Take Technicality Out of Miranda

The Supreme Court is to decide whether to review a case involving Miranda rights, prompting television punditry to sound a death knell for the famous warnings that include the right to remain silent and to have an attorney during questioning. Such alarming analysis misunderstands the legal contentions actually before the court and thus the true importance of the issue.

The case the Supreme Court is considering is from Virginia, where a lower court refused to allow Charles Dickerson, charged with a series of bank robberies, to suppress his undoubtedly voluntary confession because of a technical dispute over the precise time that he received his Miranda warnings.

To reach this conclusion, the lower court relied on a law passed by a Democratic Congress in 1968 and signed into law by President Johnson. This law, known as Section 3501, requires that all voluntary confessions be admitted into evidence in federal court. In making that determination, federal judges are instructed to look at all of the circumstances surrounding a case, including whether a suspect received his Miranda warnings. However, the presence or absence of any particular factor does not require a judge to admit or suppress a confession.

Contrary to what some legal commentators have proclaimed, the Miranda warnings are not in any jeopardy. Even if the Supreme Court upholds Section 3501, federal law enforcement agencies will continue to give warnings to help persuade judges that suspects’ confessions were voluntary. Indeed, the lower court’s opinion was explicit on this point: “Nothing in today’s opinion provides those in law enforcement with an incentive to stop giving the now-familiar Miranda warnings.” This prediction has been fully confirmed: Since the Dickerson ruling last February, federal law enforcement agencies have continued to deliver the Miranda warnings.

While the Supreme Court is not confronted with the question of whether to end Miranda warnings, the issue before it is nonetheless of exceptional importance. Until the Virginia ruling, any deviation from the Miranda requirements led to the suppression of voluntary confessions, no matter how innocent the police mistake or how close the question of whether a mistake even was made. Despite police officers’ best efforts, numerous cases turn on technical issues about whether they properly followed all the Miranda requirements. And even more often, police officers are not able to question suspected criminals because of Miranda’s little-known procedural requirements. In a recent study published in the Stanford Law Review, economist Richard Fowles and I estimated that as many as 136,000 violent crimes and 299,000 property crimes go unsolved each year because of the Miranda procedures.

These unsolved cases stem not from the Miranda warnings, which have scant effect on suspects, but rather from the vast doctrine that the Supreme Court has assembled around Miranda concerning proper “waiver” of rights and resumption of questioning. That doctrine is in no sense required by the Constitution. The 5th Amendment forbids “compelled” self-incrimination–that is, the extraction of involuntary confessions. But the Supreme Court has repeatedly explained that the Miranda rights are “not themselves rights protected by the Constitution.”

Because the Miranda rights are not constitutional in character, Congress is free to develop alternative approaches to the issue. Indeed, it is a little known fact that Chief Justice Earl Warren’s 1966 opinion in Miranda specifically “encouraged” Congress and the states to develop alternative approaches to the Miranda regime.

In passing Section 3501, Congress simply took up the Supreme Court’s explicit invitation. The alternative approach that Congress mandated requires federal courts to give careful scrutiny to whether a confession was given voluntarily. But for confessions like Dickerson’s found to be “voluntary,” the mere fact that a police officer deviated from some aspect of the Miranda requirements does not lead to exclusion.

The true importance of the case before the Supreme Court, then, is whether the focus of our criminal justice system is going to be the search for truth. A wrongdoer’s voluntary confession is the most reliable and important piece of evidence in that search. Yet for too long, defense attorneys have been able to capitalize on technical issues surrounding Miranda to keep juries from hearing undeniably voluntary confessions. In the Dickerson case, the Supreme Court has an opportunity to establish truth-seeking as the primary goal of our criminal courts.