|
by Gerald Walpin *
For almost 180 years before 1966, the rule concerning the admissibility
of a confession was simple under both the Common Law of England
and the Constitution of the United States: A confession was admissible
unless not voluntarily made. In this country, the Supreme Court,
near the end of the nineteenth Century, held that an involuntary
or coerced confession violated the Fifth Amendment right against
compelling any person to be a witness against himself.(1)
Then, in 1966, a 5 to 4 ruling by the Supreme Court, in Miranda
v. Arizona,(2) turned the confession admissibility rule on its head:
A confession by a suspect in a custodial setting, even though voluntarily
made, would be inadmissible unless, preceding the confession, the
suspect was given four boiler-plate warnings: (i) the right to remain
silent; (ii) any statement could be used against him; (iii) the
right to have an attorney present at any questioning; and (iv) the
right to have an attorney appointed if the suspect was without funds.
The Miranda Court did not even attempt to suggest that it had discovered
something in the Constitution which had made the 180 years of contrary
doctrine violative of the Constitution. To the contrary, the Court
read the Constitution as not requiring any "particular solution
for the inherent" problem of determining whether a confession
was voluntary. Instead of maintaining the 180 year old Constitutional
standard that voluntariness can only be determined on a case-by-case
analysis of the circumstances surrounding each confession, the Miranda
Court substituted these Justices' view as to preferred "procedural
safeguards"(3), elsewhere described in the same opinion as
a "straightjacket," albeit not constitutional.(4)
Within two years, Congress took action to reverse the Miranda revision
of the legal landscape. Taking heed of Justices Harlan's dissenting
opinion in Miranda that the "social costs of crime are too
great to call the new rules [enunciated in Miranda] anything but
a hazardous experimentation,"(5) Congress enacted 18 U.S.C.
§3501, which mandates a return to the 180 year old prior Constitutional
rule that a confession, if determined to be voluntarily given, is
admissible. Congress left no doubt that §3501's purpose was
to reverse the holding in Miranda. This statute provided that, while
the trial court, in deciding whether a confession is voluntary,
should take into account all circumstances surrounding the confession,
including whether Miranda-type warnings were given, the absence
of such warnings would not preclude admissibility of an otherwise
voluntary confession.
Congress' power to set aside the Miranda decision is clear. Absent
a Constitutional basis for a Supreme Court decision and,
as discussed above, Miranda is not Constitutionally based
Congress is the final arbiter of appropriate rules of evidence and
judicial procedure.(6)
Section 3501 thus became the law of this land. Our Second Circuit
Court of Appeals expressly recognized §3501's supremacy over
the Miranda procedures, in citing §3501 as providing that the
absence of Miranda warnings "need not be dispositive"
on determining voluntariness of a confession.(7) Our law enforcement
officials, including the Attorney-General are sworn to uphold and
enforce the law of the land. see U.S. Const. Art. II §3. Yet
for thirty years, in a classic example of Orwellian double-speak,
the Attorneys-General have proclaimed their allegiance to the rule
of law by refusing to enforce the validly enacted §3501.
This lawlessness would have continued to be the law of the land
had it not been for the intellectual honesty of two Fourth Circuit
Judges in the recent decision they rendered in United States v.
Dickerson.(8) The material facts were apparently undisputed: An
individual, using a silver semi-automatic handgun and carrying a
black leather bag, robbed a bank in Alexandria, Virginia. An eyewitness
saw the robber exit the bank and noted the license plate and type
and color of car into which the robber entered for his escape. Subsequent
FBI investigation determined that the car was registered to Dickerson.
Visited by FBI agents, Dickerson agreed to accompany them to the
FBI office where Dickerson initially denied any involvement in the
bank robbery but admitted to being in the area of the bank when
it was robbed. Subsequently, while Dickerson remained in the FBI
offices, the FBI obtained a search warrant and Dickerson was informed
that the agents were then about to search his residence. Shortly
thereafter, Dickerson volunteered a confession to involvement in
the robbery, and named his accomplice who, on being arrested, also
confessed. To put the icing on Dickerson's guilt, the search of
Dickerson's residence and car produced a silver semi-automatic handgun,
a black leather bag, ammunition, masks, and dye-stained money.
On defendants' motion to suppress his confession, the District
Court held that the confession was voluntarily given but suppressed
the confession because Dickerson was not furnished his Miranda warnings
until after he confessed. Subsequently, the District Court rejected
the Government's motion for reconsideration, citing §3501 as
mandating the admissibility of a voluntary confession without regard
to Miranda warnings.
On appeal, as the Court of Appeals stated in its opinion, the "United
States Department of Justice took the unusual step of actually prohibiting
the U.S. Attorney's office from briefing the issue" that §3501
had preempted Miranda, thereby "affirmatively imped[ing] its
enforcement."(9)
Faced with the Attorney-General's purposeful refusal to apply §3501
to the facts of that case, the Fourth Circuit accepted an amicus
brief and oral argument assertion that §3501 required reversal
of the suppression order, and held that §3501 superceded Miranda.
Absent the Court's allowance of an amicus to supplement the Government's
argument, §3501 would have been left languishing and impotent
on the legislative vine. Several attempts by Assistant U.S. Attorneys
to rely on §3501 were struck down by Attorney-General Reno
who went so far as to order withdrawal of a brief making that argument
which had been filed with an Appellate Court.(10) Because, obviously,
no defendant would argue §3501's supremacy, the Attorney-General's
direction prohibiting reliance on §3501 effectively rescinded
Congress' enactment.
