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 http://eprints.law.duke.edu/429/ 1/42_Duke_L._J._203_(1992-1993).pdf; website home page:http://eprints.law.duke.ed 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 http://www.archive. org/details/historicalandle02bentgoog; website home page: http://www.archive.org (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 . 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 . 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. 159 L. Ed. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 90 MIRANDA V. ARIZONA 2d 6 67 (2004), the Court reviewed a case involving a defendant charged with being a felon in possession of a weapon.