Miran-
dized confessi on and might not even render the
confession itself inadmissible, depending on the
circumstances.
The Court began to clarify this ambiguity in
Chavez v. Martinez, 538 U.S. 760, 123 S. Ct.
1994, 155 L. Ed. 2d 984 (2003). The case
involved the question of whether police officers
are required to read criminal sus pects theMir-
anda warnings even if the suspects are never
brought to trial. In 1997, Oliverio Martinez, a
farm worker, was shot and injured by police
officers during a struggle. A police sergeant, Ben
Chavez, questioned Martinez for 45 minutes
while the latter lay in a hospital bed. Chavez
never read Martinez the Miranda warnings, and
Martinez insisted that he did not want to answer
the questions. Martinez filed a 1983 action to
vindicate what he claimed was a violation of his

constitutional right to be Mirandized before an
interrogation commenced.
The Supreme Court ruled that the police
officer’s failure to read Martinez Miranda
warnings did no t violate Martinez’s constitu-
tional rights and could not be used as a basis for
recovery under 42 U.S.C.A. § 1983. In a badly
splintered 5-4 decision, Justice
CLARENCE THOMAS,
writing for the Court, said that while theMir-
anda warnings offer protection against viola-
tions of constitutional rights, the failure to
provide these warnings is not necessarily a
constitutional violation by itself. In this case,
Martinez was never required to be a witness
against himself in a criminal trial. Instead, it was
Martinez who was seeking to introduce the un-
Mirandized interrogation on his own behalf
during a civil trial he had brought to vindicate
an alleged civil rights violation. Thus, the Court
concluded that the Self-Incrimination Clause
was not directly implicated, and the fact that the
officer asked coercive quest ions did not violate
Martinez’s Fifth Amendment right against self-
incrimination.
A year later, the Court further undermined
the claim that Dickerson had made Miranda an
inviolable constitutional rule. In United States v.
Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

90 MIRANDA V. ARIZONA
2d 667 (2004), the Court reviewed a case
involving a defendant charged with being a
felon in possession of a weapon. During an
interrogation in which the defendant had not
been Mirandized, the defendant told police
where the weapon was located but did not
expressly confess to the crime. The Court held
that Miranda is just a “prophylactic” rule
designed to enforce the protection of the
Self-Incrimination Clause against coerced, in-
voluntary statements. Because the defendant
voluntarily disclosed the location of the weapon,
and the prosecution was not seeking to admit
into evidence a confession of any sort, the Court
reasoned, no Fifth Amendment violation had
occurred. Nor could the “fruit of the poisonous
tree doctrine” be applied to exclude the
introduction of the weapon at trial. The Self-
Incrimination Clause only protects witnesses
from testifying against themselves, the Court
said, and the weapon was non-testimonial
physical evidence.
On the same day that Patane was decided,
the Court handed down its opinion in Missouri
v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L.
Ed. 2d 643 (2004). The case involved the use of
a police tactic whereby the police would
interrogate a suspect in two phases. During
the initial phase, the police would aggressively

question the suspect without first reading the
Miranda warnings. If the suspect confessed to a
crime, the police would then take a break, leave
the room, and co me back a short time later to
resume questioning. However, before the sec-
ond phase of the interrogation started, the police
would read the suspect the Miranda warnings.
Because the suspect had already confes sed
during phase one, the police would persuade
the suspect that there was no reason not to
confess again. The prosecution would then seek
to introduce the second, Mirandized confession,
at trial.
In the case at hand, the defendant had been
charged with neglecting her own child, who had
died under suspicious circumstances. The
defendant was brought in for an initial phase
of ques tioning by the police and confessed to
knowledge of a plan to conceal the circum-
stances of her son’s death by burning down the
family’s mobile home. She also admitted that
during the fire, she had allowed an unrelated
mentally retarded 18-year-old, who had been
living with her family in the mobile home, to
die in the fire. With confession in hand, the
police left the interrogation room for approxi-
mately 30 minutes, returned, and persuaded the
defendant to sign a second confession retelling
the same story, but only after first reading her
the Miranda warnings.

