The Miranda flap.

   Liberals from the realms of theory
   Should adorn our highest bench.
   Though to crooks they're always cheery,
   At police misdeeds they blench.
   Save Miranda! Save Miranda!
   Save it from the Nixon four!(1)

These lyrics, sung to the tune of "Angels from the Realms of Glory," were performed at the Supreme Court December holiday show in 1975. At that time, it appeared that the Court, with four new members appointed by President Richard Nixon and with Justice William Douglas having just resigned, might soon overrule the controversial precedent.

Indeed, what many considered to be the first shot across Miranda's bow had already been fired. In 1974, the Court, in an opinion authored by Justice William Rehnquist, had declared that Miranda warnings are not themselves rights protected by the Constitution but only "prophylactic standards" designed to "safeguard" or to "provide practical reinforcement" for the privilege against self-incrimination.(2)

Yet Miranda has remained good law. Or has it? On December 6, 1999, the Supreme Court granted certiorari in United States v. Dickerson.(3) In that case, the Fourth Circuit had held that Miranda had been "overruled" by Congress when it passed the Omnibus Crime Control and Safe Streets Act of 1968, which provided that, in federal courts, "a confession ... shall be admissible in evidence if it is voluntarily given."(4)

As the Fourth Circuit noted, "Congress enacted [sections] 3501 with the express purpose of legislatively overruling Miranda and restoring voluntariness as the test for admitting confessions in federal court."(5) The court's conclusion that Congress had authority to do this was based on the Tacker holding quoted above.

It has been so long since Miranda was decided that it is encrusted with the barnacles of over 30 years of interpretation, mostly by a Republican-dominated Court that didn't like the decision much to begin with. Consequently, the law of confessions has become, in the Supreme Court's own estimation, "murky and difficult."(6)

This article will describe the current state of confession law, as well as briefly discuss the issue of whether Congress could, or the Supreme Court should, overrule Miranda. A subsequent article will discuss the Court's decision, which is likely to come out in the spring.

Miranda provides that, before "custodial interrogation," a suspect must be warned of the right to remain silent, that anything he or she says may be used against him or her, that he or she has a right to counsel, and that if the suspect can't afford a lawyer, one will be provided.(7) But how precisely must the police present the required warnings?

In California v. Prysock, a suspect was told that he had a right to a lawyer prior to questioning and that he had a right to have a lawyer appointed to represent him at no cost. The lower court held that this did not make it clear that the free lawyer could be obtained prior to interrogation. Eschewing a "rigid" application of Miranda, the Court found this warning adequate.(8)

Likewise, in Duckworth v. Eagan, police informed the suspect that he had "a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning."(9) They then seemed to contradict this by adding, "We have no way of giving you a lawyer, but one will be appointed for you, ... if and when you go to court."(10)

A 5-4 majority approved the use of the defendant's subsequent confession because this accurately reflected the fact that Miranda doesn't actually require that a suspect be provided counsel when he asks for it, but only that questioning must then cease (though the police didn't tell the suspect this). Finally, and importantly, the suspect does not have to specifically waive his rights--simply answering questions after the warnings generally constitutes a waiver.(11)

The definitions of "custody" and "interrogation" have provided further opportunities for the Republican majority to limit Miranda. While "custody" could have been construed to include many confrontations between police and citizenry, such as a Terry v. Ohio(12) compulsory "stop" of someone suspected of a crime, the Court has limited it to arrests, albeit without ever saying so directly.

Thus, roadside questioning of a motorist pursuant to a traffic stop;(13) questioning of a traveler in an airport;(14) or questioning in the police station of a suspect who came voluntarily, knowing that he was not under arrest, did not require warnings.(15) But interrogation of an arrestee in his home did.(16)

"Interrogation" has not been limited to direct questioning by police. According to Rhode Island v. Innis, it also includes "words or actions on the part of police that the police should know are reasonably likely to elicit an incriminating response."(17)

But the Court, surprisingly, did not apply this apparently broad reading of the concept of "interrogation" to the facts of Innis itself. In that case, the police, talking among themselves, expressed concern that the gun they were looking for might be found at a nearby school by handicapped children who would hurt themselves. The defendant then told them where the gun was located. Somehow, the Court concluded that this was not interrogation.

