Following are remarks from a panel discussion sponsored by the Criminal
Law & Procedure Practice Group, which was part of the 1999 National
Lawyers Convention. The convention took place November 11 _13, 1999,
in Washington, D.C.
MR. BERENSON (Moderator): The
issue we are going to talk about this afternoon, "The Future
of Miranda and the Exclusionary Rule" is at once very old and
very new. It is very old because, at least, since Mapp v. Ohio and
certainly after Miranda itself in 1968, there has been a perennial
debate in the legal community at least over the advisability of
some of these rules and of exclusionary rules in general.
Generally, the effort has been to try to find some way to reconcile
the desire to convict the guilty upon competent evidence with a
countervailing concern for finding some meaningful way to punish
misconduct by law enforcement, that can in fact be very serious
and detrimental to citizens' rights.
That debate has not been resolved, but a large step forward in
discussing it appears to be in the offing, and that is why this
subject is very new. This is the Dickerson case, arising out of
the Fourth Circuit, which I suspect is going to consume most of
our energy and attention this afternoon.
For those of you who are not familiar with it, the Fourth Circuit
in the context of a criminal case reached out to decide an issue
which Justice Scalia had flagged in a dissent from denial of certiorari
a number of years ago, concerning the applicability of a statute
Section 3501 that Congress passed in the immediate
aftermath of the Miranda decision. That statute purports to establish
a voluntariness standard for the admission of confessions. The question
thus arises is there really any legal warrant for excluding voluntary
confessions that were nonetheless taken in violation of Miranda
Some pioneering academic work in that area was done by Professor
Paul Cassell, who is on the Executive Committee of the Criminal
Law Practice Group. The Fourth Circuit appointed Professor Cassell
to argue the case before them. He prevailed on Section 3501 and
a hellacious fight ensued within the Justice Department that prompted
the Department of Justice to seek two extensions from the Supreme
Court on the deadline for filing their views on certiorari. Those
views were recently filed. They have urged the Court to grant certiorari
and have come down on the side of Miranda and against Section 3501.
Janet Reno herself signed the brief. That provoked some serious
dissent within the Justice Department and our first speaker this
afternoon, Bill Otis, is one of the most notable dissenters.
After several years in the Criminal Division of the Department
of Justice, in 1981 he went to work for the U.S. Attorney's Office
for the Eastern District of Virginia as its Chief of Appeals. In
1989, Attorney General Thornburgh designated him as Senior Litigation
Counsel for that office and three years later he went to the White
House to serve as Special Counsel to President Bush. After the '92
election he returned to the U.S. Attorney's office, and over the
course of his career there he has argued more than 100 cases in
the Fourth Circuit. Bill was originally the Government's attorney
in the Court of Appeals in the Dickerson case. When the Solicitor
General refused to authorize him to make an argument under Section
3501, in response to the Fourth Circuit's initial inquiry, Bill
declined to present the case at oral argument and sat on the sidelines.
After Professor Cassell won that case and the real fight ensued
on rehearing en banc, the Department decided to actually join the
defendant, the armed robber in that case, and the National Association
of Criminal Defense Lawyers in seeking a rehearing. This time the
Department affirmatively renounced the statute as unconstitutional,
and at that point Mr. Otis resigned from the Department of Justice
after a 24-year career there.
Our second speaker is Tim Lynch. Tim is the Director of the Cato
Institute's Project on Criminal Justice. In that role he is an outspoken
critic of hate crimes, gun control, and the drug war. He is currently
preparing a paper on the Waco incident and how accountability in
both federal and state law enforcement might be improved. Tim's
articles and views on constitutional issues have appeared in the
New York Times, the Wall Street Journal, the ABA Journal, NPR, ABC
"World News Tonight" and many other publications and broadcasts.
Mr. Lynch received his law degree from the Marquette University
School of Law and is a member of the Wisconsin and D.C. bars.
