Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
"No person . . . shall be compelled in any criminal case to be a witness against himself," and that "the accused shall . . . have the Assistance of Counsel"
This penultimate episode of Landmark Casesstarted with a clip of Miranda warnings t.v./movie clips. The cultural effects of the ruling was a factor when the Rehnquist Court years later (contrary to one of the guests' efforts) rejected an attempt by federal law to overrule Miranda. This might be a mixture of Rehnquist's concern about the power of the Supreme Court as well as -- contra to various comments by Mr. Cassell (including in response to a question taken from one "Joe Paulson" off Twitter regarding current FBI rules at the time) -- how the opinion was not quite as extreme (especially with the loopholes found) as all that.
The opening excerpt cites two constitutional provisions that was at issue. It is useful to note that though some think of this as a "right to remain silent" case, more is involved. The right to a lawyer is key here since such an advocate is that protective all rights of the accused (brings to mind how voting was seen as protective of all rights as well). Both being informed of your right to remain silent and to obtain a lawyer also was seen as a matter of equal protection, both given rich people already in effect had it and the FBI and certain foreign analogues were present:
The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial...
Finally, we must recognize that the imposition of the requirement for
the request would discriminate against the defendant who does not know
his rights. The defendant who does not ask for counsel is the very
defendant who most needs counsel. We cannot penalize a defendant who,
not understanding his constitutional rights, does not make the formal
request, and, by such failure, demonstrates his helplessness.
One thing Prof. Cassell argued was that the Miranda rule was extreme, including in cutting off interrogation once the defendant asked for a lawyer and giving a right at the time of the interrogation. The opinion provides a discussion of just what current FBI policy (admittedly optional) around Footnote 53 for those interested to compare and contrast. It also cites a federal appellate ruling that included this summary of the current federal warnings:
Appellant was informed that he need not talk to them; that he had a right to talk to an attorney or any other person he might choose; that the court would appoint him counsel; that anything he might say could be used against him.
Also, applying a rule to the interrogation was put in place a few years before, this time when a defendant asked for a lawyer. The rule was applied per Miranda before indictment: "law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession." The realization was that, especially given current practice (originally, there often weren't even police forces, no less pre-court interrogations*), that for the right to remain silent to have true meaning, it needed to be applied at that point.
The right (yes; we often here talk of a "privilege," but the text doesn't say that) to remain silent is present for various purposes. A core reason is to prevent torture and "third degree" tactics. There is a problem here of false confessions, but that isn't the only reason -- there is a threat there, but sorry, sometimes "torture works." But, it is a question of if it works as a whole given our system of justice. Current news shows that we are not free from illicit physical tactics during interrogations.
Still, the opinion here was more concerned about psychological tactics, including various means of trickery to in effect trick the often unwary to give up their rights. The Closer, etc., shows that such tricky is deemed acceptable up to some point and also appealing as a way to get a confession and/or solve crimes generally. The justices showed a wariness of the process. First, as noted, a right to a lawyer protected rights and overall the our adversary system, even to the extent of helping to ease confessions in a way deemed legitimate. Second, the right to remain silent had an overall dignity (not just a word used by Justice Kennedy) and privacy interest that people should only waive knowingly. Finally, the opinion at one point questioned just how important confessions are in many cases.
One concern of critics is that the opinion set forth an artificial rule when the previous "totality of circumstances" voluntariness rule was appropriate. As the other guest noted, such a rule is complex to apply in practice. This is the usual debate over set rules and balancing tests. The Fourth Amendment (which applies to blood tests and the like here) speaks of reasonableness. The Fifth and Sixth Amendment is more blanket. Also, the interrogation generally takes place in a "black box" where it is hard to determine just what happened. And, it should be noted that various exceptions and loopholes were found at any rate.
The overall story of the case at issue (not noted in the episode, Miranda was really a handful of cases, Miranda being the lead) shows the limits of these things. As is repeatedly the case, in cases where confessions are important (and in many cases they are not), a way around the loss was found by the government. His common-in-law wife, deemed not to be privileged, added important testimony along with the victim. Miranda remained in prison and later was killed in a knife fight. A suspect was given the warnings, in English and Spanish, but was never prosecuted.
These cases often bring complaints that victims of crime are unjustly burdened by excessive rights of criminals. But, where is the stopping point there? Each and every right of the accused can be cited in some sense in that context -- it is ultimately a matter of line drawing. The accused can be respected as can the needs of public safety. Our system of liberty includes protecting of rights, sometimes making it harder to prosecute, here helping the overall adversary system that in various ways oils the joints.
And, Miranda v. Arizona and related cases of a series to reform the system to better enforce constitutional rights were not the end. The concerns continue and we can adapt as we learn more and times change. It was suggested that videotaping would advance ends here. I think it isn't an Utopian solution, here or in respect to policing arrests, but surely. On that front, for instance, a right of privacy here is not promoted simply by making sure a confession is not involuntarily obtained. A continual relentless interrogation can burden that too. Ditto not protecting a right to a lawyer at a key moment. And, videotapes won't even show everything, including what might have happened off camera
No one opinion or set of magic words will fully honor the multiple principles the case here intended to advance. As with Brown v. Board and how simply ending state mandated segregation did not address many inequalities, a literal application will not protect the rights at hand. In various cases, the Supreme Court largely dealt with some technical issue and just how far the spirit of the rights were protected is questionable. But, nothing special there; it's a concern that will pop up in a variety of contexts.
Basic rights, an obligation to inform people of them and truly honoring the spirit of both is key here.
* One federal rule in place pre-Miranda was that a suspect had to be taken in front of a magistrate "without unnecessary delay" ("was readily accessible"), here only a matter of hours (in fact, even under an hour was a a concern). It was noted:
He was not told of his rights to counsel or to a preliminary
examination before a magistrate, nor was he warned that he might keep
silent and "that any statement made by him may be used against him."
Yes, it was a rule not a constitutional demand, but the principles behind the rule sound like constitutional principles and applicable here. The old rule that disfavored confessions outside of court is suggested by Art. III of the Constitution, setting this rule for treason convictions:
No person shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court.
Not "a confession in a squad room that can be used if the defendant later denies doing it." Citing the rule here in particular does argue for it not being in place in other cases, but constitutional rights protections repeatedly cite the most blatant concerns and if treason, why not other capital or even infamous crimes like murder and rape?
At the very least, if we do allow confessions outside of court, why not require special protections that include informed waiver opt outs? And, with additional context, the "problem" with this rule seems more a matter of degree.