Young, Cathy, Reason
The Supreme Court may repeal your right to remain silent. What should come next?
The "Miranda rule," which makes a confession inadmissible in a criminal trial if the accused was not properly advised of his rights, has been so thoroughly integrated into the justice system that any child who watches television can recite the words: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney..." Yet the 1966 Supreme Court ruling in Miranda v. Arizona remains the subject of often heated debate. To many conservatives, it embodies liberalism's worst sins, from unbridled judicial activism to an unholy sympathy for "criminals' rights." To most liberals, it represents not only respect for civil liberties but protection for the most socially vulnerable individuals against the coercive powers of law enforcement.
The reality is far more complicated and interesting. While law-and-order conservatives routinely underestimate or wave off the dangers of police coercion, civil libertarians similarly understate Miranda's negative effects on crime control. The irony, however, is that Miranda does relatively little to prevent some of the most insidious police abuses--or to protect the innocent.
The Miranda debate is newly relevant: Last December, the Supreme Court agreed to take a case--U.S. v. Dickerson--which could lead to a reversal of the landmark decision later this year. Dickerson stems from a relatively obscure footnote in U.S. legal history (see "Silent Right," June 1999). In 1968, Congress enacted a statute (Section 3501 of the U.S. criminal code) essentially nullifying Miranda in federal prosecutions and making all voluntary confessions admissible. The law was rarely used by federal prosecutors, and in 1997, the Justice Department formally stated that it would not be enforced. Two years later, the conservative U.S. Court of Appeals for the 4th Circuit in Virginia forced the issue when the government appealed a federal judge's decision to suppress the statements of an accused bank robber who had confessed before being read his rights. Section 3501 was not invoked in the appeal, but the appellate panel cited it in reinstating the confession and chided the Justice Department for refusing to apply the law. The court's action was prodded by a brief from the right-of-center Washington Legal Foundation, written by Utah College of Law professor Paul Cassell, a persistent and vocal critic of Miranda.
While the outcome of Dickerson will technically affect only cases tried in the federal courts and in the District of Columbia, it is likely have a major impact on the state level as well. The Supreme Court has repeatedly noted that Miranda warnings are not a constitutional right but a "prophylactic" safeguard of the Fifth Amendment privilege against forced self-incrimination. If the court finds that the congressional action overriding Miranda is constitutional, the states will be free to pass laws that similarly supplant Miranda. While at least two Supreme Court justices--Clarence Thomas and Antonin Scalia--are known to favor reversing Miranda, it is hard to predict which way the court will go. But some experts such as Tim Lynch, director of the Cato Institute Project on Criminal Justice in Washington, D.C., believe that U.S. 3501 is likely to be upheld as perfectly legal.
So what would law enforcement be like in a world without Miranda? Imagining that outcome underscores the deeper issues at play. Lynch thinks that the constitutional reasoning behind Miranda is shaky. "The Fifth Amendment says the state can't coerce a confession," he explains. "The flaw in Miranda is that it says that any un-warned statement by the suspect to the police is coerced." Lynch believes that the pre-Miranda standard on confessions--voluntary vs. involuntary--was correct, though often misapplied by pro-police judges. "Suppose an individual under arrest is sitting in a police station and two detectives come in and ask, 'Why did you kill your wife? …