Everyone who has seen a police-related television show or movie, or, for that matter, has been arrested and interrogated, has some familiarity with the Miranda warnings. Many fewer people, however, are aware of the history that led to them, the reasons that they are vital to preservation of the constitutional rights of those suspected of criminal activity, or of the constant battle waged by conservatives to demolish the requirement that they be given.
On December 7, the United States Supreme Court heard oral argument in Florida v. Powell, a case representing the latest efforts of those who dislike the Constitution to deprive those suspected of crime of its protections.
The Fifth Amendment to the United States Constitution provides, among other things, that "[n]o person...shall be compelled in any criminal case to be a witness against himself..." This proviso was written by men familiar with Europe's lengthy history of gaining confessions through the use of torture. They knew what modern day events continue to prove to us: coerced confessions are not only abhorrent to the human right not to be tortured, but they are also completely unreliable.
Coerced confessions may be immoral and unreliable, but they do make the jobs of police officers and prosecutors much easier. For this reason, the use of physical force to elicit inculpatory statements has continued to this day (despite the Supreme Court's decision in Brown v. Mississippi explicitly prohibiting the use of confessions gained through physical assault.) However, more insidiously, a large percentage of confessions are gained through police manipulation of powerless and frightened suspects. Police officers are expressly trained in these manipulative practices,which entail convincing the suspect that the evidence against him is overwhelming (this step often involves lying; for example, telling the suspect that his DNA has been found at a crime scene when it hasn't), and then giving him alternative theories of culpability which mitigate guilt. For example, a suspect will be told that all of the evidence proves that he is guilty of murder, but that maybe he killed the victim in self-defense. The purpose is to make the suspect feel that, whether guilty or not, he will be severely punished unless he agrees with the police version of events. These tactics are usually combined with veiled hints that confessing will be of some benefit to the arrestee. The police can't make direct promises or threats to gain a confession, but they can, and do, make statements intended to imply that the arrestee will be helped if he confesses or hurt if he doesn't. (For example: "If you tell me what I happened, I will let the judge know that you were cooperative. Do you want me to have to tell the judge that you weren't honest with us?")
The important thing to note about these practices is that they are not designed to elicit the suspect's version of events. Rather, their sole purpose is to force the suspect to confess by making him feel that he has no other choice, whether the confession is true or not. Interrogation using these techniques is thus not conducted for the purpose of gathering information to be used to solve a crime, but to develop evidence that can be used in court to convict a suspect. For this reason, they create a real risk of inducing false confessions. False confessions created by these methods, or by the old-school methods of physical force and unveiled threats, are responsible for a substantial percentage of wrongful convictions.
In Miranda v. Arizona, decided in 1966, the Supreme Court grappled with the issue of police coercion during interrogations and how to protect the right of a suspect not to be a witness against himself in the face of such law enforcement procedures. After reviewing the psychological tactics used in police interrogation, and the history of the right against self-incrimination, the Court held that no custodial statement made by a suspect could be used in court unless he was advised, before making the statement, that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to the presence of counsel during questioning, and that counsel would be appointed for him if he could not afford to hire an attorney. The Miranda court also stated that any indication by the arrestee that he did not want to answer questions, whether at the outset of interrogation or during the process, had to be honored.
This seemingly simple proposition, that a person should be advised of one of his most important constitutional rights before being asked to waive it, has resulted in the concurrent institutionalization of Miranda warnings in police departments across the nation, and feverish efforts to evade that proposition by any means necessary. These efforts have sometimes, although not always, been aided and abetted by the increasingly conservative judiciary. Thus, statements taken from an arrestee in deliberate defiance of the Miranda ruling can be used to impeach the arrestee should he testify (Harris v. New York) and a suspect is not deemed to have invoked his right to counsel unless he unambiguously requests a lawyer (Davis v. United States). However, the Supreme Court has ruled against such creative police efforts as taking a statement in violation of Miranda, advising the suspect of his rights, and then immediately taking the same statement again. (Missouri v. Seibert).
In Florida v. Powell, the Supreme Court is dealing with yet another attempt to evade the straight-forward requirements of Miranda. Tampa police officers decided to change the Miranda language, notifying arrestees that they had a right to consult a lawyer before questioning, and that they could use that right whenever they wanted to during questioning, but never specifically telling them that they had a right to have a lawyer present during questioning. The issue before the Court is whether this variation in the language of Miranda is a constitutional violation.
Failing to tell a suspect that he can have an attorney with him during questioning is a significant omission. It is an attorney's presence that can assure a suspect that his version will be fully and faithfully elicited, and not manipulated or misstated. It is also an attorney's presence that can keep the police from threatening or hurting a suspect. Clearly, the Tampa police recognized the importance of this right because it is obvious that they deliberately changed the wording of the Miranda advisement in the hopes that arrestees would in fact agree to be questioned without ever knowing that, in so doing, they were giving up their right to have an attorney present. As Justice Sotomayor asked:
"...[T]he police here could have chosen to be explicit, but instead they chose to be -- to obfuscate a little bit and be less explicit. Shouldn't we assume that that is an intent to deceive or perhaps to confuse?"
Of course she is correct. All of the erosions to Miranda protections, from not requiring express waivers before questioning can take place to allowing police to ignore any but the most explicit requests for counsel or that questioning cease, have arisen from law enforcement efforts to circumvent the protections the Fifth Amendment accords all of us. Evading or minimizing Miranda is the road taken by law enforcement personnel who are lazy or who care more about the immediate rewards gained from putatively solving a crime rather than about making sure that the right suspect has been arrested. Unfortunately, the result is increased likelihood of unreliable confessions and the destruction of those precious Constitutional rights for which so many have struggled, sacrificed, and even died.
Final observations:
- I (cautiously) think that the Court will hold the Tampa police's warnings inadequate, although it may be a close vote.
- Justice Scalia, not a huge Miranda fan, did display both his sense of humor and his grasp of reality during oral argument. The lawyer for Florida noted that, should the Court find the advisement to pass Federal constitutional muster, the Florida Supreme Court could still find it inadequate under Florida's state constitutional protection against self-incrimination. To which Scalia responded:
"Are the Florida Supreme Court elected? Are they elected judges?...[On being told that Florida judges are subject to retention elections] And they'd have to run for retention election on the ticket that "We've expanded Miranda for Florida purposes, right?"