In another 5-4 decision, Justice
DAVID SOUTER,
writing for the Court, said the that facts of this
case “by any objective measure reveal a police
strategy adapted to undermine the Miranda
warnings.” He declared that the police had
created a situation for the defendant “in which
it would have been unnatural to refuse to repeat
at the second stage what had been said before.”
Justice
ANTHONY KENNEDY provided a fifth vote
concurring with the judgment of the Court, but
in a separate opinion, Kennedy articulated a test
by which to determine the constitutionality of
any two-step interrogation process, a test that no
one else on the Court adopted.
FURTHER READINGS
Floralynn Einesman. 1999. “Confessions and Culture: the
Interaction of Miranda and Diversity.” Journal of
Criminal Law and Criminology 90 (fall).
George C. Thomas III. 2000. “The End of the Road for
Miranda v. Arizona? On the History and Future of
Rules for Police Interrogation.” American Criminal Law
Review 37 (winter).
Klein, Susan R. 2001. “Miranda’s Exceptions in a Post-
Dickerson World.” Journal of Criminal Law and
Criminology (spring): 567–96.
Lane, Charles. 2002. “Justices Ponder the Reach of Miranda
Rights Ruling.” Washington Post.
Rybnicek, Jan Martin. 2009. “Damned If You Do, Damned

If You Don't: The Absence of a Constitutional
Protection Prohibiting the Admission of a Post-Arrest,
Pre-Miranda Silence.” George Mason University Civil
Rights Law Journal. 19 (Spring).
Strauss, Marcy. 2009. “The Sounds of Silence: Reconsidering
the Invocation of the Right to Remain Silent under
Miranda.” William and Mary Bill of Rights Journal. 17
(March).
“Will Miranda survive? Dickerson v. United States: the right
to remain silent, the Supreme Court, and Congress.”
2000. American Criminal Law Review 37 (summer).
CROSS REFERENCES
Coercion; Criminal Procedure; Criminal Law; Due Process
of Law; Exclusionary Rule; Fifth Amendment; Fruit of the
Poisonous Tree.
MISCARRIAGE OF JUSTICE
A legal proceeding resulting in a prejudicial
outcome.
A miscarriage of justice arises when the
decision of a court is inconsistent with the
substantive rights of a party.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MISCARRIAGE OF JUSTICE 91
MISCEGENATION
Mixture of races. A term formerly applied to
marriage between persons of different races.
Statutes prohibiting marriage between persons of
different races have been held to be invalid as
contrary to the
EQUAL PROTECTION CLAUSE of the

Constitution.
MISCHIEF
A specific injury or damage caused by another
person’s action or inaction. In
CIVIL LAW, a person
who suffered physical injury due to the
NEGLIGENCE
of another person could allege mischief in a
lawsuit in
TORT. For example, if a baseball is hit
through a person’s window by accident, and the
resident within is injured, mischie f can be claimed.
It is distinct from malicious mischief, which is a
criminal act usually involving reckless or inten-
tional behavior such as
VANDALISM.
MISDEMEANOR
Offenses lower than felonies and generally those
punishable by fine, penalty,
FORFEITURE, or impris-
onment other than in a penitentiary. Under federal
law, and most state laws, any offense other than a
felony is classified as a misdemeanor. Certain states
also have various classes of misdemeanors (e.g.,
Class A, B, etc.).
MISFEASANCE
A term used in TORT LAW to describe an act that is
legal but performed improperly.
Generally, a civil defendant will be liable for
misfeasance if the defendant owed a duty of care

toward the plaintiff, the defendant breached that
duty of care by improperly performing a legal act,
and the improper performance resulted in harm
to the plaintiff.
For example, assume that a janitor is
cleaning a restroom in a restaurant. If he leaves
the floor wet, he or his employer could be liable
for any injuries resulting from the wet floor.
This is because the janitor owed a duty of care
toward users of the restroom, and he breached
that duty by leaving the floor wet.
In theory, misfeasance is distinct from
NONFEASANCE. Nonfeasance is a term that describes
a failure to act that results in harm to another
party. Misfeasance, by contrast, describes some
affirmative act that, though legal, causes harm.
In practice, the distinction is confusing and
uninstructive. Courts often have difficulty deter-
mining whether harm resulted from a failure
to act or from an act that was improperly
performed.
To illustrate, consider the example of the wet
bathroom floor. One court could call a resulting
injury the product of misfeasance by focusing on
the wetness of the floor. The washing of the floor
was legal, but the act of leaving the floor wet was
improper. Another court could call a resulting
injury the product of nonfeasance by focusing on
the janitor’s failure to post a warning sign.
FURTHER READINGS

