Are Police Free to Disregard Miranda?
Clymer, Steven D., The Yale Law Journal
Miranda v. Arizona (1) is the Supreme Court's best-known criminal justice decision. (2) It also may be its most misunderstood. Most people familiar with police television programs, movies, or books understand Miranda to require police to advise suspects of their rights to silence and counsel. (3) Many judicial and academic descriptions of Miranda comport with that view. They characterize Miranda as a law enforcement duty, one that police violate if they either conduct custodial interrogation without first giving proper warnings and securing a valid waiver, or if they fail to terminate questioning upon a suspect's request. (4)
Contrary to that understanding, Miranda and its progeny impose no such obligation on police. Rather, like the Fifth Amendment privilege that serves as its foundation, Miranda is best understood as a constitutional rule of admissibility. The privilege bars improper use of compelled statements in criminal prosecutions of those who made the statements. But, if there are assured restrictions on later use, the privilege does not prohibit the government from employing compulsion to elicit testimony or statements. For example, a prosecutor can compel testimony from a reluctant witness by immunizing her and threatening to prosecute her for contempt if she refuses to answer questions. Courts not only permit this compulsion, they also participate by issuing immunity orders and incarcerating contemptuous witnesses. Because an immunity grant assures the witness that her statement will not be used against her in a criminal case, the act of compelling her to testify does not violate the privilege. In other contexts, the Court likewise permits the government to compel statements so long as it cannot make later use of them in criminal prosecutions. (5) Unlike the Fourth Amendment proscription on unreasonable searches and seizures, which is a direct restraint on police conduct that courts enforce through a judicially created exclusionary rule, (6) the Fifth Amendment privilege is simply an exclusionary rule. (7)
The Miranda Court held that compliance with the now-familiar warnings and waiver requirements, or an effective substitute, is necessary to dispel compulsion inherent in custodial interrogation. But, if police interrogators refrain from conduct that violates due process, their decision to employ that compulsion by disregarding Miranda's requirements, rather than to allay it by complying with them, does not run afoul of the Constitution. (8) Miranda requires only suppression of any resulting statements. Even if one reads Miranda broadly, to hold that the pressures resulting from custodial interrogation always constitute sufficient compulsion to trigger the privilege, police utilization of that compulsion to elicit statements is no less constitutional than prosecutorial use of the more explicit compulsion of immunity grants and contempt threats. If police are willing to suffer the exclusionary consequences, they can disregard the Miranda rules without violating the Constitution. (9)
This understanding, which has received scant attention in the extensive Miranda literature, is significant for at least two reasons. First, as some courts and scholars have recognized, it makes clear that police officers who fail to follow the Miranda warning and waiver guidelines are not liable in civil actions under 42 U.S.C. [section] 1983 for violating suspects' constitutional rights. (10) Second, and more importantly, it reveals that a police officer's decision whether to give Miranda warnings and honor a suspect's assertion of rights is properly guided solely by an assessment of the costs and benefits of compliance and noncompliance, not fidelity to a constitutional norm. Police disregard of Miranda is not a constitutional wrong.
Even absent a constitutional duty, police likely would obey the Miranda rules if the costs of noncompliance outweighed the benefits. …