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May 25, 2010

Modifying Miranda in Terrorism Cases

When government action threatens our ability to control information about ourselves, the first place we seek refuge is the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects.” But the Fourth Amendment is not the only constitutional provision that concerns privacy. As interpreted by the United States Supreme Court, most famously in Miranda v. Arizona, the Fifth Amendment, too, protects our ability to keep information to ourselves in the particular instance when police officers are asking us questions we do not wish to answer.

Miranda has become part of the culture. Everyone who has ever seen an episode of some iteration of Law & Order likely knows that Miranda requires police officers to advise a person arrested that he or she has the right to remain silent. And this judge-made rule is so much a part of the fabric of our laws that when, in Dickerson v. United States, it faced serious challenge on constitutional grounds, the Court overwhelmingly affirmed Miranda’s validity.

Following the decision in Dickerson, lawyer and novelist Scott Turow suggested that the actual utility of Miranda is quite limited: at this time, he wrote, “Miranda has little practical impact on the interaction between suspects and cops.” This is because “courts and cops have accommodated themselves to the rule.”

For Turow, Miranda is about more than utility: it is a “vivid emblem of central ideas about the law,” standing for the principle that “[c]atching bad guys is important, but it is not the only thing this society values.”

Notwithstanding Dickerson, Miranda’s constitutional provenance is suspect. There are other ways to protect a person’s right to remain silent. For instance, the government could simply be put to its proof to demonstrate that any given confession was, in fact, knowingly, intelligently, and voluntarily made. Instead, in the mine run of cases, the government need only show that the police gave the warning and that the suspect heard it. This is likely better than nothing, but, as Turow has explained, what enduring value Miranda has lies more in what it means, rather than what it does.

And even that symbolic value may once again be put to the test, for the Obama administration recently announced that it would seek a law allowing investigators to interrogate terrorism suspects without administering Miranda warnings. The proposal is in tension with the fact that the Constitution does not distinguish between ordinary criminals and terrorists—or even ordinary criminals and innocent bystanders. This is the great leveling force of the Constitution’s privacy protections, and Miranda in particular: as Turow put it, the decision “is an expression of equality before the law.”

So when we begin to discuss exceptions to Miranda’s mandate in cases alleging terrorism, what we are really saying is all persons may not, in fact, be equal before the law. To be sure, modifying Miranda for terrorism cases is expeditious. The real question is whether such modification is consonant with the consistency and fairness we have long associated with the rule of law.

Lawrence Friedman

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