Some people are born into fame or notoriety. Others just get lucky. Ernesto Miranda belongs in the second category.
Miranda v. Arizona
In 1963, Phoenix, Arizona, police officers arrested Miranda for kidnapping and rape and took him to a local police station. After the complaining witness identified him, two officers questioned Miranda for two hours without informing him that he had a right to have an attorney present. By the end of the interrogation, they had his signed confession, which the prosecution introduced into evidence at Miranda’s trial. Miranda was convicted of both crimes.
Three years later, the Supreme Court of the United States reversed Miranda’s conviction on the ground that the officers had obtained his confession without advising him that he had a right to have counsel present during their interrogation. In an opinion for a 5–4 Court written by Chief Justice Earl Warren, the Supreme Court ruled that a suspect must be given certain warnings—known ever since as the Miranda warnings—before being subjected to a custodial interrogation.[1] The police must advise a suspect that he has the right to remain silent; that anything he says can be used against him at trial; that he has the right to an attorney and to have that attorney present during police questioning; and that if he cannot afford an attorney, the court will appoint one for him. The recitation of those rights, however, is not sufficient for a confession to be admissible: A suspect must waive his rights for any statement to be admissible. Finally, a suspect is entitled to end the interrogation at any time by invoking either his right to remain silent or his right to have an attorney present.[2]
In Miranda’s case, the Phoenix police did not advise him of his rights prior to questioning, so his confession was inadmissible.[3] The Court therefore reversed his kidnapping and rape convictions.[4]
Miranda has come to be recognized as one of the most famous—or infamous, depending on your perspective—Warren Court decisions. There was an immediate outcry from the law enforcement community. Their criticisms were intense; their predictions, dire: “Miranda will handcuff the police. It will end an officer’s ability to obtain a suspect’s confession. It will turn an interrogation into a lawyer-mediated interview. It will require the police to station defense counsel in every precinct house. It will transform police stations into courtrooms. It will shelter the guilty. It will spur an increase in the crime rate.” Those criticisms are not just the exasperated hyperbole of the losing party in a case. Three dissenting Justices—Justices John Marshall Harlan II, Potter Stewart, and Byron White—voiced the same fears.[5]
Those, by the way, are just the criticisms voiced by law enforcement. Some scholars condemned Miranda on the ground that the Supreme Court had acted like a legislature—or, better yet, like Platonic Guardians—by transforming the advice-of-rights admonition then used by Special Agents of the Federal Bureau of Investigation as a matter of practice into permanently fixed constitutional law.[6] Miranda took the brief text of the Fifth Amendment Self-Incrimination Clause—“No person…shall be compelled in any criminal case to be a witness against himself[.]”—and “read” it to demand a new, far more fulsome set of warnings:
[A suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.[7]
Calling that an “interpretation” of the Self-Incrimination Clause, many argued, gave new meaning to the term chutzpah.
The Case for Miranda
But not everyone predicted that the sky would fall—or was troubled by that prospect. In fact, some said that the collapse was long overdue. Numerous parties lauded the majority for its willingness to make some effort, however small, to keep the police from browbeating, intimidating, and coercing a suspect into confessing.[8] After all, Miranda was not the first time that the Supreme Court had to decide whether the police had coerced a confession from an unwilling (and possibly innocent) suspect. For the 30 years preceding Miranda, the Supreme Court had reviewed a never-ending series of cases in which it had been confronted with that problem.
In the first case, Brown v. Mississippi,[9] decided in 1936, a defendant was hauled into court still exhibiting the rope burns from where he had been hung until he confessed.[10] In other cases, the police had isolated a suspect for days of intensive “grilling” to secure his confession[11] or confined him under torturous conditions of confinement.[12] And various suspects had at least facially legitimate claims that they had been beaten until they talked.[13]
But cases with admittedly extreme facts came before the Supreme Court only early in the process. As the Supreme Court found those circumstances coercive, the state trial courts began to make factual findings that the Court found suspect.[14] In other words, after the Court had made it clear that coerced confessions were verboten, the states began a form of “massive resistance” to that other Brown decision.[15]
During the years after Brown, the state courts generally persisted in admitting confessions extracted by third degree practices. The Court, seeing its Brown decision being disregarded, reversed these convictions as well. In numerous cases, the defendant told a credible story of physical abuse by the police, but the trial judge discredited it. Since the Supreme Court does not admit to reviewing findings of credibility, it discovered other bases for reversal in the uncontested facts of those cases. Thus, Brown was extended from cases involving admitted physical brutality to those admittedly involving prolonged “grilling,” mob intimidation, etc.