Following him will be Professor Mike O'Neill from George Mason
University School of Law. Prior to moving into academia, Professor
O'Neill served as General Counsel to the United States Senate Committee
on the Judiciary. He has served as a Special Assistant U.S. Attorney
in the U.S. Attorney's Office for the District of Columbia and as
an appellate litigator in the Department of Justice's Criminal Appellate
section. He graduated from B.Y.U. and received his law degree from
Yale. After graduating from Yale, he served as a law clerk on the
D.C. Circuit for Judge Sentelle and the Supreme Court for Justice
Thomas. He has recently been nominated to serve on the U.S. Sentencing
Our final speaker is Professor Vivian Berger. She is the Nash Professor
of Law at Columbia University. Her scholarship, teaching and practice
have been mainly in the areas of criminal law and procedure. She
has worked as Assistant Counsel on the Capital Punishment Project
at the NAACP Legal Defense and Educational Fund and as an Assistant
District Attorney in New York from 1977 to 1982. During part of
her tenure as an ADA, she served as Deputy Chief of Appeals. She
also clerked for Judge Wilford Feinberg. Her professional credentials
and activities include service on a number of boards including those
of the ACLU, the Southern Center for Human Rights, the California
Appellate Advocacy Institute, the Bridge, Inc., and, formerly, the
First Department Assigned Counsel Corp. She is a member of the American
Law Institute, the New York Unified Court System Advisory Commission
and other professional committees. She also has a burgeoning specialty
and practice in the field of mediation.
MR. OTIS: The question with
which the Supreme Court is likely to find itself confronted if it
grants cert in this case, as most people including me think it will,
is whether Miranda or Section 3501 is the law governing the admissibility
of confessions in Federal Court.I want to start with two observations.
The first is that under our system of Government, Congress and the
Executive Branch are the primary lawmakers in this country and not
the judicial system. Second, to which I would like to point your
attention is the statute itself. There has been a lot of talk in
the press and some talking heads on TV and even in the Department
of Justice's brief about the general issues involving this case
but not a whole lot that actually tells you what is in the statute.
So you may have some misconceptions about the statute and I would
like to alleviate what those may be.
While voluntary statements are to be admitted under the statute,
involuntarily given statements will remain inadmissible in all circumstances
just as they are now. In deciding in any given case whether a statement
was voluntary or involuntary the statute directs the judge to look
at a number of factors, and I'm going to tell you what those factors
are that the judge is going to have to consider in deciding whether
to admit the statement: the length of time the suspect has been
held in custody; whether the suspect has been advised of the subject
matter that he is going to be asked about; whether the suspect has
the assistance of a lawyer during questioning; and, most prominently,
whether the suspect has been given the warnings in the Miranda case
that he has the right to a lawyer if he wants one, that the
lawyer will be provided to him, that anything he says can be used
against him at trial. These warnings are repeated in the text of
the statute, although you wouldn't know it to listen just to what
the press and largely the Department of Justice has said about the
statute. No one factor is necessarily conclusive. The judge is enabled
to hear all of the evidence and decide for himself in each case
whether the statement is going to come in.
The question before the Supreme Court is not going to be or should
not be a plebiscite on whether the statute is a good idea or a bad
idea. The only question properly before the Supreme Court is whether
Congress had the authority to adopt this statute and to make it
the law in the face and some would say in the teeth
of the Miranda opinion, and that in turn depends on whether Miranda
implemented a constitutional requirement, specifically a requirement
of the Fifth Amendment, or whether it did not. The Court does not
sit to resolve policy disputes. Policy disputes, that is, whether
this statute is a good idea or a bad idea for one reason or another,
is something that is directed to the politically responsible branches
and not to the courts. Nonetheless, these policy disputes have arisen.
The first thing that you should remember about this statute is
that, just as is the case now under Miranda, involuntary statements
will be inadmissible for all purposes, so the idea that we are going
back to the rubber hose and the third degree under this statute
or that this is an invitation to the police to go retrograde is
just baloney. It's not true. A police officer who does that will
be doing it to no purpose because the statement is going to be out.
In other words, the remedy for a statement that actually is involuntary
under this statute is identical to the remedy provided by the Fifth
Amendment, and for that matter by Miranda. Second, what earthly
reason is there that a society that cares about its own security,
indeed its own survival, would turn its back on a suspect's voluntarily
given confession? We often hear in the context of other debates
that, for example, we have a greater proportion of our population
in prison than every country or that we exact the death penalty.
