Column: A Rocky Decade for ‘Miranda’ Warnings (New York Law Journal)
By Christopher Dunn
The last 10 years have been tumultuous ones for Miranda warnings. The Supreme Court opened the decade with a watershed decision turning back a frontal assault on the warnings. Since then, however, as with other constitutional rights, an increasingly conservative Court has narrowed the Fifth Amendment’s protections against self-incrimination in a piecemeal fashion, culminating in three significant cases this Term.
Miranda Before the 21st Century
Prior to 1966, when the Supreme Court handed down its seminal decision in Miranda v. Arizona, the Court for decades had held that police interrogations violated the Constitution only when incriminating statements were not voluntary, with the voluntariness of the statements being determined though a case-by-case assessment of the totality of the circumstances of the accused and of the interrogation. That regime fundamentally changed with Miranda, in which the Court shifted to a bright-line approach, holding that the Self-Incrimination Clause of the Fifth Amendment required law-enforcement officials to provide a criminal suspect with the now well-known four Miranda warnings: “the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
This shift, explained the Court, was necessitated by the emergence of sophisticated interrogation practices intended to induce suspects into confessing. Given the effectiveness and prevalence of these tactics, the Court concluded, the goal of protecting against coerced confessions required that all defendants receive the prescribed warnings “[p]rior to any questioning.”
Over the ensuing decades, the Miranda warnings became embedded in law-enforcement practices and popular culture. During that time, however, Miranda was the subject of vocal criticism from those who argued that it saddled law-enforcement with unreasonable restrictions that did little more than protect the guilty. And when a Supreme Court far more conservative than the one that decided Miranda agreed in 1999 to accept a case that raised fundamental questions about the vitality of Miranda, many feared the Court was ready to abandon it.
That did not happen. Rather, in declaring unconstitutional a federal statute that authorized the admission of incriminating statements voluntarily given without Miranda warnings, the Court held in Dickerson v. United States that the warnings were not simply judicially-created rules designed to protect underlying constitutional rights but instead themselves were mandated by the Constitution.
With the Court’s ruling in Dickerson, Miranda appeared to be on sound footing. Since then, however, the Court has decided a series of Miranda cases, ruling in most of them against defendants claiming violations of their Fifth Amendment rights.
Torture, Poisoned Fruit and Interrogation Tricks
In the first half of the decade following Dickerson, the Supreme Court decided three cases presenting significant Miranda issues. Starting in 2003, the Court addressed whether the Fifth Amendment protects only against the use of defendant statements at trial or whether its is broader and bars interrogations without appropriate Miranda warnings, regardless of any subsequent use of information obtained through the interrogation. This issue was important because law-enforcement officials often may be more interested in extracting information from suspects than in proscecuting them.
The plaintiff in Chavez v. Martinez had been shot several times by police officers, arrested, and taken to a hospital. While severely injured, blinded, paralyzed from the waist down, and desperately trying to obtain medical help, the man was interrogated by a police supervisor without being given Miranda warnings. Never charged with a crime, he filed a damages action contending the interrogation violated his rights under the Fifth Amendment’s Self-Incrimination Clause.
The Court rejected his claim without a majority opinion. Justices Thomas, Scalia, and O’Connor and Chief Justice Rehnquist ruled that, though it was undisputed the interrogation took place without the required Miranda warnings, the Fifth Amendment is implicated only if and when the government seeks to use improperly obtained incriminating statements in a criminal prosecution against the person who gave the statement. Absent such an effort, however, no Fifth Amendment violation could occur, regardless of how coercive the interrogation. Justices Souter and Breyer provided the concurring votes for dismissing the claim but did so on the narrower ground that a damage remedy should not be available for violations of the Self-Incrimination Clause, leaving open the possibility of other remedies. Justices Kennedy, Stevens and Ginsburg dissented, protesting that “protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place.”
The following Term the Court returned to the issue of nontestimonial remedies for violations of Miranda rights when it considered whether physical evidence obtained through an interrogation that violated Miranda could be introduced into evidence against a suspect. In United States v. Patane, a man being questioned without effective Miranda warnings about an alleged violation of a protective order disclosed that he had a gun in his bedroom. When the government sought to prosecute him for unlawful possession of the gun, he argued it had to be suppressed under the “fruit of the poisonous tree” doctrine because the interrogation violated Miranda.
Echoing the debate in Chavez, the Court again fractured. Riterating their position in Chavez, Justices Thomas and Scalia, and Chief Justice Rehnquist contended that Miranda posed no bar to the use of physical evidence because, in their view, the Self-Incrimination Clause was implicated only when the government sought to use a suspect’s statements against him. In concurring in the judgment, Justices Kennedy and O’Connor refused to go so far, agreeing only that Miranda did not bar use of physical evidence, even in a case where Miranda was violated. This time, Justice Souter dissented, along with Justices Stevens, Ginsburg, and Breyer.
