The Supreme Court's Love-Hate Relationship with Miranda

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I. INTRODUCTION

The Supreme Court's recent attitude towards its landmark ruling in Miranda v. Arizona (1) seems to be one of studied ambivalence. On the one hand, the Court has ruthlessly cut back on Miranda, construing it narrowly (2) and creating exceptions, (3) thereby "[w]eakening" its protections and "softening [its] impact." (4) On the other hand, the Court has resisted blatant attempts to subvert Miranda, whether on the part of Congress or individual police officers. In my view, the Court has adopted a pragmatic approach to Miranda. While it can be doctrinally unsatisfying and even incoherent at times, this pragmatic approach basically maintains the essential core structure of the Miranda rules and exceptions as the police have come to know them, while being wary of deliberate efforts to circumvent them. (5)

Chief Justice Warren's opinion in Miranda has always been surrounded by controversy. Even though the five-to-four decision was in many respects a compromise (6)--the Court did not ban any particular interrogation technique (7) or require the presence of counsel during police interrogations (8)--it immediately encountered resistance. Just two years after the Court issued the decision, Congress enacted the 1968 Crime Control Bill aimed at overturning it. (9) During the 1968 presidential campaign, Richard Nixon urged Congress to pass the bill, calling Miranda a "legal technicalit[y]" that had "very nearly rule[d] out the 'confession' as an effective ... tool in ... law enforcement." (10) Twenty years later, the Reagan Justice Department, under Attorney General Edwin Meese, described the Miranda ruling as "a derelict on the waters of the law," and proclaimed that "[o]verturning Miranda would ... be among the most important achievements of this administration ... in restoring the power of self-government to the people ... in the suppression of crime." (11)

But when the 1968 legislation ultimately reached the Supreme Court in 2000 in Dickerson v. United States, Chief Justice Rehnquist, a longtime critic of Miranda, surprised many Court-watchers by writing the majority opinion striking the statute down. (12) Despite language in prior Supreme Court decisions referring to Miranda warnings as "prophylactic" rules, "procedural safeguards associated with" the Fifth Amendment privilege against self-incrimination, and "not themselves rights protected by the Constitution," (13) the seven Justices in the Dickerson majority concluded that Miranda was "a constitutional decision" that "may not be in effect overruled by an Act of Congress." (14) The Court did not go so far as to wholeheartedly embrace the Warren Court's decision, cautioning that "[w]hether or not we would agree with Miranda's reasoning and its resulting rule ... in the first instance, ... Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." (15) Thus, Dickerson "froze in place the status quo," (16) even though in so doing it did not create a particularly tidy jurisprudential package. (17)

Three years later, in Missouri v. Seibert, a plurality of the Court likewise invalidated the "question-first" interrogation technique, a "practice of some popularity" that had been "promoted" in certain police departments. (18) Police using this tactic made a "'conscious decision'" to start interrogating a suspect without first reading Miranda warnings. (19) Then later, after they elicited a statement that was concededly inadmissible (because of the Miranda violation), they would belatedly provide Miranda warnings, secure a waiver, and "cover the same ground a second time" "'until [they got] the answer that [the suspect] already provided once."' (20) Calling question-first interrogation "a police strategy adapted to undermine the Miranda warnings," the plurality refused to allow the prosecution to introduce the second statement Seibert made following the administration of Miranda. …