Fighting Crime vs. Civil Liberties / Trend to Limit Rights of Defendants Could Accelerate

Article excerpt

WASHINGTON - In the tradeoff between fighting crime and protecting civil liberties, the Supreme Court in recent years has settled into a fairly steady pattern, limiting but not overruling major decisions favorable to criminal defendants that the court made under Chief Justice Earl Warren.

This trend worries civil libertarians and defense lawyers but, at the same time, leaves largely intact some of the Reagan administration's least favorite restraints on official power.

For example, the court has created exceptions to its once-total ban on the use of unconstitutionally seized evidence, but it seems unreceptive to Attorney General Edwin Meese 3d's suggestions that this ""exclusionary rule'' be abolished entirely.

And while refusing last week to impose new limits on police interrogation of suspects or any limits at all on deception of their lawyers, the court reaffirmed its established rules that the police must inform arrested suspects of their rights to remain silent and to have a lawyer. Those rules were laid down in 1966 in Miranda vs. Arizona, a decision that Meese has called ""infamous.''

No drastic shift in the balance between official power and individual rights seems likely under the court's current nine members. But the method of analysis that the majority has increasingly employed to limit defendants' rights has begun a process that could accelerate if President Reagan has a chance to name new justices who share Meese's views.

Under the court's approach, the scope of constitutional rights is often determined by ""balancing'' the presumed benefits of a proposed rule - deterrence of police abuses, for example - against thepresumed costs, which usually come down to letting some number of criminals go free.

This approach has deep roots in modern legal thought. Constitutional rights are no longer seen by many judges and scholars as absolute barriers to official power grounded in natural law but as ""values'' or ""interests'' that must yield when weightier governmental interests are marshaled against them.

But while constitutional cost-benefit analysis is not a recent invention, it seems increasingly to dominate the court's approach. The latest example was the decision last week that the police in Rhode Island could legally deceive a defense lawyer to keep her away while they interrogated a murder suspect and could conceal from the suspect the fact that the lawyer had called.

Over an unusually heated dissent by three justices, the majority upheld the suspect's confession and conviction. Rejecting what the American Bar Association, among others, considered a logical extension of the Miranda ruling's limits on police interrogation, it said arrested suspects have no right to be told when a lawyer is trying to reach them.

When he wrote the Miranda decision, Warren said the rules he was laying down were required by the Fifth Amendment privilege against compelled self-incrimination, to dispel the ""compulsion inherentin'' police interrogations behind closed doors. …