Glannon, Joseph W. 2005. The Law of Torts. Frederick, MD:
Aspen.
Johnson, Jack D., and John M. Douglas, eds. 1977. Official
Deviance: Readings in Malfeasance, Misfeasance, and
Other Forms of Corruption. New York: J.B. Lippincott.
Kionka, Edward J. 2005. Torts. Eagan, MN: West.
CROSS REFERENCE
Malfeasance.
MISPRISION
The failure to perform a public duty.
Misprision is a versatile word that can denote
a number of offenses. It can refer to the
improper performance of an official duty. In
Arkansas, for example , rule 60 of the Arkansas
Rules of Civil Procedure provides that a
judgment, decree, or order may be vacated or
modified “for misprisions of the clerk.” In this
sense misprision refers to neglect, mistake, or
subterfuge on the part of the court clerk who
performed the paperwork for the judgment,
decree, or order.
Misprision also can refer to seditious or
rebellious conduct against the government or
the courts. This is an archaic usage of the word.
Organized rebellion against the government
is now uniformly referred to as
SEDITION or
insurrection.
The most familiar and popular use of the
term misprision describes the failure to report a

crime. In England, beginning in the thirteenth
century, the failure to report a crime became
itself a crime. According to tradition, it was a
citizen’s duty to “raise the hue and cry” by
reporting crimes, especially felonies, to law
enforcement authorities (Branzburg v. Hayes,
408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626
[1972], quoting
WILLIAM BLACKSTONE).
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
92 MISCEGENATION
The crime of misprision still exists in
England, but it has never been fully embraced
in the United States. The first Congress passed a
misprision of felony statute in 1789. The statute
holds, “Whoever, having knowledge of the
actual commission of a felony conceals and
does not as soon as possible make known the
same to some judge or other person in civil or
military authority under the United States” is
guilty of misprision of felony and can be
punished with up to three years in prison.
Under the federal statute, the prosecution
must prove the following elements to obtain a
misprision of felony conviction: (1) another
person actually committed a felony; (2) the
defendant knew that the felony was committed;
(3) the defendant did not notify any law
enforcement or judicial officer; and (4) the
defendant took affirmative steps to conceal the

felony. Precisely what constitutes active con-
cealment is a
QUESTION OF FACT that depends on
the circumstances of the case. Lying to a police
officer satisfies the requirement, but beyond
that generally accepted rule, little is certain
about the definition of active concealment.
Almost every state has rejected the crime of
misprision of felony. Thus, persons are under
no duty to report a crime. One policy reason for
rejecting misprision is that the crime is vague
and difficult to apply to real situations. Another
reason is that the crime is seen as an unaccept-
able encroachment on civil freedom. In 1822
the U.S. Supreme Court cautioned against
misuse of the misprision of felony statute,
stating, “It may be the duty of a citizen
to proclaim every offense which comes to
his knowledge; but the law which would punish
him in every case, for not performing this duty,
is too harsh” (Marbury v. Brooks, 20 U.S.
[7 Wheat.] 556, 5 L. Ed. 522).
The Supreme Court has not completely
abandoned the duty to report criminal activity.
In Roberts v. United States, 445 U.S. 552, 100 S.
Ct. 1358, 63 L. Ed. 2d 622 (1980), the High
Court held that a court can increase a criminal
defendant’s sentence if the defendant refuses to
cooperate with government officials investigat-
ing a related crime. Also, a j ournalist who has

