THE 1966 MIRANDA decision requiring police to inform suspects that they have a right to remain silent was the centerpiece of the Warren court's "revolution in American criminal procedure" and a prime target of those who believed the courts had gone "soft" on crime.
But most legal scholars long ago concluded that the time to overrule Miranda had come and gone. Recently, they were stunned by the news that the U.S. 4th Circuit Court of Appeals in Richmond, Va., had ruled, against the express wishes of the U.S. Department of Justice, that a provision in a 1968 federal statute, in effect, overruled Miranda, the famed "you have a right to remain silent" Warren court decision now so familiar to everyone.
The 1968 statute provides that a statement "shall be admissible in evidence if it is voluntarily given." It was designed to restore the pre-Miranda "voluntariness" test for admitting confessions; the old test provided much less protection than Miranda against police methods designed to obtain confessions.
The reasoning of the 4th Circuit was that Congress has the power to override rules of evidence and procedure that are not required by the Constitution.
In United States vs. Dickerson, the appeals court decided that Miranda rules are not constitutionally required, but only "prophylactic" or preventive rules designed to reinforce the constitutional right, which is the privilege against self-incrimination or the protection against the use of a suspect's "coerced," or "involuntary," confession.
Therefore, the court said, the 31-year-old statute, which had never been enforced, is a valid exercise of congressional authority to abolish judicially created rules that are not part of the Constitution.
At the time the 1968 statute was enacted, many did not consider it a serious attempt to do away with Miranda, but rather an expression of Congress' anger at the Warren court and an occasion to strike a law-and-order pose.
In any case, within a short time, newly elected President Nixon was able to replace Chief Justice Earl Warren and three of his colleagues. And the new Supreme Court was not enamored of Miranda.
Writing for the majority in a 1974 confession case, Justice William H. Rehnquist maintained that the Warren court had "recognized" that the Miranda warnings "were not themselves rights protected by the Constitution," but only "prophylactic standards" designed to "safeguard" the privilege against self-incrimination.
This is misleading. In Miranda, the Warren court said the Constitution does not insist that reading Miranda rights to suspects is the only solution, but quickly added that unless other procedures are "at least as effective" in apprising accused people of their rights, the Miranda warnings "must be observed." (The 1968 statute does not offer any alternative safeguard to Miranda; it simply turns the clock back to pre-Miranda days.)
No head-on collisions
The post-Warren court's way of thinking and writing about Miranda made the case for upholding the 1968 statute a good deal stronger than it had been originally. But in the past three decades, the statute has never provoked the head-on collision that some expected.
Having serious doubts about the constitutionality of the statute, the Department of Justice, regardless of which administration it served under, has virtually ignored the provision.
But two conservative legal groups, the Washington Legal Foundation and the Safe Streets Coalition, led by Paul Cassell, a University of Utah Law School professor who has become the nation's leading critic of Miranda, have repeatedly urged the federal courts to inject the 1968 statute into their cases.
On Feb. 8, these legal groups finally tasted success when a 2-1 majority of the 4th Circuit ruled in their favor in United States vs. Dickerson. The appeals court emphasized that in the past 25 years the Supreme Court has consistently referred to the Miranda warnings as "prophylactic" rules.
But "prophylactic" is not a dirty word. Sometimes such preventive rules are necessary and proper. The privilege against self-incrimination, no less than other constitutional rights, needs "breathing space." And preventive rules may be the best way to provide it.
Miranda was based in part on the realization that case-by-case determination of the "voluntariness" of a particular confession was severely testing the capacity of the judiciary.
Moreover, a presumption that a confession obtained under certain conditions and in the absence of certain safeguards is not freely given seemed warranted. The pre-Miranda "voluntariness" test was too mushy, subjective and unruly to provide suspects with adequate protection. And it was too time-consuming to administer. Something more concrete was needed and that turned out to be Miranda.
It is interesting to note that the post-Warren court also has established conclusive presumptions and promulgated preventive rules. In the 1981 Edwards case, for example, the Burger court held, in effect, that when custodial suspects ask for a lawyer, one can presume that any subsequent waiver of rights that comes at police and not the suspect's instigation has been compelled by police.
The Rehnquist court has reaffirmed and reinforced the Edwards rule. In 1990, speaking for a 7-2 majority, Justice Anthony M. Kennedy observed: "The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. [It] conserves judicial resources, which would otherwise be expended in making difficult determinations of voluntariness."
As the Edwards rule demonstrates, establishing presumptions and preventive rules is inherent in the work of the Supreme Court.
The 4th Circuit panel that decided Dickerson did much more than try to deal Miranda a fatal blow. Its approach to constitutional interpretation restricts the ability of the Rehnquist court and every court to construe the Constitution in light of institutional realities.
Yale Kamisar is a professor at University of Michigan Law School. This article first appeared in the Los Angeles Times.
Pub Date: 02/21/99