Is there any other country in the world, now or ever, that has rejected
a suspect's voluntarily given confession? I don't know of any. The
Department hasn't said there's any. There's no reason to be any
and there's no reason for our country to be the first. Third, this
statute continues to give the police a powerful incentive to give
the warnings just as they are given now. This is true not merely
because the statute repeats the warnings and because judges are
used to police officers testifying that they have given the warnings
and are going to be real suspicious of police who have interrogated
a suspect without giving the warnings. That is, that the warnings
fulfill the single most important driving force in human life, which
is self-interest. The policeman has a self-interest in making his
case, and he is going to make his case if he can get the statement
in. His chances of getting the statement in are markedly increased
if he gives the warnings, but it is not just self-interest, it is
also intertia the second most powerful force in human life.
The police are used to giving the warnings and the police, like
all other human beings, are likely to continue doing what they have
been doing up to now. Do you think these warnings are going to disappear?
What evidence is there that they are going to disappear? The Dickerson
case has been the law in the five states in the Fourth Circuit for
nine months now. There is not one shred of evidence that there has
been any increase in abusive police questioning of any kind.
The fourth policy consideration that I would like to bring to your
attention is this: What this statute does is to replace what is
quite certainly the incorrect if not positively blockheaded, irrebuttable
presumption of the Miranda case that all unwarned confessions must
be involuntary confessions. That is simply not true. The principal
reason that people talk to the police is they view it in their self-interest
to do so to say, "Well, yeah, I might have been in on
the bank robbery but I didn't bring the gun and I actually never
went into the bank. I was just driving the get-away car" or
that, "You know, I was I had had some marijuana that
day and I'd also been drinking quite a bit, so yeah, I was there
but I didn't really participate, and if I did, I didn't know what
I was doing."
People talk to the police to advance their own self-interest and
not because it is beaten out of them. That is not to say that it
is never ever beaten out of them. It is simply to say that that
happens quite infrequently and nowhere near as frequently as you
would need to justify a presumption, much less an irrebuttable presumption,
that an unwarned confession is an involuntary confession.
The fifth policy consideration that I would like you to think about
is this. What this statute really does is adopt a nuanced and refined
approach to the law of confessions rather than the absolutist approach
of Miranda. It preserves for us the best of Miranda, the civilizing
effect, on the police, while getting rid of the worst, and the worst
of Miranda. Although the Department of Justice won't tell you much
about it, it's not just that Miranda creates these warnings. Miranda
also creates this automatic rule of exclusion a one-size-fits-all
exclusionary rule under which an unwarned statement is not admitted
in court regardless of how powerful the evidence is that the police
acted fairly and that the suspect spoke voluntarily. Section 3501
changes that rule by allowing the judge to decide hear all
the facts and decide in each case whether the statement should come
in or not. What is the Department so afraid of that it wants to
deprive the judge of the opportunity to make that judgment?
Obviously, Congress cannot override a constitutional holding of
the Supreme Court, but equally obviously, Congress can override
what is merely something less than that, an interpretation that
is not grounded in a constitutional requirement. This is what the
Supreme Court itself has said repeatedly for at least the last 25
years, since Michigan v. Tucker, about the constitutional status
of Miranda and the Miranda rules, that it is a series of recommended
procedural safeguards that are "not themselves rights protected
by the Constitution and are not Constitutional in character."
The Supreme Court has also said, through Justice O'Connor that Miranda's
preventive medicine provides a remedy even to the defendant who
has suffered no identifiable Constitutional harm But if that weren't
enough, if 25 years of statements like that from the Supreme Court
were not enough, I'd ask you to look at the cases the Court decided
within that 25-year period Oregon v. Hass and Harris v. New
York. In each of those cases, the Court approved the admission into
evidence of an unwarned statement given in police custody. The holdings
of those cases are impossible to explain if the Court believed that
an unwarned statement was a statement taken in violation of the
Fifth Amendment, and accordingly, the Department of Justice's position
cannot be correct unless the Department is also willing to urge,
which apparently it isn't, the Supreme Court to overrule those cases.
The Department shouldn't be doing that. They haven't been doing
that, and at some point, they may have to confront in the Supreme
Court questions by one of those conservative loonies, you know,
about what are we going to do with our precedents if we adopt the
As the Constitution recognizes, we live in a society that the Constitution
helped create, a society in which confessions should not be beaten
out of people or otherwise coerced out of them. A society that beats
confessions out of suspects has lost its morals, but a society that
turns its back on a suspect's voluntarily given confession has lost
its marbles. We can keep our morals and our marbles by putting the
statute into action and if the Department of Justice won't do it,
I hope the Supreme Court will do it for them.
