Waltzing Miranda
In 1966, the wildly activist Warren Court (you may remember them from such favorites as Brown vs. Board of Education and Griswold vs. Connecticut) handed down a decision in Miranda vs. Arizona that would change criminal arrests, interrogations, and TV scriptwriting forever. Miranda held that any statement—voluntary or otherwise—made by a suspect during a custodial police interrogation is inadmissible unless preceded by a warning and a waiver of the suspect’s Fifth Amendment rights. You know: “You have the right to remain silent, you have the right to an attorney …” (here’s where it starts to sound like Charlie Brown’s teacher, all “wah-WAH-wah-WAHHH”).
In 1968, Congress, furious at the Warren Court’s “rights revolution,” enacted 18 USCA Section 3501. It required courts to evaluate on a case-by-case, factor-by-factor basis, whether confessions were voluntary. Section 3501 practically obliterated Miranda. We’ve discussed the whole rules-vs.-standards paradigm? Well, Congress replaced Miranda’s bright-line rule (no Miranda = no admissible confession) with a “voluntariness” standard in which, to quote the solicitor general this morning, “everything is relevant and nothing determinative.” The voluntariness rule was the law of the land from the late 19th century until Miranda was adopted.
Metaphor: Miranda erected a sort of steel firewall around a suspect’s Fifth Amendment right against self-incrimination. Section 3501 replaced the firewall with some white picket fencing and a rubber lawn gnome. You might expect that over 32 years, seven administrations, and a whole mess of bad-ass attorneys general, someone would have tried to use 3501 to slip some un-Mirandized confession into evidence. But it never happened. Never. When Charles T. Dickerson confessed his involvement in a Virginia bank robbery prior to being properly Mirandized, a test case was born, U.S. vs. Charles T. Dickerson.
Dickerson has yet to be tried in court. The issue that has been kicked up the judicial food chain from district court to Supreme Court is whether Dickerson’s confession, which was deemed inadmissible under Miranda, can still be admitted into evidence under Section 3501.
Still, the Justice Department didn’t want to use Section 3501 to end-run the district court’s suppression of Dickerson’s confession. They like Miranda. There are two parties to this lawsuit: Dickerson and the United States. Because neither party wants to advocate for Section 3501, the Supreme Court appointed Professor Paul Cassell, from the University of Utah Law School, to argue the case. Cassell has made a career out of trying to get someone, someplace to enforce this law. Being tapped by the Supremes to defend a statute that neither party to the case wants any part of is like being appointed hall monitor—ratting out your buddies for extra credit. Cassell argues today as though his career depended on it. Oh, wait. It does.
There are few surprises from the bench this morning. Everyone knew Justices Rehnquist, Scalia, and Thomas would pitch their tents in the 3501 camp—where Congress has rights and criminals don’t. Nor is it surprising when Stevens, Souter, Breyer, and Ginsburg wrap themselves in the Bill of Rights to defend Miranda. These Certain Seven offer more discursive essays than questions. All eyes are on O’Connor and Kennedy, the “centrists” who will decide the future of Miranda. Here’s how it goes:
James W. Hundley, representing Dickerson, says Miranda warnings are Constitution-based (and thus immune from being spiked by Congress), when he’s spiked by Scalia, demanding whether one has a “substantive” right if, say, a cop beats a confession out of you “with a rubber hose.” Scalia believes Miranda is a procedural right, not a substantive right. Think of substantive rights as your Big Kahuna rights and procedural rights as lesser ones. If that helps. This will be on the final.
Hundley has that fresh, scrubby Eagle Scout look. (Not that kind of Eagle Scout. That’s next week.) Ginsburg argues, for the first of many times today, that Miranda creates an affirmative duty to give suspects notice of their rights and the opportunity to exercise them. Rehnquist questions Hundley’s premise that Miranda offers a clear, easy-to-administer rule by noting that there have been 50 post-Miranda cases, all trying to sort out what the hell it meant. O’Connor asks how Miranda could not have constitutional force if the Supreme Court has applied it to the states. Because she might be wafting toward the Miranda camp, Scalia answers her rather than letting Hundley do so. He then accuses Hundley of “swallowing the cow and screening out the gnat.” At least I think that’s what he said. I am behind the pillar again, trying to read hand signals from the marshal. Have I mentioned about the hand signals? One finger means Rehnquist. Four means Scalia. Three means bunt and run like a bunny.
Hundley splits his time with Solicitor General Seth Waxman, who has three main arguments and four subarguments. Three fingers means O’Connor, who interrupts Waxman’s first point to ask whether Miranda warnings are constitutional. Waxman replies that they are “safeguards,” not constitutional but “prophylactic rules” protecting constitutional rights. Scalia disagrees. He says Congress has the power to fashion procedural rules and the power to “tell the court it’s ‘gone too far.’ “
When O’Connor asks Waxman why Section 3501 is insufficient to protect constitutional rights, he says this was actually his second point. Stevens interrupts to suggest he “tell us the third one, then make the second.” His second point has four points, two of which seem to be that the “totality of the circumstances” test sucks. I am not certain we ever get to his third point, and I am disappointed. His lovely bride tells me this morning in the Supreme Court cafeteria that he is fasting for Passover. You’d never know it. He does a nice job. A macaroon for the SG.
Paul Cassell is met almost immediately by O’Connor’s “Does this whole case boil down to whether Section 3501 provides an adequate alternative procedure to Miranda?” Cassell replies that, like the SG, he has three arguments. Ginsburg—doing more blocking than running today—asks Cassell whether he deems a police station to be a “Fifth Amendment venue” and whether police officers tend to have “caring, fatherly relationships” with criminal suspects. Not in Los Angeles, New York, or during the IMF riots, baby.
Souter asks whether Section 3501 safeguards are “equivalent” to those in Miranda. Is the picket fence and the gnome the same as the firewall? Cassell says 3501 includes many of the same safeguards. Breyer asks if they are equivalent safeguards, and Souter asks if the safeguards are required. These two have been practicing. Cassell urges that Section 3501 provides “clear incentives” for cops to still deliver Miranda warnings (after the suspect has straightened and pulled up his pants).
Stevens asks whether Cassell is arguing that Section 3501 is a “substitute adequate procedure” to Miranda or that it overrules it. Weirdly, Cassell denies that it overrules Miranda. Weirder, he takes the position that unlike in the pre-Miranda days, interrogation is no longer “automatically coercive.” Unsatisfied with his other extreme positions, he insists that police interrogation procedures need satisfy only the Fifth Amendment and not “every jot and jiggle” of Miranda. He’s arguing that even Miranda did not require the safeguards underlying Miranda warnings. Even Scalia takes issue with this. For the first time, Cassell looks like a zealot.
People who hate Miranda hate it because it privileges the rights of the criminal over the rights of the victim and society. It throws away confessions on either “technicalities” or fundamental rights. Among the literally dozens of amicus briefs filed in the case, many are from police and victims’ rights groups who doubtless believe Miranda might just as well say, “You have the right to remain violent.” Yet for a case that should have raised a vast public outcry, what’s most astonishing about Dickerson is that the case the legal academy called the biggest of the year happened in silence. The press gallery was half empty. Not one of the dozens of groups who filed amicus briefs protested outside. Not a placard. Let’s compare that with next week’s abortion case.
Does it mean the public loves Miranda? Doubt it. But it may mean that Congress’ efforts to overrule it, plus 30 years of ignoring those efforts, plus one man’s crusade to enforce it, don’t add up to the Miranda revolution we were expecting.