Innis further held that words or actions "normally attendant to arrest and custody" do not constitute interrogation.(18) Likewise, using a "plant" in a jail to obtain incriminating statements(19) and taping a conversation with the suspect's wife were not considered interrogation since the police did not "interrogate" in any meaningful sense of the word.(20)

It follows that when suspects blurt out confessions prior to or during the arrest process, these confessions are admissible. However, in Innis, the Court did make it clear that, for example, holding a lineup in which a coached witness picked the defendant as the perpetrator was interrogation but that it was not necessarily improper if the warnings had been given.

The Court has created only one exception to the principle that the warnings must be given prior to any custodial interrogation. In New York v. Quarles,(21) the Court held that in cases where the public safety is immediately at risk, the police may question an arrestee without the warnings. Since the warnings take about five seconds to give, these situations would seem to occur rarely.

Beyond these cases, the Court has dealt with what to do if the suspect invokes either the right to silence or to counsel. Miranda held that if the suspect invoked the right to silence, "interrogation must cease," and if the suspect invoked the right to counsel, "interrogation must cease until an attorney is present."(22)

Oddly, the Court has treated these two similar situations differently. Invocation of the right to silence is not absolute and may allow police to question further, at least if they have stopped for a while and rewarned the suspect.(23) If the suspect requests counsel, however, not only must questioning cease unless and until counsel is provided,(24) but the suspect can't be questioned about another crime(25) or questioned further after consulting with an attorney.(26)

However, there are some significant loopholes for the police. In Oregon v. Bradshaw, the Court ruled that if the suspect "initiates" further questioning after asserting the right to counsel, interrogation may resume. This was so even though the "initiation" was nothing more than the question "What is going to happen to me now?"(27) The Court did, however, consider it important that the suspect had been rewarned before questioning resumed. Moreover, if the suspect has not invoked the right to counsel, police need not inform the suspect that a lawyer is trying to reach him or her, nor give the lawyer access when he or she arrives.(28)

Finally, the collateral effects of Miranda have been limited. In Oregon v. Elstad,(29) the Court, reiterating Tucker to the extent that it held that Miranda warnings are not a constitutional right, concluded that Miranda, unlike a constitutional violation, did not have "fruit of the poisonous tree" implications.

Thus, if a suspect gives an unwarned confession, although that confession can't be used against him or her, a subsequent warned confession, or evidence that the first confession led to it, may be used in evidence. An improperly obtained confession may also be used to impeach the defendant who takes the stand.(30)

Balancing act

The above discussion touches on some of the more important cases that have molded Miranda into a form that would be only partially recognizable to the Warren Court that decided it. If the current Court were to overrule Miranda, it would also be overruling this body of law, which, while certainly not a model of either clarity or consistency, at least can be said to represent a conscientious effort by the political center of the Court to balance civil liberties against the need for effective law enforcement. Indeed, since Miranda was decided, many other countries have concluded that this is a reasonable balance and have adopted-Miranda-like requirements.(31)

Can Congress "overrule" a Supreme Court decision? Certainly not if it is a constitutional holding. However, the Fourth Circuit felt that the holdings of Tucker and Elstad, to the extent that they held that the warnings were not themselves a constitutional right, opened the door to approval of the congressional statute. Given that, in order to overturn state convictions, including Miranda's own, the Court's decision must be constitutionally based. The Court's calling Miranda a "prophylactic rule" rather than a constitutional right should not affect the constitutional force of the warnings requirement.

If the Court did allow Miranda to be legislatively overruled, this would not necessarily benefit police. The congressional statute still requires the government to establish that a confession was given voluntarily. Obviously, the easiest way to demonstrate this is to prove that the police did actually give the Miranda warnings.

But subsequent police tactics, such as falsely telling the suspect that a codefendant has confessed or using the false lineups referred to above, might be thought by some judges to render the confession "involuntary" even though the warnings were given. In theory, this is nothing new since involuntary confessions have always been disallowed, regardless of Miranda. But, in fact, the courts have allowed police to use Miranda as a rug under which questionable police tactics may be swept. A "wide open" suppression hearing in which the warnings were only one factor to be considered might cause courts to look under that rug more carefully.