MR. LYNCH: Miranda and the
law of custodial interrogation is a subset of the law pertaining
to the right against self-incrimination. Because of this, let me
begin by making some general observations about the Fifth Amendment
and the right against self-incrimination.
The Fifth Amendment says that no person shall be compelled in any
criminal case to be a witness against himself. Like other provisions
in the Bill of Rights, this provision was designed to shield the
individual against the power of the State. Under our Constitutional
system, the burden of proving criminal activity rests with the Government.
The State must investigate its own case, find its own witnesses,
prove its own facts, and convince the jury with its own resources.
Throughout this entire process from the initial stages of an investigation,
through the prosecution and all the way through the trial, the accused
has the Constitutional right to remain silent. The basic idea is
that you should not be forced to assist the State in its effort
to convict you of a crime and to put you in jail.
But we need to distinguish between compelled associations with
State agents and voluntary interaction with State agents. It surprises
me how many laypeople think that the law obligates them to engage
in conversation or sit down with police officers. If an FBI agent
greets me on the street as I leave this hotel and says "I would
like to talk to you about certain matters," I can just say,
"No thanks, I'm busy." But if the FBI asks you for permission
to search your car, to search your home or to sit down with you
over a cup of coffee to discuss some case it is investigating and
you consent to that, you give agents your permission and go ahead,
well, you have to live with the consequences of that decision. In
this area of the law we must look for Government coercion. If there
is coercion, the judiciary ought to intervene to protect the Fifth
Amendment, whether by exercising the courts' power of judicial review
or by employing an exclusionary rule.
With this framework as my guide, let me say that I think the Supreme
Court has made a total mess of this area of the law. In my judgment,
the Supreme Court has diluted the right against self-incrimination
in some circumstances, but it has also expanded the Fifth Amendment,
unjustifiably in my view, in other circumstances.
Let me give you some examples of what I mean. California v. Byers
involved a so-called "hit and run" or "stop and report"
statute. Most states have them. The statute says that if you cause
property damage with your vehicle, you must stay on the scene and
notify the authorities. Jim Byers was prosecuted for violating that
statute and he, in turn, brought a Constitutional challenge against
the statute itself. His argument was that the law requires people
to incriminate themselves.
I think his claim made sense. After all, we do not have a law on
the books that requires shoplifters to stay right there and call
the police after they commit their crimes. However, the Supreme
Court upheld the Constitutionality of the statute. There were dissenters
in the case and I think that they had the better of the argument.
Consider another case, Braswell v. United States. This case will
be familiar to many white collar practitioners. Randy Braswell was
a businessman who was served with a subpoena by a grand jury. The
grand jury was seeking his business records. Mr. Braswell invoked
his Fifth Amendment privilege against self-incrimination. He was
put to the choice of either disobeying a subpoena or incriminating
himself by divulging records that might suggest wrongdoing to the
government. The prosecutors were seeking these records for no other
reason than to help them prosecute Mr. Braswell of a crime, so he
invoked the Fifth Amendment privilege. In an opinion by Chief Justice
Rehnquist, the Supreme Court rejected Mr. Braswell's Constitutional
claim and forced him to comply with the subpoena.
Again, despite the obvious compulsion involved, the Court forced
a suspect to turn over these records which prosecutors were anxious
to get a hold of for no other reason than to convict him of a crime.
These two cases Byers and Braswell are examples of
very narrow readings of the Fifth Amendment.
In contrast, Miranda is a classic example of overreaching by the
Supreme Court. The key contention of Miranda is that the Fifth Amendment
is necessarily violated if the famous warnings are not given to
the suspect. This contention has never been very persuasive to me.
You can have a perfectly voluntary statement without Miranda warnings
and such statement ought to be admissible in court.
Justice White made this point in his dissent in the Miranda case
30 years ago. White said what if police officers just sit down with
a suspect and ask him without any warnings, "Did you kill your
wife?" Or what if they put some evidence in front of him and
say "How do you explain this?" If an incriminating statement
results, there is no compulsion involved. Such statements ought
to be admissible in court.
