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The Miranda Waltz

While I was out of town, the Supreme Court agreed to decide a case on the scope of its Miranda ruling. The issue is whether physical evidence discovered because of what a suspect tells the police without being fully informed of his Miranda rights is admissible in court. The Supreme Court agreed to review a Court of Appeals decision excluding such evidence. Here is the Washington Post’s story about the case.
At one level, it is surprising that the Court took the case for review. Last term, in the Dickerson case, the Court seemed to rule (by a 7-2 vote) that the Miranda warning is more than just a very good way of making sure that the police does not coerce confessions from suspects in violation of the Fifth Amendment right against self-incrimination — the Court apparently ruled that the warning is a constitutional requirement, and that confessions obtained in the absence of the warning violate the Fifth Amendment and are inadmissible. Once one accepts this piece of judicial overreaching, it follows that physical evidence obtained in the absence of a Miranda warning is inadmissible. Under the Fifth Amendment, the police can no more coerce suspects into disclosing the whereabouts of incriminating evidence than it can coerce them into confessing. So if un-Mirandized confessions are necessarily coerced, and thus inadmissible, then so too are un-Mirandized statements about where incriminating evidence can be found. In sum, the criminal defense lawyer quoted in the Washington Post is correct in saying “now that the court has said Miranda is constitutionally compelled, it’s hard to see how you can take un-Mirandized statements and use them without violating the right against self-incrimination.”
But, the Supreme Court being what it is, this does not mean that it will affirm the appeals court decision excluding the evidence. In fact, my friend Bill Otis, an expert in this area, predicts that the Court will reverse that decision. This could happen in one of two ways. First, the police apparently began reading the Miranda warning to the suspect in the case at hand, but the suspect said he had heard the warning before and didn’t need to hear it again. It is possible that the Court will rely on this fact and duck the deeper legal issue. But even if the Court gets to that issue, Otis thinks it will probably find that the physical evidence should have been admitted. Prior to the Dickerson decision, the Court had tended to permit the admission of such evidence, thus suggesting that the Miranda warning is not constitutionally compelled. In Dickerson, the Court danced around these cases, and it can just as easily dance around Dickerson if it is so inclined. The Court clearly is loathe both to do away with Miranda and to impose the full logical consequences of that decision on the police. So it may well be willing to forgo doctrinal consistency in order to accomplish its competing policy objectives.
All of which is consistent with my view that the Rehnquist Court is as much a legislative-type body as the Warren Court was. The Warren Court legislated through rulings that mandated sweeping social change. The Rehnquist Court (which might more accurately be called the Powell/O’Connor Court) legislates by finding various policy-based compromise solutions to limit the damage brought about by the Warren Court’s “legislation.”

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