Every criminal defense lawyer has enjoyed the experience of gently and empathetically explaining to a client that no, the case won’t be dismissed because the cop failed to give him the Miranda warnings. Rather, the only remedy for a custodial interrogation absent the warnings is exclusion of the defendant’s statements at trial. No statements, no remedy.

But humans being what they are, the issue arose in another circumstance raising the curious question, what are the Miranda warnings?

The question arose in a civil rights case brought by Terence B. Tekoh, a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI. Mr. Tekoh was questioned at length by Carlos Vega, a deputy sheriff in Los Angeles.

The two men offered starkly divergent accounts of the nature of the questioning, but there was no dispute that Mr. Vega did not give the Miranda warning, that Mr. Tekoh signed a confession admitting to the assault, that a state trial judge admitted his confession into evidence or that a jury acquitted him.

After his acquittal, Tekoh sued the officer under § 1983 for violating his civil rights by failing to give the Miranda warnings, directly calling into question what the hell the Miranda warning is, a right or . . . something else.

The debate was largely put to rest in Dickerson v. United States, a 7-to-2 decision in 2000. Chief Justice William H. Rehnquist, himself a longtime critic of Miranda, wrote for the majority that the warnings had “become embedded in routine police practice” and had “become part of the national culture.”

Since the Miranda decision had “announced a constitutional rule,” he wrote, a statute that sought to overrule it was itself unconstitutional.

Is a constitutional rule that’s become part of the national culture a constitutional right or just one of those weird things that have been around long enough, become sufficiently accepted as part of the legal landscape, that it’s just there, whatever it is?

But Roman Martinez, a lawyer for Mr. Vega, said a constitutional rule is different from a constitutional right. “Dickerson gives Miranda constitutional status, but it doesn’t say that Miranda creates a Fifth Amendment right.”

Justice Kagan raised the concern that the officer’s position called into question Dickerson, and therefore Miranda itself. Justice Barrett noted that C.J. Rehnquist was deliberate in the opinion to call Miranda a “constitutional rule” rather than right. And C.J. Roberts tried to thread the needle.

Chief Justice John G. Roberts Jr. said his predecessor, whom he had served as a law clerk, had chosen his words carefully. “He didn’t say Miranda is in the Constitution,” Chief Justice Roberts said. “He talked about constitutional underpinnings, constitutional basis.”

But does that make it actionable in a § 1983 suit or not? Granted, the circumstances of Tekoh’s case are unusual, although unusual fact patterns invariably manage to occur with regularity. But his acquittal by a jury after his confession was admitted against him isn’t the sort of thing that happens in most trials, so his being positioned for a § 1983 suit makes the question critical. Can he sue for it or not?

Arguably, Miranda raises a constitutional right by implication stemming from the Fifth Amendment right against self-incrimination, even if the Court wasn’t clear about it. At the time Miranda was decided, the Court tended to be a bit fuzzy about the basis for some of its  more creative rulings. A thing might be a really good idea, protective of rights that were otherwise exposed to being exploited, such that the Court crafted rules like Miranda with some level of constitutional legitimacy.

But it’s also arguable that Miranda is more of an evidentiary rule, a precursor to admissibility of custodial statements by the defendant, and not a standalone right. After all, if it is a constitutional right, then not only does it give rise to an action under § 1983, but it may well have implications for denial of rights in a criminal prosecution as well. Rights are rights, after all.

For most of us, this isn’t the sort of issue that comes up in criminal defense, and so we don’t give it much thought. The Miranda warnings exist, as they have since 1966, and we know what they do. Or do we?