Miranda Takes Another Pounding

With Berghuis v. Thompkins, the U.S. Supreme Court decided its third Miranda case of the 2009-2010 term. This case follows a consistent trend by the Court to further limit the protections provided by Miranda warnings. It leaves us wondering what protections remain from the Court’s initial Miranda opinion, and raises the question of what the best way is to protect the interests the Court originally identified in Miranda.

In Berghuis, the defendant, Thompkins, was given his complete Miranda warnings and said virtually nothing for the next three hours. After this almost three hours of silence, where Thompkins neither expressly invoked or expressly waived his Miranda rights, the police asked him if he believed in God and if he prayed to God to forgive him for shooting the victim. To this question the defendant answered “yes” and this statement was admitted against him at trial.

The issue for the Court was whether by saying nothing at all, Thompkins had invoked his right to remain silent. Relying and expanding on its precedents in Davis v. United States and North Carolina v. Butler, the Court held that under these facts, Thompkins had not invoked his right to silence by saying nothing at all. What is most interesting and perhaps most telling about the Court’s current view of Miranda protections was the Court’s willingness to apply their holdings in Davis and Butler to these facts without any attempt to distinguish those cases.

In Davis, after the defendant had been advised of his Miranda rights and expressly waived those rights, during the course of the interrogation he made an equivocal request for counsel. The Court held that such an equivocal request for counsel made during the course of the interrogation is not an invocation of that right and the police are under no obligation to stop questioning or to clarify the accused’s intent. In Berghuis the Court saw no reason to craft a different rule with respect to the defendant’s right to silence.

It certainly makes sense and provides useful symmetry to apply the same standard to an invocation for the right to counsel and the right to remain silent. What the Court ignored in Berghuis, however, is what really distinguishes this case from Davis. In Davis, at the beginning of the interrogation, the defendant expressly waived both his right to silence and the right to counsel. Because of that express waiver, there was no real question that he understood his rights and that he intended to waive them. Berghuis presented the Court with a critical difference. At no time did Thompkins indicate that he understood his rights and there was never an express waiver. This difference certainly raises a question as to the knowing and voluntariness of the defendant’s waiver that did not exist in Davis. Other than Thompkins’ three-hour silence in the face of persistent questioning followed by a “yes,” there is nothing in the record to indicate that Thompkins either understood his rights or that he intended to waive them.

While this is not the first time the Court has held that a waiver can be implied from the facts and circumstances of the case (see North Carolina v. Butler), this is certainly the first case where the Court has held that a three-hour silence in the face of persistent questioning is evidence of an implied voluntary waiver.

Moreover, the Court’s opinion in Berghuis undermines one of the core rationales for Miranda warnings. One of the primary reasons the Miranda Court required warnings in a custodial interrogation setting was to empower the suspect with the knowledge that he does not have to submit to the interrogation and he can stop the interrogation at any point. If we now say that the suspect’s silence in the face of police questioning will earn him hours of persistent questioning until he says something, it is difficult to see how Miranda warnings really level the playing field.

Nevertheless, Berghuis has the value of consistency in that it is the latest reflection of the Court’s disdain for Miranda. In light of this hostility, maybe it is time for advocates of Miranda type protections to focus their efforts on statutory reforms that codify Miranda’s most important protections. These advocates would do well to look at how the military treats these issues. Interestingly, Article 31 of the Uniform Code of Military Justice codified Miranda type warnings years before Miranda was decided. Because these requirements are not court-created rules but requirements imposed by Congress, they are not so easily avoided or narrowed by the courts. Certainly getting legislators and policymakers to support statutes, rules, and procedures that at first blush might be seen to benefit criminal defendants is no easy task, but it seems a better option than being continually pounded by the Court.

Victor Hansen

Miranda's Real Legacy

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.

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

Close Counts in Horseshoes and Miranda Warnings

In February, the Court announced the latest in a line of cases related to the sufficiency of Miranda warnings. In Florida v. Powell, the Court held that even though the police did not specifically inform the suspect that he had the right to consult with an attorney during questioning, what he was told was sufficient to convey that information.

In Miranda v. Arizona, the Court set out what it hoped would be a set of simple, easy to apply set of warnings that the police must give to a suspect before engaging in any custodial interrogation. The Miranda Court hoped that these warnings would help to level the playing field between a suspect and the police in the pressure-filled and coercive environment of a custodial interrogation. The Court also believed that a simple set of warnings would help to extract the Supreme Court and the lower courts from having to sort out the very fact-bound and inherently conflicting evidence that had, up to that time, characterized much of the litigation over the voluntariness of confessions.

Looking back now 44 years after Miranda, Florida v. Powell is another reminder that the Miranda Court’s vision has not been realized. On the contrary, Miranda has created a complex, confusing and inherently inconsistent body of caselaw and it leaves us wondering whether Miranda really solved anything.

The specific rights and warnings that the Court set out in Miranda were: the right to remain silent, the warning that anything the suspect says could be used against the suspect, the right to have an attorney present during questioning, and the right to have an attorney appointed if the suspect could not afford one. In Powell, the Court was asked to rule on the adequacy of the standard warnings used by the Tampa Police Department. The Tampa warnings did not specifically tell the suspect that he or she had the right to have an attorney present during questioning. Rather, the warnings told the suspect that he or she has the right to talk to a lawyer before questioning, and that the suspect has the “right to use any of these rights at any time you want during questioning.” The Court, in an opinion written by Justice Ginsberg, found that, while these warnings did not track exactly the requirements of Miranda, the warnings sufficiently informed the suspect that he or she could have an attorney present during questioning.

It is true that the Tampa Police Department’s warnings do not depart drastically from the Miranda requirements, but the question remains: if Miranda set out such bright line guidance, why depart from it at all? Could it be that the police are hoping that by simply throwing in a catch-all phrase at the end of the warning, the suspect will not fully make the connection between the right to consult with counsel before questioning and the right to have counsel present during questioning? When the Court approves of these “close enough” warnings procedures like the one in Powell, is it also signaling that it too does not think much of the protections provided by Miranda? What does seem sure is that a healthy majority of the Court, both liberals and conservatives, will continue to pursue a course of Miranda jurisprudence that departs from the simple guidance that the Miranda Court hoped to achieve.

Victor Hansen

Supreme Court Draws a Bright Line for the Edwards Bar

In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.

The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.

In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.

In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.

On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.

How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.

If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.

The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?

Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.