University Times

Television crime-show fans know the routine: When the bad guy is apprehended, the arresting officer reads him his rights: "You have the right to remain silent. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you. If you waive your rights, anything you say can be used against you in a court of law."

These rights, known colloquially as the Miranda warnings, were named for the 1966 Supreme Court decision in Miranda v. Arizona, which, broadly stated, held that confessions rendered without the warnings are inadmissible in court.

Last June, the Miranda warnings were upheld by the Supreme Court, in the case of Dickerson v. the United States. (See summary in related story.) Long-time critic of the original Miranda decision, Paul G. Cassell, presented a friend of the court argument to the Supreme Court in the Dickerson case last April. Cassell, the Jerome I. Farr Professor of Law at the University of Utah College of Law, recounted that experience at Pitt law school's Mellon Lecture Sept. 14. He also critiqued the Supreme Court's majority decision, which reversed the Fourth Circuit court ruling.

"They say: In law, you get either a victory or a development," Cassell told the Mellon Lecture audience of about 125. "Let's just call this a development in the area of Miranda law."

Cassell called the court's majority opinion "incoherent and without rationale," one that was not reconciled with prior Supreme Court decisions and did not address sufficiently the suggested alternatives available to the court.

At issue in Dickerson, Cassell said, was not overturning Miranda, but reconciling it with Supreme Court decisions that allowed exceptions to Miranda and with the 1968 congressional statute 3501.

Statute 3501 makes the admissibility of statements turn on whether they were made voluntarily, with or without Miranda warnings, at the discretion of the presiding judge.

"It's the sign of an imperial judiciary ignoring Congress, with judges who are incredibly sure of themselves," Cassell said. "If the court claims the last and only word on a subject, it has the responsibility to explain it coherently. In my view, the court did not do that in this case."

Cassell contended that the Supreme Court had a number of options that would have allowed the Fourth Circuit Court decision to stand without threatening Miranda. Instead, he said, the court chose to pit statute 3501 directly against Miranda, in an either-or situation.

In the majority opinion issued June 26, Chief Justice William Rehnquist wrote: "Because of the obvious conflict between our decision in Miranda and 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, 3501's totality-of-the-circumstance approach must prevail over Miranda's requirement of warnings; if not, that section must yield to Miranda's more specific requirements."

"This suggests the court had no choice," Cassell said. "First of all, Miranda itself asked for, even encouraged, Congress to enact legislation with alternatives that met the minimum Miranda requirements. 3501 was an effort by Congress to do just that."

In the court of appeals, the Fourth Circuit judge ruled that statute 3501 covered this exact circumstance. He further ruled that Miranda was a "prophylactic," decision, meaning it was a constitutional ruling — as opposed to a constitutional right — to be applied case by case and not constitutionally required.

Before the Miranda ruling and going back to English common law, confessions were governed by "voluntarism taken in totality," Cassell pointed out. "Miranda supplemented this by requiring [specific] warnings. By passing section 3501, Congress merely reestablished voluntary confessions as admissible."

According to Cassell, there is a serious doctrinal problem with pitting a Supreme Court ruling against a law passed by Congress, especially since the Supreme Court had acknowledged Miranda exceptions in its own prior decisions.

"Miranda announced a constitutional rule, with constitutional underpinnings, and said it was constitutionally-based — but not a constitutional right. This is the centerpiece of Justice Scalia's dissent [in Dickerson]," Cassell said.

Justice Antonin Scalia, who was joined in the minority opinion by Justice Clarence Thomas, wrote: "[The Court needs to] come out and say quite clearly: 'We reaffirm today that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States.' It cannot say that, because a majority of the Court does not believe it. The Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress [3501]."

Cassell argued that taking the common law approach as spelled out in 3501 only provided flexibility and did not preclude Miranda warnings. "Dickerson showed that there is a difference between an involuntary statement and a statement that isn't preceded by Miranda warnings," Cassell said.

Furthermore, he pointed out, "there are civil remedies in place to curb custodial interrogation abuse: Victims coerced into confessions can sue police officers."

In the majority decision, the Supreme Court addressed those issues in a mere four sentences, concluding that the "voluntary totality of the circumstance" criteria were not adequate substitutions for Miranda warnings, but without saying why.

The Supreme Court also acknowledged it had made exceptions to Miranda in the past, including a 1984 ruling in New York v. Quarles, which concluded that public safety concerns overrided a defendant's claim to Miranda warnings.

In addressing the issue of exceptions, Rehnquist wrote, "No constitutional rule is immutable, and the sort of refinements made by such cases are merely a normal part of constitutional law."

The court could have made one "modest modification" in its Miranda interpretation and allowed the Fourth Circuit Court's decision to stand, Cassell argued. "The [Supreme] Court established that it is an irrebuttable assumption [that a confession is inadmissible] if Miranda is not used. Let's change irrebuttable assumption to a rebuttable one. If it is a rebuttable assumption, we could allow a judge to enter a confession into evidence if the confession could be established to be voluntary by the interrogating officers, maybe under a higher standard of evidence. Maybe relying more on videotaping for [securing] confessions, for example."

The court let this argument go without comment, Cassell said. "But why were the alternatives offered inadequate? The court's failure to offer an explanation raises serious questions. At a minimum the court should explain why."

In other cases where the court has struck down laws as too vague, it has provided a constitutional road map for what would pass the constitutional test, he said.

Finally, Cassell contended, there was the issue of separation of powers. "Assume for a moment there was no Miranda decision. If Congress passed that as law, would the court rule it was beyond the power of Congress to re-write the Constitution? Why shouldn't the same rule apply to the court? If Congress does pass legislation, the court can only overturn it if it's unconstitutional."

By admitting that the court's majority did not believe Miranda warnings were a constitutional right, the court was exercising a double standard at minimum and perhaps was even over-stepping its power, Cassell said.

But the majority's opinion, walking a legal tightrope, disagreed. "Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedures that are not required by the Constitution," Rehnquist wrote. "But Congress may not legislatively supersede our decisions interpreting and applying the Constitution….

"We concluded [in Miranda] that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be 'accorded his privilege under the Fifth Amendment … not to be compelled to incriminate himself.' Accordingly, we laid down concrete constitutional guidelines for law enforcement agencies and courts to follow."

Cassell said, "I thought we had the perfect case to test this [particular legal issue]. I was disappointed. And I want to ask: Is it the right result? If, as in Dickerson, a dangerous criminal has given a voluntary confession, in the interest of justice, doesn't the jury have the right to hear it?"

–Peter Hart