First Among Equals & Miranda

Kenneth Starr on Miranda (after it had been upheld in Dickerson v. United States):

Krauthammer summed up the anomaly in his postmortem: "Scalia is right that Miranda 'is a milestone of judicial overreaching.' And yet Miranda, born illegitimate and living on illogic, has turned into one of the glories of American democracy." Why? Because despite its judicial illegitimacy, Miranda's existence says something powerful about the values of the country. "When people around the world go to the movies, they see a bad guy who has just murdered a nun, impaled a policeman and blown up a school, collared by Eastwood or Stallone or Tommy Lee Jones. What are the first words out of the good guy's mouth? 'You have the right to remain silent.' The viewer has to wonder what kind of political paradise America really is. People seeing this in Belgrade and Harare and Kuala Lumpur, places where the innocent get whacked and beaten and tortured at the whim of the authorities, can only be awestruck at a country that treats even its monsters with such delicacy."

The Court no doubt knew this: Everyone - the president, Congress, the states, and law-enforcement professionals - would have promptly rallied around the warnings. Few if any elected officials, much less law-enforcement officials, would have said, "We are now directing that all Miranda warning cards be appropriately dispensed with for recycling."

Of course, overruling Miranda would have been the best result. The appropriate roles of the three branches of government would have been preserved, yet the nation's commitment to safeguarding basic constitutional rights would have been vindicated. Under the most likely scenario, with Miranda overruled as a principle of constitutional law, representative institutions of government would have come to a particular view and practice as to what is right and fair in the administration of the criminal justice system. At the same time, if the police erred, then some other remedy would have been triggered rather than allowing dangerous felons like Ernesto Miranda to go free.

But the Court, dominated by the moderates and joined by the chief justice, was unwilling to change course. Stability and structural integrity, rather than fundamental principles, carried the day.

I wholeheartedly agree with the first paragraph. Miranda doesn’t really have any constitutional moorings; it is common law engaged in and defended under the rubric of constitutional interpretation. That said, it is a wonderful decision all around. Rather than set out a disastorous, amorphous standard like 4th Amendment “reasonable expectation of privacy” it sets out a bright line rule. Its effectiveness is evident if one goes to court and observes the number of times that searches under the 4th Amendment standard are challenged and the fewer confessions which are challenged after Miranda.

As the paragraph points out Miranda also derives from and feeds into the US myth. We have a strong belief that fairness is fundamental to our system, even for those targeted by the system. One might trace this to the ingrained teaching that “all men are created equal” or perhaps to Jacksonian Democracy or maybe the speech we all have heard throughout our lives stating that the government is “by the people, of the people, for the people.” I don’t know the exact source (none cited seem to fit exactly) but it is definitely a part of our ethos. Wherever it comes from the idea that our society requires police to tell those detained that they don’t have to talk and that the police will respect that silence is the living expression of the myth of fairness. Those in power are forced to play fair even with those who are the least in society.

However, the assertion that everyone would have rallied to save Miranda is somewhat pollyanna-ish. Without federal imposition of Miranda in Virginia it becomes dead letter law. The Legislature might even pass a statute requiring officers to give a similar warning but it would be relegated to the realm of a legislative suggestion. As I’ve pointed out before, the Virginia courts refuse to exclude evidence when they are not forced to by federal mandate. Those parts of the law or Virginia Constitution which promise rights not protected under the federal constitution are rights without remedies (RWR). You are just in tough luck if an officer purposefully violates a RWR but does not go so far as to violate the federal constitution.

But, you say, the legislators could add teeth to the statute and require evidence gained in contravention of it be excluded. And boy wouldn’t that next election be fun as their opponents pummeled them with how they were soft on crime because they had voted to keep evidence out which would convict murderers and rapists. No, our legislators don’t even have the guts to do a proper reform on our grand larceny statute; there’s no way they would put teeth into such a statute.

But, isn’t that the point? Shouldn’t we find a way to keep this evidence in rather than suppressing it? After all, if it’s being argued about in court it is because the evidence tends to show guilt. THERE IS NO PUNISHMENT WHICH CAN DRIVE POLICY LIKE EXCLUSION. Law enforcement agencies will develop policies and train to follow them if cases could be lost due to constitutional violations. Police officers interested in their career will strive to adhere to these polices.

Of course there are other proffered remedies but most of them are shams meant to try and give cover to courts which want to not exclude evidence. The person convicted of a crime could sue the officer over the unconstitutionally/illegally gained evidence (if he can get past sovereign immunity). Police investigatory boards could punish the officer who broke that unsolved homicide by reprimanding him for violating the constitution/law. Civilian investigatory boards could do the same thing - if they aren’t stacked with retired police or other law-and-order types. A convicted criminal could have his sentence reduced by a few years because the evidence was improperly obtained (serve 27 years instead of 30 - whoopie!).

This is not to say that there are not other possible remedies outside of exclusion which could potentially work. There is one in particular which you don’t hear bantered about much precisely because it has teeth much like exclusion. This would be allowing conviction but forbidding any punishment to rise from it (including show causes from prior convictions). If argument and the exclusion of punishment were done pretrial, this could be a strong deterent. If done in the sentencing hearing it has far less teeth than exclusion because of the prejudicial evidence which has entered through the trial. Judges are people too; if you shove enough disgusting photos in front of them or have victims on the stand crying they will become far more likely to stretch for a reason to get around the constitutional violation. This is why prosecutors in suppression hearings are always talking as specifically as they can about the 10 lbs of cocaine in the back seat and the sawed off shotgun under the driver’s seat - they want to make sure that the judge gives pause before he throws evidence out.

Back to the original point. Since Miranda is here to stay most of the above is conjecture (at least as to confessions). It is a decision which, although it has little basis in the constitution actual, carries out the American ideal. As such it is a keystone in our system of justice.