Accordingly, I think that the Fourth Circuit's Dickerson opinion
was essentially correct. I don't agree with everything in it, but
I think it was essentially correct and Section 3501 is constitutional.
Let me close with what I consider to be a provocative hypothetical.
What happens if Congress decides to amend Section 3501? What if
Congress says that all confessions, voluntary and involuntary, shall
be admissible in court?
I expect that my answer to this question will be different from
the answers of Bill Otis and Michael O'Neill. I expect that they
might say that such a hypothetical statute may be unwise, but that
is a policy decision for the legislature. I disagree. I think such
a statute would run afoul of the Fifth Amendment and would require
the courts to intercede, whether by exercising judicial review and
invalidating the statute, or in the circumstances of a particular
case, exercising an exclusionary rule.
PROFESSOR O'NEILL: I think
that there's two important things to remember with respect to Miranda
itself and with respect to the prophylactic rules we know as the
First there was the Constitutional issue that is, are the
Miranda warnings themselves compelled by the Fifth Amendment? There
is a second albeit related issue, but the two issues should not
be conflated that is, whether the Miranda warnings are in
fact a good policy notion. What may be a good public policy or a
good article of faith may not be something compelled or required
by the Constitution. It is important to keep those two issues separate.
The Supreme Court, unfortunately, has not kept them separate. I
would like to go back a moment to Miranda itself. Most people just
assume that the statute repeals Miranda. In fact, I would submit
that it actually codifies Miranda, in that the warnings certainly
are one of the touchstones that any reviewing court has to consider
at when determining whether a confession is voluntarily obtained.
Similarly, I think Miranda has become such an important part of
our pop culture and our legal culture and part of our political
dialogue that people fail to actually go back and read the Miranda
decision itself. If one reads Miranda, one finds in the language
of the Court invitation to Congress, and an invitation to the States,
to look at other means whereby voluntary confessions might be obtained
and violations of the Fifth Amendment might be thwarted.
It is interesting in fact to compare the Miranda case and to compare
the Miranda warnings to what happened in the context of the Fourth
Amendment and the exclusionary rule. For those of you who recall
your Criminal Procedure classes, you probably remember that back
in 1914 in Weeks the Supreme Court doesn't create the exclusionary
rule as a remedy, but rather validates exclusion that had been done
in some of the lower Federal courts and some of the State courts.
Then along comes Wolf v. Colorado where the Supreme Court has the
opportunity to incorporate the Fourth Amendment against the States.
Interestingly enough, all nine of the Justices in Wolf agree that
the Fourth Amendment protection against unreasonable searches and
seizures should in fact be applied to the States. Where they disagree,
however, is on the remedy, and in fact a majority of the Court does
not believe (or did not believe at that time) that the remedy of
exclusion should be applied against the States.
Now we know that where there is a Constitutional right there must
also be a remedy in the event that Constitutional right is violated.
Ordinarily we look to courts as being the organs of government that
are particularly good at creating remedies, especially fashioning
remedies to address the Constitutional violation in the case that
is currently before them. We also look at Congress and other legislative
branches, the State legislatures also to create and to fashion broader
remedies to take into account public policy considerations.
In Weeks at least, and also in Wolf v. Colorado, the Court was
sensitive to that and the Court in fact said, look, we want the
states to develop something that is going to be protective of individuals'
Fourth Amendment rights, but it doesn't necessarily have to be exclusion.
Then what happens?
Good old Mapp v. Ohio. There, the Court, without looking at any
empirical evidence (and I am one that thinks the Court ought to
in these situations look to empirical evidence) simply decides
sua sponte to apply the remedy of exclusion to the States.
The interesting thing about Mapp v. Ohio is that, much like Dickerson,
in which the Government wasn't pressing the 3501 argument, the issue
of the exclusion of evidence was in fact never raised by the parties
nor was it briefed. That case was actually presented to the Court
as a First Amendment case. Similarly, section 3501 is not raised
by the Government in Dickerson but it's nevertheless argued. The
Court appoints Paul Cassell to argue this case before the Fourth
Circuit and it ultimately becomes the touchstone of the Fourth Circuit's
opinion in Dickerson.
