Behind the Dickerson decision.

In Dickerson v. United States(1), as I(2) and other legal commentators predicted, the U.S. Supreme Court upheld Miranda v. Arizona.(3) Less expected was the impressive 7-2 vote.

In particular, many Court watchers may have been surprised to see Chief Justice William Rehnquist, a long-time opponent of Miranda, voting with the majority. I was not, for several reasons.

First, Rehnquist is showing the kind of leadership that he has long admired in previous chief justices. He once wrote about Chief Justice Charles Evans Hughes that "Hughes believed that unanimity of decision contributed to public confidence in the Court.... Except in cases involving matters of high principle he willingly acquiesced in silence rather than expose his views.... Hughes was also willing to modify his own opinions to hold or increase his majority."(4)

In Dickerson, however, Rehnquist did more than acquiesce in silence. He wrote the majority opinion. This was likely because of the second reason Rehnquist's vote did not surprise me: his concern with maintaining the balance of power between the Court and Congress.

Dickerson arose because Congress passed a statute shortly after the Court decided Miranda to "overrule" that decision.(5) The statute provided that "voluntariness," not the Miranda warnings, should be the keystone to the admissibility of confessions in federal prosecutions--the very approach that Miranda had rejected.

At the time, everyone recognized that the statute was invalid, and the U.S. Justice Department consistently refused to enforce it. However, in the ensuing years, there have been several pronouncements by the Supreme Court, including by Rehnquist himself, suggesting that Miranda was not constitutionally based, but was merely a "prophylactic" rule to "provide practical reinforcement" for the privilege against self-incrimination.(6)

If the warnings were not constitutionally required, then it would follow that Congress could "overrule" them. As I noted in my previous article, it seemed unlikely that the current Court would allow this because in Withrow v. Williams, a 1993 decision, the majority, in making Miranda violations subject to federal habeas corpus, declared that "prophylactic though it may be in protecting a defendant's privilege against self-incrimination, Miranda safeguards a fundamental trial right."(7)

Rehnquist joined Justice Sandra Day O'Connor's partial dissent in Withrow, which affirmed their position that "exclusion of statements obtained in violation of Miranda is not constitutionally required."(8) Justices Antonin Scalia and Clarence Thomas dissented separately.

But for the Supreme Court to overrule Miranda itself is one thing, to stand by while Congress does this is quite another. In Dickerson, the majority, which included O'Connor, sent a strong message to Congress: Stay off our turf!

While agreeing that Congress may override supervisory rules that the Court has declared for the lower federal courts, the Court in Dickerson also declared that "Congress may not legislatively supercede our decisions interpreting and applying the Constitution."(9) The majority conceded that "there is language in some of our opinions that supports the view taken by the court [below that Miranda is not constitutionally based]."(10) But, the justices pointed out, because Miranda and its companion cases overruled state convictions, it necessarily followed that Miranda was a constitutional, not a supervisory decision,(11) a point that Justice John Paul Stevens has been making for years.(12)

The majority went on to put to rest the claim that because Miranda allowed states and Congress to "develop their own safeguards for the privilege, so long as they are fully as effective as [the four warnings] in informing accused persons of their right to silence and in affording a continuous opportunity to exercise it,"(13) Congress's action was somehow justified. Because Congress had not attempted to develop any alternative safeguards--it simply eliminated the Miranda requirements--it obviously had not accepted the Court's invitation, the majority found.

In fact, any alternative safeguards would likely be more limiting to police than Miranda. The most obvious one is banning uncounseled interrogation altogether. Alternatively, the states could be required to maintain duty counsel at every police station and require police to inform suspects that counsel is available, as Canada does.(14) Under Miranda, if a suspect asks for counsel, the police are merely required to stop questioning. They do not have to provide counsel.

Likewise, the Court brushed aside the argument that its creation of exceptions to Miranda, like the "public safety exception,"(15) undercut the constitutional force of Miranda itself. "No constitutional rule is immutable," Rehnquist wrote.(16)

The justices found that while they might not all "agree with Miranda's reasoning, were [they] addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."(17) It wasn't just that Miranda had been around for a long time. It was also that the Court's Republican majority, in place since 1972, had so watered down the case's requirements as to reduce "the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling...."(18) In short, Miranda's weakness had become its strength.