As the chain of reversals lengthened, the lower courts responded by finding all the relevant facts against the defendants. No longer could they risk admitting confessions concededly extracted by brutality or other coercive pressures, so they found that the pressures did not exist. Time and again, cases came before the Supreme Court in which the defendant testified that he had been abused in the police station, the police denied it, and the trial court believed the police. Brown was palpably being evaded in at least some of these cases, and there was little that the Supreme Court could do about it.[16]
The Supreme Court could have thrown up its hands in surrender, but it decided to take one more stab at preventing police coercion. Miranda was it.
[W]hat the Supreme Court [did]…is to recognize, after long and exasperating experience, that the right vouchsafed to suspects by Brown v. Mississippi is essentially worthless if it is left to vindication by state trial judges upon the testimony of policemen. No experienced criminal lawyer could doubt that judgment. Miranda’s insistence that the suspect have a lawyer in the station house is plainly necessary, as the Court says, “unless other fully effective means are devised to…[protect his] right of silence.” And the only fully effective means that comes to mind is a shakeup of the police forces and the trial benches of the fifty states.[17]
In sum, confronted with three facts—the continued use of coercion, even brutality, by the police to obtain a confession to “clear” a case (i.e., make an arrest); the readiness of the interrogating officers to lie in court about their tactics; and the willingness of the state courts to become complicit in the officers’ perjury—the Supreme Court concluded that the only option left was to place a defense lawyer in the interrogation room should a suspect ask for one. To do that, the police must advise him that he has that right and must refrain from any further interrogation until an attorney arrives. Only by bringing an independent, impartial third party into the interrogation room would there be some chance that police coercion would end, because a defense attorney could have a confession excluded if Miranda’s new rules were not strictly satisfied.
The effect was to make sure that a suspect had a lawyer before trial when the Supreme Court thought one was most needed. The Court’s 1963 decision in Gideon v. Wainwright[18] had guaranteed every defendant the right to have a lawyer present at trial. Miranda effectively granted a suspect the same right in an interrogation room. A lawyer would protect a suspect from being coerced or improvidently waiving his right to remain silent. The risk, of course, was that no suspect would confess once his lawyer showed up. That may be a foul-tasting medication for law enforcement, but a 30-year-long disease required it. So the Court prescribed it.
The Case Against Miranda
“Foul!” cry Miranda’s critics.[19] Use of “third-degree tactics”[20] may have been a common law enforcement tactic back in the “bad old days”—that is, the 1930s through the 1960s—but that was half a century ago. The police no longer use those techniques; even Bob Dylan would agree that times and things have changed.[21] Indeed, interrogation techniques like those were disappearing in the 1960s around the time of Miranda due to the increase in police professionalism that was being witnessed throughout the nation;[ 22] they certainly are gone today.[23] That fact is important. Insofar as Miranda required its warnings to be given to forestall police brutality, the elimination of those practices militates in favor of repealing the “prophylactic rules” that Miranda adopted.[24] Unless now-condemned and now-abandoned police practices are treated as a form of Original Sin that police officers can never shed, there is no good reason to shackle today’s police to yesterday’s miscreants.[25]
But there is a separate powerful reason to abandon Miranda: It seriously hampers effective law enforcement. As Professors Paul Cassell and Richard Fowles have shown, even after controlling for factors such as the crime rate, law enforcement expenditures, and the percentage of people in the “crime prone years” (i.e., teens through twenties), law enforcement’s ability to solve crimes declined sharply after Miranda “for the composite groupings of ‘violent’ and ‘property’ crimes, as well as for the individual crime categories of robbery, vehicle theft, larceny, and (in most models) burglary.”[26] Only murder, rape, and assault did not show significant clearance rate reductions due to Miranda, and the explanation for that difference may be that the police reassigned additional officers to investigate those more serious crimes.[27] There is also an obvious risk that describing percentage declines in case clearance rates tends to “underplay the human tragedies involved.”[28]