Miranda has the further advantage of reminding the police that the courts are watching them. Compared to other countries which haven't required Miranda-type warnings until recently, there seem to be fewer complaints about police "verballing" (fabricating confessions) in the United States. Whether this is a result of Miranda's being on the books is hard to say, but I suspect that, in warning defendants, the police are warning themselves as well.

Finally, the Republican Court has sanded down Miranda sufficiently in recent years that it has not had a very harsh effect on law enforcement. Thus, the very decisions that liberals have decried as intolerably undercutting Miranda may prove to be its salvation.

Will the Court overrule Miranda? In part, for the reasons stated above, it seems unlikely, especially since the Justice Department itself has urged Miranda's retention. Furthermore, such a dramatic step would usually be signaled by the Court. Tucker was considered to be such a signal 25 years ago, but more recent evidence is to the contrary.

In particular, in the 1993 case of With-row v. Williams,(32) the Court was asked to declare that violations of Miranda by state and local police could not be raised on federal habeas corpus. Since the Court had previously held that Fourth Amendment exclusionary claims could not be so raised,(33) it might follow that Miranda issues, founded on a prophylactic device like the exclusionary rule, could also not be raised on federal habeas.

But the Court held to the contrary in Withrow:" `Prophylactic' though it may be, in protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards a `fundamental trial right.'"(34) Given this clear reaffirmation of Miranda, the Fourth Circuit's smug declaration that "we are a court of law and not politics"(35) in rendering its contrary decision rings hollow.

Notes

(1.) Copyright 1975 by William Rehnquist and Craig Bradley.

(2.) Michigan v. Tucker, 417 U.S. 433, 444 (1974) (citing Miranda v. Arizona, 384 U.S. 436 (1966)).

(3.) 166 F.3d 667 (4th Cir.), cert. granted, 68 U.S.L.W. 3365 (U.S. Dec. 6,1999) (No. 99-5525).

(4.) 18 U.S.C. [sections] 3501(a) (1994).

(5.) Dickerson, 166 F.3d 667, 671.

(6.) Oregon v. Elstad, 470 U.S. 298, 317 (1985).

(7.) Miranda, 384 U.S. 436.

(8.) 453 U.S. 355 (1981).

(9.) 492 U.S. 195,198 (1989).

(10.) Id.

(11.) North Carolina v. Butler, 441 U.S. 369, 373 (1979) (holding that the burden is on the prosecution to prove that defendant knowingly and voluntarily waived his or her right).

(12.) 392 U.S. 1 (1968).

(13.) Berkemer v. McCarty, 468 U.S. 420 (1984).

(14.) See, e.g., United States v. Sokolow, 490 U.S. 1 (1989).

(15.) California v. Beheler, 463 U.S. 1121 (1983).

(16.) Elstad, 470 U.S. 298.

(17.) 446 U.S. 291,301 (1980) (emphasis added).

(18.) Id.

(19.) Illinois v. Perkins, 496 U.S. 292 (1990).

(20.) Arizona v. Mauro, 481 U.S. 520 (1987).

(21.) 467 U.S. 649 (1984).

(22.) Miranda, 384 U.S. 436, 474.

(23.) The only Supreme Court case on this issue, Michigan v. Mosely, 423 U.S. 96 (1975), is confusing because the Court pointed to a variety of factors--including that the second interrogation was by different officers about a different crime--to conclude that the second interrogation was proper. It has never further clarified this issue.

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

(25.) Arizona v. Roberson, 486 U.S. 675 (1988).

(26.) Minnick v. Mississippi, 498 U.S. 146 (1990).

(27.) 462 U.S. 1039, 1042 (1983).

(28.) Moran v. Burbine, 475 U.S. 412 (1986).

(29.) 470 U.S. 298.

(30.) Harris v. New York, 401 U.S. 222 (1971).

(31.) See generally CRIMINAL PROCEDURE: A WORLDWIDE STUDY (Craig M. Bradley ed., 1999).

(32.) 507 U.S. 680 (1993).

(33.) Stone v. Powell, 428 U.S. 465 (1976).

(34.) Withrow, 507 U.S. 680, 691.

(35.) 166 F.3d 667, 672.

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.