The demise of Miranda, though long a-coming, puts reason and sanity
back in law enforcement. Miranda was, as expected, applauded by
criminals and defense counsel because it provided a previously-unavailable
immunity from conviction for an admittedly guilty defendant. But
average law abiding citizens, who naively thought that courts were
supposed to protect them from criminals, lost confidence in a system
which freed indisputably guilty criminals back into society to repeat
their crimes against other innocent persons.
Legal literature documents that "thousands of violent criminals
escape justice each year as a direct result of Miranda."(11)
This conclusion is exemplified by the Dickerson case itself. The
District Court, in ordering suppression of Dickerson's confession,
made probable the release back into society of a confessed bank
robber who had, in a series of bank robberies, brandished a semi-automatic
to succeed in his criminal endeavors. Sooner or later, Dickerson
would fire that pistol and an innocent member of society would be
killed because of Miranda.
No one has ever explained the practical logic of Miranda. It was
billed as a means of avoiding coerced confessions. But how and why?
Pre-Miranda, the court would hold an evidentiary hearing to determine
directly from the facts whether a confession was voluntary or coerced.
If the facts established that it was coerced, the confession was
suppressed. Defenders of Miranda argued that Miranda was needed
because policemen would lie and deny coercion. No doubt there are
some policemen as some in all other professions who
would lie, denying brutal or coercive conduct that resulted in a
confession. But the policeman who would engage in brutal conduct
to obtain a confession and then lie by denying that conduct would
not hesitate to testify falsely that he had timely furnished Miranda
warnings. Unfortunately, the converse was also true: The honest
policeman, who would not engage in brutal conduct to obtain a confession,
would not lie to claim giving Miranda warnings when they had not
been given, thus resulting in the freeing of a guilty defendant
because the policeman was honest. What is the benefit from a rule
that frees a guilty defendant who voluntarily confessed to a policeman
just because the defendant was not told that he did not have to
confess?
Yet, some people have defended Miranda as a bulwark against oppressive
law enforcement. Such simplistic sloganizing ignores reality. For
almost 180 years, our society, living under our very protective
Constitution, accepted confessions, if found to be voluntary, as
evidence. No one should question that, given human nature and that
rotten apples can be found even in the police barrel, some coerced
confessions were accepted through perjured police testimony as voluntary.
But that is no reason to throw out the baby due to a little dirty
water. Confessions particularly when they set forth details
that could be known only to the person guilty of committing the
crime provide reliable proof. As the Supreme Court itself
noted more than 70 years before Miranda, "the admissions or
confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence."(12)
The Miranda rule runs counter to law enforcement and societal needs.
Why should society entreat a defendant not to confess? Any defense
lawyer worth his/her salt would, at least at the time of arrest,
advise the defendant against confessing in order to provide time
to determine not whether the defendant is guilty, but to determine
whether the prosecutor has enough evidence to establish that guilt.
Society's interest is different it is to insulate society
from those who are guilty, not to tell criminals to remain silent
in order to see if that criminal can get away with the crime. Miranda
turned the policeman into defense counsel, warning suspects of the
benefits of remaining silent. The Fourth Circuit has had the good
sense and courage to describe Miranda as what it really is
a rule without any protective cloak for society, but one protecting
guilty criminals.
Attorney-General Reno's role in prevention of government attorneys
from telling the truth about Miranda casts great doubt on the professional,
as against political, dedication of that office.
It is an elementary axiom of the professional obligations of an
attorney that the attorney must "represent the client zealously
within the bounds of the law" (EC 7-8), and "resolve in
favor of the client doubts as to the bounds of the law" (EC
7-8), including by urging "any permissible construction of
the law favorable to the client" (EC 7-4). While the "responsibility
of a public prosecutor differs from that of the usual advocate,"
that difference enjoins the prosecutor "to seek justice"
(EC 7-13) both to the defendant and to society, not to work for
the injustice of freeing a guilty criminal by refusing to enforce
a law validly enacted by Congress.(13) A private lawyer who refuses
to press a legal basis in support of his client's case merely because
the lawyer personally disagrees with that legal basis would face
a malpractice action. The American people, whose Congress enacted
§3501 and who are the ultimate client of the Attorney-General,
are likewise entitled to demand that their attorney, the Attorney-General,
press all constructions of the law favorable to protecting the American
public including the validity of §3501, even though
she might personally disagree with the law.
* Gerald Walpin is a senior litigation partner at Rosenman &
Colin LLP in New York, and National Chairman of the Litigation Practice
Group of The Federalist Society.
- Bram v. United States, 168 U.S. 532 (1897).
- 384 U.S. 436 (1966).
- Id. at 444 and 478; see also id. at 490.
- Id. at 467.
- Id. at 517 (dissent).
- Palmero v. United States, 360 U.S. 343, 345-48,
353-355 (1959); Vance v. Terracas, 444 U.S. 252, 265 (1980).
- Deshawn v. Safir, 156 F.3d 340, 346 (2d Cir.
1998).
- No. 97-4750, 1999 WL 61200 (4th Cir. Feb.
8, 1999).
- Id. at *10.
- Id.
- Id. at *16, citing e.g., Cassell & Fowles,
Handcuffing The Cops? A Thirty-Year Perspective on Miranda's Harmful
Effects On Law Enforcement, 50 Stan. L. Rev. 1055 (1995).
- Brown v. Walker, 161 U.S. 591, 596-97 (1896).
- "Justice, though due to the accused, is
due to the accuser also." Snyder v. Massachusetts, 291 U.S.
97, 122 (1934)(Cardozo, J.).
|