Resurrecting Miranda's Right to Counsel

By Rossman, David | Boston University Law Review, May 1, 2017 | Go to article overview

Resurrecting Miranda's Right to Counsel


Rossman, David, Boston University Law Review


Introduction

The pedantic policeman's Miranda warning:

OK. Listen up. I am going to read you your rights. You have the right to remain silent.1 Anything you say can be used against you.2 You have the right to an attorney.3 If you can't afford one, an attorney will be appointed for you.4

Now that I've told you what the Supreme Court says I have to say, let me tell you what it really means.

That right to silence I told you about, it's not exactly what it seems. It's true that I can't force you to talk. And it's certainly true that anything you say can be used against you. But not much else about it is really what it seems.

For starters, I can keep asking you questions until you do make a statement.5 Unless you make it absolutely clear that you want to remain silent, by words and not by actions, nothing prevents me from keeping it up and getting you to say something that we can use in court.6 And you know what, even if you're absolutely clear about wanting to assert this socalled right to silence, I don't have to listen to you.7 I can keep on trying to get you to make a damaging statement, and according to the Supreme Court, I will have done nothing wrong.8 So long as the prosecutor doesn't use the statement itself, I will still be on the right side of the Constitution. Why would I do that? Because, even though you tried to assert your "right to silence," if I ignore you and get you to tell me something that provides a lead to evidence I can use against you or the name of a person who can testify against you, I can build up my case and use what I found in court.9 Plus-and this is the icing on the cake-even if I ignore your clear and unequivocal statement that you want to remain silent and keep asking questions that finally gets you to say something useful to me, the jury will learn about your statement if you take the stand and testify in your own defense.10

And if you feel a little let down because the right to silence isn't quite what it seems, boy, wait until I spell out what the right to an attorney means. The first thing I want you to know is that, just like with the right to silence, this so-called right to an attorney won't even come into play unless you are unequivocally clear about what you want.11 And even if you have the presence of mind to come out with that kind of clear statement, I can ignore what you say, just like with the right to silence.12 Yeah, if I do ignore you and keep on questioning you, we can use whatever you say if you take the stand later,13 and we can use any leads you give us to find other evidence that can be introduced at trial.14

But that's not the best part about this so-called right to an attorney. Even if you make one of those clear requests for a lawyer that most suspects find so hard to make, you will never, ever get an attorney to talk to you as part of a police interrogation. The best that will happen is that we'll stop questioning you, at least until you bring up the topic of our interrogation again, at which point we can recommence questioning.15 But you won't get a lawyer then either. There's no way any police officer will allow a lawyer in the interrogation room. Buddy, you are on your own.

Everything in this pedantic policeman's Miranda warning is an accurate statement of the law. The Miranda doctrine was the product of the Warren Court's lofty and, in hindsight, wildly naive view that its four-part warning would make the interrogation process more fair. Since then, Miranda has been largely gutted at the hands of Justices who did not share their predecessors' vision of the correct balance between suspects' rights and police interrogation.

Miranda represented the high-water mark of the criminal procedure revolution of the 1960s.16 The audacity of its solution to the problem of coerced police confessions embroiled the Supreme Court in controversy that extended for decades. At this point in its history, however, Miranda is bankrupt both intellectually and in terms of practical effect. …

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