knowledge of a crime may be co mpelled to
reveal the source of that knowledge (Branzburg
v. Hayes).
The federal misprision of felony statute
remains on the books, but the crime rarely has
been prosecuted. On the state level, most states
have either abolished or refused to enact
misprision of felony laws. South Carolina is
the only state that has prosecuted the misprision
of a felony.
In State v. Carson, 262 S.E.2d 918, 274 S.C.
316 (1980), Isaac E. Carson, the
EYEWITNESS to a
murder, refu sed to give law enforcement
authorities information regarding the murder
because he feared for his life if he cooperated
with authorities. Carson was prosecuted and
convicted of misprision of felony and sentenced
to three years in prison.
The prosecution of Carson was based on the
COMMON LAW. South Carolina did not have a
misprision of felony statute. Instead the prose-
cution relied on title 14, chapter 1, section 50, of
the Code of Laws of South Carolina. Under this
statute the common law of England continues
in effect in South Carolina. On appeal by
Carson, the Supreme Court of South Carolina
affirmed the conviction. According to the court,
the prosecution was valid because misprision of
felony was a crime at common law in England

and because the South Carolina legislature had
not taken steps to repeal the common-law
crime of misprision of felony.
The crime of misprision of felony is similar
to the crime of acting as an
ACCESSORY after the
fact because both crimes involve some affirma-
tive act to conceal a crime. Two basic dif-
ferences are that the crime of misprision is
committed even if the defendant does not give
aid to the criminal and misprision is committed
only if the underlying crime is completed.
FURTHER READINGS
Gould, Keri A. 1993. “Turning Rat and Doing Time for
Uncharged, Dismissed, or Acquitted Crimes: Do
the Federal Sentencing Guidelines Promote Respect
for the Law?” New York Law School Journal of Human
Rights 10.
Guerra, Sandra. 1996. “Family Values?: The Family as an
Innocent Victim of Civil Drug Asset Forfeiture.” Cornell
Law Review 81.
Mosteller, Robert P. 1992. “Child Abuse Reporting Laws and
Attorney-Client Confidences: The Reality and the
Specter of Lawyer as Informant.” Duke Law Journal
42. Available online at />1/42_Duke_L._J._203_(1992-1993).pdf; website home
page: u(accessedAugust13,2009).
MISREPRESENTATION
An assertion or manifestation by words or conduct
that is not in accord with the facts.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION

MISREPRESENTATION 93
Misrepresentation is a TORT, or a civil wrong.
This means that a misrepresentation can create
civil liability if it results in a pecuniary loss. For
example, assume that a real estate speculator
owns swampland but advertises it as valuable
commercially zoned land. This is a misrepre-
sentation. If someone buys the land relying on
the speculator’s statement that it is commer-
cially valuable, the buyer may sue the speculator
for monetary losses resulting from the purchase.
To create liability for the maker of the
statement, a misrepresentation must be relied
on by the listener or reader. Also, the speaker
must know that the listener is relying on the
factual correctness of the statement. Finally, the
listener’s reliance on the statement must have
been reasonable and justified, and the misrep-
resentation must have resulted in a pecuniary
loss to the listener.
A misrepresentation need not be intentionally
false to create liability. A statement made with
conscious ignorance or a reckless disregard for
the truth can create liability. Nondisclosure of
material or important facts by a fiduciary or an
expert, such as a doctor, lawyer, oraccountant, can
result in liability. If the speaker is engaged in the
business of selling products, any statement, no
matter how i nnocent, may create liability if the
statement concerns the character or quality of a

product and the statement is not true. In such a
case, the statement must be one of fact. This does
not include so-called puffing, or the glowing
opinions of a seller in the course of a sales pitch
(such statements as “you’ll love this car,” or “it’sa
great deal”).
A misrepresentation in a contract can give a
party the right to rescind the contract. A
RESCISSION of a contract returns the parties to
the positions they held before the contract was
made. A party can rescind a contract for
misrepresentation only if the statement was
material, or critical, to the agreement.
A misrepresentation on the part of the
insured in an insurance poli cy can give the
insurer the right to cancel the policy or refuse a
claim. An insurer may do this only if the
misrepresentation w as material to the risk
insured against and would have influenced the
insurer in determining whether to issue a
policy. For example, if a person seeking auto
insurance states that she has no major chronic
illnesses, the insurer’s subsequent discovery that
the applicant had an incurable disease at the
time she completed the insurance form proba-
bly will not give the insurer the right to cancel
the auto policy. However, if the person was
seeking
HEALTH INSURANCE, such a misrepresen-
tation may justify cancellation of the policy or a