On the same day it decided Patane, the Court ruled in a case that harkened back to the intentionally tricky interrogation tactics that motivated Miranda in the first place. In Missouri v. Seibert, the Court considered a tactic by which police officers would intentionally interrogate a suspect without providing Miranda warnings and then, once the suspect had confessed, give the warnings and then induce the suspect to repeat the confession.
Again, the Court could not muster a majority opinion, though in this instance the outcome favored the suspect. Justices Souter, Stevens, Ginsburg and Breyer noted the obvious concern about the so-called “question-first” strategy, which they pointed out had been formally promoted by a national police-training organization:
By any objective measure, it is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content. The manifest purpose of question-first is to get a confession the suspect would not make if he understood his rights at the outset.
Given these concerns, the plurality concluded that all “two-stage” interrogations had to be assessed to determine whether the intervening warnings were sufficient to assure a truly voluntary confession. Justice Kennedy provided the fifth vote but limited his concurrence to those situations in which the police had resorted to a two-stage interrogation to circumvent Miranda, arguing that intervening warnings should otherwise be considered presumpively effective. Justices O’Connor, Scalia, Thomas and Chief Justice Rehnquit dissented, arguing that mid-interrogation Miranda warnings should always be presumed to be effective, leaving the suspect with the burden of showing that any subsequent confession was coerced.
Three Rulings This Year
Skipping forward to this year, the Court decided three more Miranda cases, all of which went against suspects. First was Florida v. Powell, where the Court considered whether a Tampa Police Department waiver form adequately informed suspects of their core Miranda right to have a lawyer present during an interrogation. The form provided as follows:
You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.
In an opinion by Justice Ginsburg and joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Alito and Sotomayor, the Court held that the form was adequate to satisfy the constitutional requirement that the warnings “reasonably convey to a suspect his rights as required by Miranda.” Specifically, the majority concluded that the warnings about the right “to talk to a lawyer before answering any of our questions” and “to use any of these rights at any time during this interview” were sufficient to inform a suspect of the right to have a lawyer actually present during the interrogation. In dissent Justices Stevens and Breyer read these provisions differently, highlighting the fact that the Court was bringing to the Tampa form a level of linguistic scruitiny that would be entirely lost on most criminal suspects. More importantly, perhaps, Powell may open the door to police departments drafting waiver forms calculated to be as ambiguous as possible.
One day after deciding Powell the Court addressed the circumstances in which the police could interrogate suspects after they had invoked their Miranda rights. At issue in Maryland v. Shatzer was a confession obtained from an inmate who agreed to be questioned two and one-half years after he had invoked his Miranda right not to be questioned without a lawyer present. In an opinion by Justice Scalia and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor, the Court modified an earlier ruling that had held that the police categorically were barred from resuming an interrogation once a suspect invoked Miranda rights. Rather, the Court held in Shatzer that, consistent with the underlying aim of Miranda to prevent coerced confessions, the police can seek to resume an interrogation after Miranda warnings are invoked if the suspect is released from custody and has been out of custody “of sufficient duration to dissipate its coercive effects.” And to assure clarity in the law, the Court decreed a bright line standard for such duration: 14 days. In concurring, Justice Stevens agreed that the interval in the case was sufficient to make the suspect’s subsequent waiver voluntary but objected to the newly announced 14-day rule.
Finally, there is Berghuis v. Thompkins, the notorious “one must speak to exercise one’s right to remain silent” case decided earlier this month. At issue in Berguis was the admissibility of statements made by a suspect nearly three hours into an interrogation when he had refused to answer questions up to that point. In terms of the rules of Miranda, the two specific issues were whether he had invoked his right not to be interrogated by remaining silent and then, if he had, whether he had waived that right by answering the questions that he ultimately did.
The five conservative members of the Court – Justice Kennedy, Chief Justice Roberts, and Justices Scalia, Thomas and Alito -- held that silence alone did not invoke any Miranda rights and that to do so a suspect must act affirmatively and unambiguously to invoke those rights. Then, notwithstanding specific language in Miranda itself that a suspect’s silence and subsequent confession could not constitute waiver and notwithstanding long-standing law imposing a heavy burden for establishing a waiver of Miranda rights, the Court held that where the government “shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” In an opinion by Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the Court’s liberal bloc understandably charged that the majority’s approach “turns Miranda upside down.”
A decade that started so promisingly with the Dickerson ruling cementing Miranda warnings into the Constitution turned into one in which the Supreme Court continually whittled away the key constitutional right against self-incrimination. And given the current composition of the Court, it seems likely that Miranda protections will continue to be challenged and will continue to be narrowed.
Christopher Dunn is the associate legal director of the New York Civil Liberties Union.