My colleague Professor Friedman’s posting about Miranda rights and the enduring values represented by Miranda raises some very interesting issues, particularly in light of the Obama administration's recent efforts to create a legislative exception to Miranda warnings in terrorist cases. In seeking to create this terrorist exception, the administration seems to be exploiting the schizophrenic way the Supreme Court has treated Miranda warnings since the Court created them in 1966.
If the administration is successful in its attempt to get Congress to create a terrorist exception, it will not be the first exception to the Miranda rule. Shortly after Miranda was announced, in fact, the Court recognized an emergency exception to the warning requirements in Dunaway v. New York. That exception is still very much in use today. The Attorney General recently stated that the FBI interrogated Umar Farouk Abdulmutallaban, the alleged “underwear bomber,” without giving him Miranda warnings, citing to the emergency exception.
In addition, the Court has also significantly limited the application of the exclusionary rule when police conduct is a mere violation of Miranda warnings. In United States v. Patante, a majority of the Court held that the remedy for a Miranda violation is limited to the suppression of the statement so obtained. The suppression does not apply, however, to the derivative evidence that came from that unwarned statement, particularly when that derivative evidence is highly probative.
Finally, in Dickerson v. United States, while the Court did uphold Miranda’s validity and rejected Congress’ attempt to eliminate Miranda by statute, the basis of the Court’s rationale for upholding Miranda was anything but clear. In his dissent in Dickerson, Justice Scalia launched a powerful attack on the Court’s schizophrenic treatment of Miranda, noting that at various times the Court has referred to the warnings a “prophylactic rule,” a “constitutional decision,” “constitutionally based,” and a rule with “constitutional underpinnings,” but has never held that a failure to give Miranda warnings violates the Constitution. Indeed, if a failure to give Miranda warnings was a constitutional violation, the validity of the emergency exception which the Court recognized in Dunaway would be highly suspect.
So it is this against this background that the Obama administration is seeking to create a terrorist exception to Miranda. If the administration is successful, and if the courts uphold this terrorist exception, this will add yet one more chapter to Miranda’s storied history–a history that reflects a complex, confusing and inherently inconsistent body of caselaw. Scott Turow suggests that the legacy of Miranda is an expression of equality before the law. But in light of its history, the legacy of Miranda may be that courts are particularly ill equipped to legislate from the bench.