denial of coverage. Generally, cancellation or
denial of insurance coverage for a misrepresen-
tation can occur only if the insurance applicant
was aware of the inaccuracy of the statement.
FURTHER READINGS
Ewart, John Skirving. 2009. An Exposition of the Principles of
Estoppel by Misrepresentation—1900. Ithaca, NY: Cor-
nell Univ. Press.
Kionka, Edward J. 2005. Torts. Eagan, MN: West.
Sileo, Carmel. 2009. “Nonclient Can Sue Lawyer for Misrepre-
sentation, Colorado Court Rules.” Trial (May 1).
CROSS REFERENCES
Consumer Protection; Product Liabilit y; Sales Law; Tort
Law.
MISSOURI COMPROMISE OF 1820
The Missouri Compromise of 1820 was a
congressional agreement that regulated the
extension of
SLAVERY in the United States for
the next 30 years. Under the agreement the
territory of Missouri was admitted as a slave
state, the territory of Maine was admitted as a
free state, and the boundaries of slavery were
limited to the same latitude as the southern
boundary of Missouri: 36

30' north latitude.
The issue of slavery had been troublesome
since the drafting of the Constitution. Slave-
holding states, concerned that they would

be outvoted in Congress because their white
population was much smaller than that of
the free states, extracted concessions. Under
the Constitution, representation of the U.S.
House of Representatives was based on the total
white population and three-fifths of the black
population. The Constitution apportioned two
senators for each state.
By 1820, however, the rapid growth in
population in the North left Southern states, for
the first time, with less than 45 percent of the
seats in the House. The Senate was evenly
balanced between eleven slave and eleven free
states. Therefore, Missouri’s 1818 application
for statehood, if approved, would give slave-
holding seats a majority in the Senate and
reduce the Northern majority in the Hous e.
After a bill was introduced in the House in
1818 to approve Missouri’s application for
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
94 MISSOURI COMPROMISE OF 1820
statehood, Representative James Tallmadge of
New York introduced an amendment that
prohibited the further introduction of slavery
in Missouri and required that any slave born
there be emancipated at age 25. The bill passed
the House but was defeated in the Senate, where
Southern strength was greater.
In 1819 the free territory of Maine applied
for statehood. Speaker of the House

HENRY CLAY
of Kentucky saw this event as an opportunity to
maintain the balance of free and slave states. He
made it clear to Northern congressmen that
Maine would not be admitted without an
agreement to admit Missouri. Clay was success-
ful, getting the Northern congressmen to drop
their amendment restricting slavery while
winning Southern co ngressmen over to the idea
of limiting slavery to the 36

30' north latitude.
This provision, in effect, left unsettled portions
of the
LOUISIANA PURCHASE north and w est of
Missouri
Miss.
Ala.
Georgia
Fla.
Terr.
Ill.
Michigan
Territory
Indiana
Ohio
Kentucky
Tennessee
North Carolina
S.C.

Virginia
W.Va.
Pennsylvania
New
York
Maine
Vt.
R.I.
N.H.
Mass.
Conn.
N.J.
Del.
Md.
La.
Oregon Country
New Spain
Missouri Compromise, 1820
Free States and Territories
Slave States
Closed to slavery by the
Missouri Compromise
Opened to slavery by the
Missouri Compromise
The Missouri Compromise attempted to settle the most serious crisis of
the Monroe administration. From 1818 to 1820, Congress, the cabinet,
and the public debated the admission of Missouri as a state and whether
or not slavery would be permitted in the new state. The Missouri
Compromise set the boundary for slavery at the 36E30' north parallel.
But Missouri was admitted as a slave state, maintaining an equal number

