Commentary: Miranda at 40: Solid as a rock or starting to crumble?

Daily Record, The (Baltimore), May 30, 2006 by Editorial Advisory Board

In 1963, a young laborer of Mexican descent was arrested for robbery in Phoenix, Arizona. The police took him to the stationhouse, where he was questioned for two hours regarding the $8 that had been stolen. During the interrogation, they also inquired about the kidnapping and rape of a local 18-year-old woman that had occurred days earlier. Conducting their entire inquiry outside the presence of a lawyer and without informing the suspect of his right to remain silent, the police pressured and prodded, cajoled and coerced, and ultimately pried a confession out of their suspect. On the basis of that confession, Ernesto Miranda was convicted and sent to prison.

This case resulted in the Supreme Court's creation of the Miranda rights, which almost every American knows by heart:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you can not afford an attorney, one will be provided for you.

For four decades, police officers both real and fictional have been reciting these rights to criminal suspects while taking them into custody. During that time, the Miranda rights have become both a bedrock principle of criminal justice and a staple for police dramas on television and in the movies.

For a concept seemingly so engrained in the fabric of our culture, the Miranda rights are often misunderstood. As we approach the 40-year anniversary of the Miranda decision on June 13, we reflect on what has happened to the Miranda rights - and what ultimately happened to Ernesto Miranda.

Confusion at every level

In the years leading up to Miranda, police officers used various coercive tactics to obtain confessions from suspects. Chief Justice Warren mentions several of these in the Miranda opinion: the good cop/bad cop routine; staging a lineup in which phony witnesses identify the suspect for fictional crimes in the hope that the suspect will confess to the actual crime; telling detained suspects that invoking the right to remain silent carries with it an implication of guilt; forcefully suggesting that the suspect waive his right to an attorney to save the expense (since he could just tell the truth on his own); and so on.

Courts determined the admissibility of confessions under a subjective voluntariness test that was cumbersome and often applied inconsistently. The court had to determine whether every confession was given voluntarily, basing its decision on factual evidence concerning the conduct of police officers, how an interrogation was conducted, and whether there was coercion.

As a result of the coercive tactics employed by the police, many criminal suspects were compelled to give confessions. In 1964, the Supreme Court invalidated one such confession because it was taken without an attorney present in violation of the Sixth Amendment right to counsel. This decision, Escobedo v. Illinois, was a concerted effort to rein in coercive police tactics. Despite its lofty goal, the opinion lacked clarity and utility, provided few solutions to the problems at hand, and led to confusion at every level. Police officers did not know how to enforce it. Courts did not agree on its application.

But Escobedo's greatest deficiency was that it did not provide a remedy to the crux of the problem: it did not prevent or even prohibit coerced confessions.

Bright-line rule, with a remedy

The Supreme Court revisited the issue just two years later in Miranda v. Arizona.

This time, foregoing any analysis of the Sixth Amendment whatsoever, Chief Justice Warren wielded the Fifth Amendment right against self-incrimination in his attack on coerced confessions. Borrowing from procedures already practiced by the FBI, he held that the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent . . . . The Miranda rights were born.

With Miranda came a clear bright-line rule: if the defendant was not read his Miranda rights, his confession was inadmissible. The coercive police tactics widely practiced before Miranda and condemned in Chief Justice Warren's opinion were rendered obsolete; any such coercion without first giving the Miranda warnings would be pointless, since a confession obtained without Miranda is largely useless to the prosecution.

The Supreme Court demonstrated the continuing vitality of the 1966 Miranda ruling in two recent decisions addressing both statutory and strategic challenges to Miranda. Six years ago, in Dickerson v. United States, the Supreme Court upheld Miranda in the face of assertions that it had been overruled by 18 U.S.C. Section 3501, which purported to reinstate the prior voluntariness test. Because a voluntariness test would run contrary to the constitutional holding in Miranda, the Court struck it down as unconstitutional. In so doing, the Court reaffirmed Miranda as a constitutional decision derived from the Fifth Amendment.