While Miranda itself is now secure, the majority, in holding that creating exceptions and limitations to that decision does not destroy its constitutional underpinnings, allowed itself room to create more exceptions and limitations in the future. The majority stops short of declaring that the Court has a general power to expand the Constitution into areas that it clearly does not cover simply for prophylactic purposes--a hesitation that Scalia "applauds"(19) in his dissent--even though Miranda did just that. Avoiding such a sweeping declaration of the Court's prerogatives was likely another reason why the chief justice chose to write this opinion himself.

The dissent

Scalia's dissent, which was joined only by Thomas, began by considering the wording of the Fifth Amendment, which only forbids compelling a person "in any criminal case to be a witness against himself." Scalia found that forbidding the use of compelled confessions is "precisely" what Congress did in passing the statute.(20)

He is right that the statute sticks closer to the literal constitutional mandate than does Miranda. However, the constitutional prohibition against being a "Witness" likely was not intended to apply to interrogations or the use of their fruits at trial. It simply gave the defendant the right not to testify.

Once it is recognized that neither side's view is commanded by the constitutional language, it becomes easier to justify the majority's impression that effective enforcement of the Constitution requires that the defendant be informed of the Miranda rights before confessing. Otherwise, the defendant's right not to testify at trial is rendered nugatory by his or her prior, uninformed confession.

Scalia chided the majority for not forthrightly declaring that "custodial interrogation that is not preceded by Miranda warnings . violates the Constitution."(21) But this is not the Court's holding. Rather, it is the use of unwarned statements at trial violates the Constitution. Certainly, the Court's reiteration of Miranda's statement that "the requirement of warnings and waivers is ... fundamental with respect to the Fifth Amendment privilege" as well as of Withrow's declaration that "Miranda safeguards a fundamental trial right"(22) is adequate to convey this idea.

Quoting Justice Byron White's dissent in Miranda, Scalia noted that the fundamental assumption of that decision--that "the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will"(23)-- is "preposterous."(24) Moreover, Scalia added, "even if one assumes that the elimination of compulsion absolutely requires informing even the most knowledgeable suspect of his right to remain silent, it cannot conceivably require the right to have counsel present."(25)

Once again, Scalia has subtly misstated the Miranda holding. It does not require that counsel be provided--only that if the suspect asks for counsel, the result of any subsequent interrogation may not be used in the government's case at trial.

Still, Scalia is right that Miranda, in requiring that unwarned statements may not be used in court, exceeded any reasonable reading of the Fifth Amendment. Obviously, some of these statements--for example, by an unwarned suspect who already knows his rights, and who is simply asked, "Did you do it?"--are in no sense of the word "compelled."

When Miranda was decided, the Court had been struggling with the problem of coerced confessions for years and was dissatisfied with the results obtained under the "voluntariness" standard.(26) This test was closer to the Fifth Amendment requirement that the defendant could not be "compelled ... to be a witness against himself," but it was too subjective and gave police little indication of how to behave.

The Court set out to adopt a clear rule that police, and suspects, could understand and apply. If, in the process, the Fifth Amendment had to be stretched, then so be it. It is these pragmatic considerations that underlay Miranda in the first place and that continue to support it today.

Once this pragmatic basis is recognized, the fact that "subsequent cases have reduced the impact of Miranda on legitimate law enforcement,"(27) and the further fact that it never did seem to have that much of an impact on the ability of police to get confessions, become sound reasons for maintaining the Miranda rule rather than questioning its constitutional validity.

Scalia's position is that, since the Court has weakened Miranda, thus making it more palatable to conservatives like Scalia (and Rehnquist), it has thereby destroyed its constitutional basis, forcing it to be overruled. The majority unsurprisingly rejects this argument.

Sound law?

But to agree that Miranda is a step in the right direction is not to say that current interrogation law is sound. First, the warnings do little to help the suspect who is too frightened, too suggestible, or too ignorant to appreciate their meaning, especially because, once the warnings are given, police can still engage in the very kinds of psychological ploys that Miranda condemned. This shows that Miranda was a compromise and generally does not, contrary to Scalia's claim, prevent "foolish (rather than compelled) confessions."(28)

Further, Miranda only covers the beginning of the interrogation, but to read Supreme Court cases of the last 30 years, you would think the only important issues involve that decision's scope. How exact need the warnings be? (Not very exact.)(29) What to do if the suspect asks for a lawyer? (Interrogation must cease.)(30) What to do if the suspect says he or she doesn't want to talk? (Unclear--depends on the circumstances.)(31) What if the suspect asks to see someone other than a lawyer? (Not an invocation of the Miranda rights.)(32)

Although the Court in Dickerson noted that reaffirming Miranda "does not . dispense with the voluntariness inquiry," it further observed that "such cases are rare."(33) This is an understatement. Since Miranda was decided in 1966, the Court has never struck down a warned confession as involuntary due to improper police interrogation tactics,(34) though this was a regular occurrence in previous years. Could it possibly be that the dose of medicine administered to police by the Court in Miranda cured them of all of the bad habits of trickery and coercion that went on before that case?