of slave states and free states.
Unorganized
Territory
Arkansas
Territory
Missouri Compromise
(map showing
boundaries of free and
slave states).
ILLUSTRATION BY ERIC
WISNIEWSKI. GALE
GROUP.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
MISSOURI COMPROMISE OF 1820 95
Missouri free from slavery. The only area
remaining for further expansion of slavery was
the future territory of Arkansas and Oklahoma.
Clay managed to pass the compromise in the
House by a three-vote margin. Missouri and
Maine were to be admitted to the Union
simultaneously to preserve the sectional equality
in the Senate.
In 1821 Missour i complicated matters,
however, by inserting a provision into its state
constitution that forbade any free blacks or
mulattoes (people of mixed Caucasian and
African-American heritage ) to enter the state.
Northern congressmen objected to this lan-
guage and refused to give final approval for

statehood until it was removed. Clay then nego-
tiated a second compromise, removing the con-
tested language and substituting a provision
that prohibited Missouri from discriminating
against citizens from other states. It left un-
settled the question of who was a citizen. With
this change Missouri and Maine were admitted
to the Union.
The Missouri Compromise of 1820 merely
postponed the conflict over slavery. As new
territories were annexed to the Union, new
compromises with slavery became necessary.
The
COMPROMISE OF 1850 redrew the territorial
map of slavery and altered the 36

30' north
latitude prescription of the Missouri Compro-
mise. California was admitted as a free state,
and the Utah and New Mexico territories were
open to slavery. The
KANSAS-NEBRASKA ACT of
1854 repealed the Missouri Compromise. This
new law provided for the organization of two
new territories that allowed slavery, Kansas and
Nebraska, both north of the 1820 Missouri
Compromise line of 36

30' north latitude. The
land open to slavery drove deep into the no rth

and west.
The constitutionality of the Missouri Com-
promise itself was challenged in the landmark
U.S. Supreme Court case of
DRED SCOTT V.
SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 69
(1857). Scott, a slave, had lived with his master
in the free state of Illinois and also in part of the
Wisconsin territo ry, where slavery had been
federally prohibited under the Missouri Com-
promise. After his master died, Scott sued in the
Missouri courts for his freedom, on the grounds
that he had lived in a free territory. The
Supreme Court ruled against Scott, with Chief
Justice
ROGER B. TANEY holding that the FIFTH
AMENDMENT
denies Congr ess the right to deprive
persons of their property without DUE PROCESS OF
LAW
. Therefore, the Missouri Compromise
prohibiting slavery north of 36

30' was un-
constitutional. The decision wiped away the
Missouri Compromise but also raised the issue
of whether slavery could be regulated by any
government anywhere in the Union.
FURTHER READINGS
Benton, Thomas Hart. 2003. Historical and Legal Examina-

tion of that Part of the Decision of the Supreme Court of
the United States in the Dred Scott Case New York:
D. Appleton. Available online at hive.
org/details/historicalandle02bentgoog; website home
page: (accessed August 13, 2009).
Finkelman Paul. 1997. Dred Scott v. Sandford: A Brief History
with Documents. Boston: Bedford.
O’Fallon, James M. 1998. “Under Construction: The
Constitution and the Missouri Controversy.” Oregon
Law Review 77 (summer).
Whitman, Sylvia. 2002. “Henry Clay & Daniel Webster: Two
Pillars of the Union.” Cobblestone 23 (January).
MISTAKE
An unintentional act, omission, or error.
Mistakes are categorized as a
MISTAKE OF
FACT
, MISTAKE OF LAW, or mutual mistake. A
mistake of fact occurs when a person believes
that a condition or event exists when it does
not. A mistake of law is made by a person who
has knowledge of the correct facts but is wrong
about the legal consequences of an act or event.
A mutual mistake arises when two or more
parties have a shared intention that has been
induced by a common misbelief.
MISTAKE OF FACT
An error that is not caused by the neglect of a legal
duty on the part of the person committing
the error but rather consists of an unconscious