As Professor Gerald Caplan has concluded, the statistical studies “reduce crime to something remote and abstract, a string of numbers, an event that one reads about in the newspapers, something that happens in another part of town. There is no hint of rape as a nightmare come alive, or robbery as a ruinous matter.” Moreover, we have not discussed the inequitable distribution of the social consequences of these unsolved crimes. It is likely that these costs fell most heavily on those in the worst position to bear them, including racial minorities and the poor.[29]
The result is that the predictions offered by law enforcement and the dissenting Justices in Miranda in 1966 have been realized:
Justice Harlan’s dissenting opinion warned that the decision was a hazardous experiment with the country’s safety, with “harmful consequences” that “only time can tell.” The experiment’s results are now in. The clearance rate data collected in this study—coupled with the other evidence concerning Miranda’s effect—strongly suggest that Miranda has seriously harmed society by hampering the ability of the police to solve crimes. Indeed, based on national crime clearance rates, a rough and conservative measure of its impact, Miranda may be the single most damaging blow inflicted on the nation’s ability to fight crime in the last half century. In short, it appears that Miranda has, as its critics charge, handcuffed the cops. It is time to consider removing those shackles and regulating police interrogation in less costly ways.[30]
The Current Status of Miranda
No summer and no Supreme Court last forever. The Warren Court gave way to the Burger Court, which in turn was replaced by the Rehnquist Court and now the Roberts Court. None was or has been inclined to expand the reach of Miranda. With one exception,[31] the Burger, Rehnquist, and Roberts Courts have generally treated Miranda like a statute by reading its terms quite literally[32] or like a common-law ruling by reasonably defining its reach[33] or (what is perhaps the same point, just said differently) creating reasonable exceptions to its requirements.[34] Neither the Burger Court nor the Rehnquist Court, however, was willing to overrule Miranda. To date, the Roberts Court also has shown no such readiness.
If the Rehnquist Court had had any hankering to abandon Miranda, it would have taken the opportunity in Dickerson v. United States.[35] Dickerson raised the question whether, in the Omnibus Crime Control and Safe Streets Act of 1968,[36] Congress had repealed the need for Miranda warnings or created an adequate substitute by directing federal district courts to exclude involuntary confessions. The case presented a perfect opportunity to revisit Miranda: “Miranda was the paradigmatic example of the Warren Court acting like a legislature, and the Omnibus Crime Control and Safe Streets Act was an archetypical instance of a legislature acting like a court. The symmetry was poetic; the Supreme Court, unreceptive.”[37] Miranda survived Congress’s attempt to overrule that decision by statute, and the Court refused to overrule Miranda itself: “With a nod in the direction of Dirty Harry movies and TV cop shows, the Court also refused to rescript police interrogation practices: ‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.’”[38] After teetering on the edge of being overruled for 30-plus years, Miranda survived by a 7–2 vote—in an opinion written by Chief Justice William Rehnquist, no less (“Et tu, Brute?”). It is still the law today.
Conclusion
Miranda v. Arizona was a highly controversial decision in 1966 and remains so 50 years later. Congress tried to “overrule” Miranda by enacting the Omnibus Crime Control and Safe Streets Act of 1968, but the Supreme Court rebuffed Congress’s attempt to play Super Supreme Court. It is possible that the Court someday will reconsider Miranda. After all, it has expressly or implicitly upheld the constitutionality of the death penalty for the past 40 years,[39] but that has not deterred litigants from attempting to persuade the Court to change its mind or some Justices from expressing their willingness to reconsider the issue.[40]
The bottom line is this: Miranda is still “good law” today, but there’s always tomorrow.
—Paul J. Larkin, Jr. is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