Miranda, by forcing the police to read the warnings, does have the salutary effect of reminding the police that the courts are watching. But it has surely not wiped out confessions that due to factors like physical coercion, psychological ploys, mental incapacity, and fatigue are not sufficiently "voluntary" to be considered either fair or reliable.

Other countries have rules about interrogation that include time limits, breaks for food and water, and supervision by a senior officer who is not involved in the case. The United States has used Miranda as a rug under which concerns about the fairness and reliability of confessions can be swept.

But lately we have been receiving disturbing reports that alleged criminals, whose convictions have been based largely on their confessions, have subsequently been shown by DNA testing to be innocent.(35) This suggests that Miranda alone is not enough.

In addition to the safeguards discussed above, the most obvious way to ensure fairness is to require interrogations to be videotaped. This low-cost and easy-to-implement option would help ensure that interrogations are not coercive, while also serving to reassure dubious jurors that the defendant really did say what the police claim he or she said. As a constitutional matter, it is at least as protective of the Fifth Amendment right against compelled confessions as Miranda is.

Let us hope that, having put the validity of Miranda to rest, the Court will turn its attention to the rest of the interrogation process. In my next column, I will discuss the incredible maze of confusion surrounding what the police should do when a suspect asserts the rights to silence and/or counsel or when the suspect is entitled to pretrial counsel under the Sixth Amendment.

Notes

(1.) 120 S. Ct. 2326 (2000).

(2.) Craig M. Bradley, The Miranda Flap, TRIAL, Feb. 2000, at 87.

(3.) 384 U.S. 436 (1966).

(4.) William Rehnquist, Chief Justices I Never Knew, 3 HASTINGS CONST. L.Q. 637 (1976).

(5.) 18 U.S.C. [sections] 3501 (2000).

(6.) Michigan v. Tucker, 417 U.S. 433, 444 (1974).

(7.) 507 U.S. 680, 691 (1993).

(8.) Id. at 702.

(9.) Dickerson, 120 S. Ct. 2326, 2332.

(10.) Id. at 2333.

(11.) Id.

(12.) See, e.g., Oregon v. Elstad, 470 U.S. 298, 370-71 (Stevens, J., dissenting).

(13.) Miranda, 384 U.S. 436, 490.

(14.) CRIMINAL PROCEDURE: A WORLD-WIDE STUDY 68 (Craig Bradley ed., 1999).

(15.) New York v. Quarles, 467 U.S. 649, 653 (1984).

(16.) Dickerson, 120 S. Ct. 2326, 2335.

(17.) Id. at 2336.

(18.) Id.

(19.) Id. at 2345-46.

(20.) Id. at 2337.

(21.) Id.

(22.) Id. at 2334 nn. 4 & 5.

(23.) Miranda, 384 U.S. 436, 535 (White, J., dissenting).

(24.) Dickerson, 120 S. Ct. 2326, 2339.

(25.) Id.

(26.) For a discussion of the cases leading up to Miranda, see CRAIG BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 6-16, 24-28 (1993).

(27.) Dickerson, 120 S. Ct. 2326, 2339.

(28.) Id.

(29.) See Duckworth v. Eagan, 492 U.S. 195 (1989) and cases cited therein.

(30.) Edwards v. Arizona, 451 U.S. 477 (1981).

(31.) Michigan v. Moseley, 423 U.S. 96 (1975).

(32.) Fare v. Michael C., 422 U.S. 707 (1979).

(33.) Dickerson, 120 S. Ct. 2326, 2336.

(34.) In Arizona v. Fulminante, 499 U.S. 279 (1991), the Court did conclude that a statement given to an informant in prison, where the informant offered to protect the defendant from the other inmates if the defendant "told him the truth" about the murder, was coerced.

(35.) See generally BARRY SCHECK ET AL., ACTUAL INNOCENCE (2000).

Craig M. Bradley, a former assistant U.S. attorney, is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington.