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Wednesday, May 12, 2010

Miranda: Always Unpopular but Still Poorly Understood

Ever since its inception, the Miranda decision has been the source of much controversy. There was a widespread belief that informing an arrestee of his right to counsel and right to remain silent, as well as the consequences should he decide to answer questions, would lead to an end of nearly all confessions. Even the Supreme Court likely thought this would be the consequence of its decision. But very quickly, law enforcement recognized that there was no such decline in a suspect's willingness to talk to law enforcement. Nowadays, the Miranda warnings are such an entrenched part of popular culture that from the perspective of an average arrestee, they are glossed over as a routine part of the pomp of arrest, akin to the ubiquitous mug shot or fingerprinting, so that the utterance of the words have little effect upon an arrestee.


But despite much evidence that Miranda has not handicapped law enforcement, that did not stop Congress from passing a law shortly after the Miranda decision aimed at effectively overturning Miranda's central holding. Even though the Court in Miranda invited Congress and legislatures to devise alternatives to its Miranda scheme, when Congress' foray into the arena was finally presented to the Supreme Court 34 years later, the Court ruled that Miranda established a constitutional rule, and thus it could not be upset by a mere law. With the Miranda rule now firmly entrenched as a constitutional rule, contrary to the suggestion of many politicians, pundits, and even the nations' Attorney General, and the former constitutional law professor who now occupies the White House, Congress lacks the authority to modify the Miranda rule. It may be upset only by a constitutional amendment or the Supreme Court's extraordinary decision to abandon stare decisis.


The current iteration of the incessant Miranda criticism is aimed at the fact that individuals suspected of terrorism who are arrested within the United States are routinely informed of their Miranda rights prior to questioning. The irony of providing constitutional protections to those hell-bent upon destroying the American way of life seems absurd to many and thus is a popular talking point for those who are poorly informed about the nature and consequences of living in a democratic republic governed by the rule of law.


It appears that amidst the hyperbolic rhetoric surrounding this topic, lost is an effective understanding of what Miranda actually means and how much of the alleged shortcomings in the Miranda decision are nonexistent and are fully addressed by Miranda and its progeny.


Miranda establishes a constitutional rule governing whether an arrestee's custodial statements may be used against him in court. There is no constitutional prohibition against law enforcement choosing to interrogate an individual without informing him of his rights under Miranda. Rather, the rule is simply that should law enforcement choose to do so, it may not use any statement against the individual in court. In the context of significant terrorism cases, the benefit of interrogating an individual about the scope of a conspiracy or the source of funding might be greater than the cost of not being able to use that statement against an individual in court.


When it comes to terrorism cases, often the evidence against an individual is so strong that a confession is hardly needed. For example in the case of the underwear bomber who was found aboard a plane wearing smoldering undies laden with explosives, a statement is not necessary to ensure a conviction. So for those who prefer the fictional world of Jack Bauer, where the constitutional rights of suspects are always lose in a cost / benefit analysis when pit against the pressing fear of impending armageddon, no alteration of the framework governing Miranda is required to enable law enforcement to interrogate suspects without advising them of their rights.


But even if law enforcement wants to be able to use a statement in court, contrary to public understanding, Miranda does not establish a hard and fast requirement that an investigator inform every suspect of his rights. Simply because a person is suspected of committing a crime and is questioned by the police does not mean that he must be informed of his panoply of rights. Rather, Miranda has two prongs, both of which must be satisfied before police are required to advise a suspect of his rights.


First, the individual must be "in custody." This is a term of art in the Miranda context that does not necessarily coincide with what an average person might equate with "custody." For example, when a person is stopped by the police during a traffic stop, even though he is not free to leave, he is not "in custody" so as to be entitled to the Miranda warnings. A person might even be placed in handcuffs or in the back seat of a squad car or even in a police interrogation room, and not be "in custody" for Miranda purposes. But on the other hand, a person does not necessarily need to be in a jail setting to be considered "in custody;" a person might be "in custody" while in his own home.


Second, even if a suspect is "in custody," the Miranda warnings are not required before any statement he makes may be used against him in court. Miranda warnings are required only if an individual is subject to custodial interrogation. Interrogation has been defined by the Supreme Court as any word or action "that the police should know are reasonably likely to elicit an incriminating response."  If a suspect spontaneously utters something while in custody, it can be used against him regardless of whether he was informed of his Miranda rights. Likewise, statements made in response to routine questions such as those required to book an arrestee, need not be preceded by the Miranda warnings. But on the flipside, interrogation is not limited to questions but can include actions. So not only are the police precluded from asking an arrestee, "Did you do it?" but are also precluded from taking more subtle interrogation techniques such as playing a co-actor's confession where the arrestee is implicated, or asking "trick" questions designed to discover evidence of intoxication.


Even if an individual is "in custody" and subject to interrogation, there are exceptions to the Miranda rule. For example, a statement obtained in contravention of Miranda may still be used to impeach a defendant if he testifies differently at trial. So if a defendant's confession is suppressed because the police did not comply with Miranda, the defendant cannot testify at trial that he had nothing to do with the robbery without the prosecution then being able to introduce his confession.


But the most significant exception is what has come to be referred to as the "public safety exception." In 1984, a time when the Court was becoming notably more conservative, the Court conducted its own cost / benefit analysis and concluded "that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." In that case, police had arrested a suspected armed rapist in a supermarket. Upon searching the suspect, the police discovered he was wearing an empty shoulder holster. An officer asked the suspect where the gun was and he responded "the gun is over there" and nodded in the direction of some empty cartons. Police recovered the gun and only then did they read the suspect his Miranda rights. Concluding that a hidden gun in a public area was a significant risk to public safety, the Court found the statement (and the firearm recovered as a produce of the statement) admissible despite a lack of the Miranda warnings. Even though the police could have secured the area and then conducted a more thorough search without asking the suspect where the gun was, the Court found the exception to the rule to be warranted.


It is in this public safety exception that modern critics of the use of Miranda for terrorism suspects seek to use as a foothold to achieve their goal of obliterating Miranda. However, critics are simply misguided in the belief that the public safety exception offers a legal basis to conduct a full interrogation of a suspected terrorist without affording him his Miranda warnings. Questioning pursuant to the public safety exception must be limited in scope. That is, it must be specifically targeted towards the concern for public safety. Therefore, immediately upon arresting the underwear bomber, law enforcement could have permissibly asked him if there were other terrorists in the air. But law enforcement could not have interrogated him about the source of his funding or training without advising him of his Miranda warnings.


Additionally, there is a temporal element to the public safety exception. As the Court emphasized in the case where it recognized the exception, it was aimed at eliminating the problem of police officers being placed "in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them." (emphasis added). When a suspect has been arrested days or weeks following a terrorist act, e.g. the Times Square bomber, as opposed to a suspect apprehended in the act, e.g. the underwear bomber, the imminence of a potential threat to public safety is diminished, and thus the public safety exception likely could not be stretched far enough to encompass such statements.


Given the scope of the Miranda holding and the previously recognized exceptions to this rule, the apocalyptic rhetoric of law enforcement being hamstrung in its ability to investigate an imminent threat to public safety is simply false. But even if individuals in the legislative or executive branches conclude that the Miranda doctrine is insufficient to address the modern threat of terrorism, these branches of government lack the constitutional authority to change this doctrine absent the extraordinary step of amending the constitution. Should the legislative or executive branches make changes in the policies of how law enforcement complies with Miranda's strictures, it shall be up to the courts, the ultimate guardian of the Constitution, to decide whether these actions satisfy constitutional minimums thereby permitting the use of any subsequently obtained statement in court. No one will disagree that brining suspected terrorist to justice is a preeminent priority, but to compromise this goal by commanding law enforcement to forego well-established constitutional principles so politicians can score some points on the "tough on terrorism" meter is counterproductive, foolish, and reckless.

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