ignorance of a past or present material event or
circumstance or a belief in the present existence of
a material event that does not exist or a belief
in the past existence of a material event that did
not exist.
Mistake of fact can be a factor in reducing
or eliminating civil liability or criminal culpa-
bility. A mistake of fact is of little consequence
unless it is born of unconscious ignorance or
forgetfulness. A person cannot escape civil or
criminal liability for intentional mistakes.
In contract law a mistake of fact may be
raised as a defense by a party seeking to avoid
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
96 MISTAKE
liability under the contract. Also, a mistake of
fact can be used affirmatively to cancel, rescind,
or reform a contract. A mistake of fact can affect
a contract only if the mistaken fact was material,
or important, to the agreement.
For example, assume that a bookseller has
agreed to sell a copy of a Virginia Woolf novel
that was signed by the late author. Assume
further that the buyer is only interested in
buying the book because it contains Woolf ’s
signature. The seller knows this, and with an
authentic signature the book fetches a very high
price. If it is later discovered that the signature
was actually forged decades earlier and neither
the seller nor the buyer knew of the forgery, this

would be a mistake of fact material to the deal,
and the buyer would have the right to return the
book and get her money back. This example
illustrates a mutual mistake, or a material fact
that is mistaken by both parties. In such a case,
the party who is adversely affected by the mistake
has the righ t to cancel or rescind the contract.
In the event of a unilateral mistake, only one
party to the agreement is mistaken about a
material fact. In such a case, the party adversely
affected by the mistake will not be able to void
the contract unless the other party knew or
should have known of the mistake, or unless the
other party had a duty to disclose the mistaken
fact. For example, assume that a person owns an
expensive sports car that is in perfect condition.
Assume further that a neighbor asks the owner
if he will sell the car, and the owner responds, “I
will sell this car for thirty bills.” If the neighbor
returns with $30, no contract is formed because
the neighbor mistakenly thought that the owner
meant $30 when actually the owner was using
slang for $30,000. Further, the neighbor should
have known that an expensive sports car would
not be sold for $30.
If a party to a contract assumes the risk that
a material fact may be different than expected,
that party will not be able to recover any losses
when the fact turns out to be different. For
example, assume that a farmer sells a horse to a

buyer who wants to use the horse for polo
games. Neither the farmer nor the buyer knows
whether the horse will be suitable for polo, and
the farmer makes no guarantees. If the horse
proves unsuitable, the buyer will not be able
to rescind the deal because the farmer made no
warranties as to the horse’s suitability for polo.
To avoid such a result, parties to a contract may
agree, as part of the deal, to cancel or rescind
the contract if a certain fact related to the
contract later proves unacceptable to one of the
parties.
If a contract can be reformed, a court may
not allow a party to rescind a contract on
account of mistake of fact. The court reforms a
contract to reflect the true intent of the parties.
For example, assume that a foot wear retailer
offers to buy 100 mukluks from a mukluk
manufacturer for $10 a pair. Assume further
that the retailer mistakenly orders 100 mukluks
for $100 a pair. If the mukluk manufacturer
delivers 100 mukluks and later demands $100
for each pair, the retailer can ask a court to
reform the contract to reflect a price of $10 a
pair. This action generally occurs when the
mistake makes the agreement
UNCONSCIONABLE.
If, for example, the retailer had offered to pay
$101 a pair and the retailer later discovered that
the standard price was $100, the retailer would

likely be stuck with the contract.
A mistake involving the use of force in the
defense of property can give rise to civil liability.
Generally, if a person has a privilege to enter
onto property, a landowner or tenant has no
right to use force to keep the intruder off the
property. If, however, the intruder causes a
reasonable, mistaken belief that the property
must be defended, a landowne r or tenant may
have the right to use force to repel the intruder.
For example, if an electricity meter reader
arrives to read a meter at night wearing dark
clothing and a ski mask, a resident on the
property may not be liable for a reasonable use
of force necessary to expel the intruder. The
meter reader can be considered to have caused
the mistaken belief on the part of the resident
that the property was being invaded by someone
with no privilege to enter.
In
CRIMINAL LAW an honest and reasonable
mistake of fact can eliminate the mens rea
element of criminal responsibility. Mens rea is
Latin for “guilty mind,” and, along with an act,
a guilty mind, or a criminal intent, is required
before a person can be held criminally respon-
sible for most crimes. For example, assume that
a person who buys stolen goods honestly and
reasonably believed that the goods actually
belonged to the seller. This would negate the

criminal intent necessary to be convicted of
receiving stolen goods, and the buyer would not
be held criminally liable.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MISTAKE OF FACT 97