Miranda and the Miranda warnings, unlike the exclusionary rule,
are not remedies for the violation of constitutional rights. The
Miranda warnings are simply a prophylactic device to ensure that
the rights never get violated in the first place. In part, the Supreme
Court recognized this distinction in Miranda, but it sort of glosses
over the fact that if this is only a prophylactic device because,
if this is not part and parcel to the Fifth Amendment, if this is
not a true remedy, then how does it get applied to the States?
Probably the most significant argument that I have heard for saying
Miranda has to be compelled by the Fifth Amendment is the argument
that there is no way the Court could have applied the Miranda warnings
to the States if they were not part of the Fifth Amendment. I think
that argument is wrong because the Court never really addressed
the issue of whether or not it had supervisory authority over the
states and whether Miranda was a remedy or commanded by the Fifth
Amendment. That gets completely glossed over.
Of course Miranda warnings obviously are not part of the Fifth
Amendment itself. No one is certainly making that sort of an argument.
But the other sort of subtle and I think somewhat interesting point
here is the fact that the Court in subsequent cases, as Bill has
pointed out, clearly by its decisions in allowing confessions taken
in violation of Miranda but that were otherwise voluntary and would
not otherwise be prohibited by the Fifth Amendment are nevertheless
allowed to be introduced as impeachment evidence, for example, or
to be used in cross examination. The argument is that if Miranda
were in fact part and parcel to the Fifth Amendment the evidence
could not be used in that fashion. I think the Court has been confused,
to say the least, or at least has given confusing opinions as to
whether or not the warnings provided in Miranda are part of the
But to me, at least, that is the only issue the Court should be
considering. The Court should not be considering whether Miranda
has symbolic value, because of course we recognize that Miranda
has symbolic value. I think it was in the late 1970s the American
Bar Association funded a study to find out what were what were the
most significant or most important cases in American criminal law,
and Miranda ranked number three. This wasn't among the general public.
It was only among the lawyers and legal professionals, academics,
and judges, and Miranda ranked number three.
Today I can turn on any cop show on TV or go to any movie and you
will hear the Miranda warnings being read to some poor hapless suspect
at some point. There is no question but that Miranda has an important
symbolic value. But the Supreme Court is not there to deal in symbolism.
It's there to deal in the facts of the case and what is commanded
by the Constitution.
It is also ofttimes argued that Miranda is actually sort of a good
rule in the sense that police officers think it is a good idea.
This, with respect to the policy issue, the policy of Miranda may
be correct. We may want as a society to have police officers reading
defendants their purported rights before they actually obtain a
confession. That may not be a bad policy. In fact, in many respects
I agree with that policy. I think, however, there are circumstances
in which you wouldn't want that necessarily to happen. There may
be limited circumstances, but the question is more fundamental.
It is whether or not that policy, that requirement that rights be
read, is of Constitutional dimension. I think it is not, and I think
the fact that Miranda may be a symbol and may be an important means
of safeguarding defendant's rights, is not sufficient to raise it
to Constitutional dimension.
Another thing I would like to address just briefly is the issue
of what happens when we abandon Miranda. I am not sure. You can
do sort of a head count making a determination as to whether there
are the votes in the Court to dispense with the absolute requirement
of Miranda or not. That is something you can sort of get involved
with, but I think ultimately if Miranda is abandoned, aside from
the parade of horribles that many people have presented in saying
that the criminal justice system as we know it will not survive
if Miranda is overruled or if Miranda is set aside, I think it is
interesting to remember a couple of things.
First is that 3501 itself incorporates the Miranda warnings to
make sure, at least as a touchstone of voluntariness, to determine
whether or not a confession has been voluntarily obtained, Miranda
is one of the issues the reviewing court is supposed to look to.
Second, once an officer had the defendant's name written on the
Miranda waiver-of-rights card that pretty much ended the inquiry.
Nobody worried about whether or not the cops were wearing their
uniforms or if guns were drawn necessarily. The whole issue came
down to whether the suspect's name and signature on the Miranda
card was actually the suspect's. If it was, "too bad, so sad,"
that confession is going to come in.
Perversely, I think one of the things that will happen is that
it will force courts, district courts and magistrates, into a position
of conducting a thorough and searching review to determine whether
or not the confession has been voluntarily obtained. That may actually
accrue to the benefit of the criminal defendant. That might be a
positive benefit to the criminal defendant in at least those circumstances
because now so often the suppression hearing itself is quite perfunctory.
But I think that the world is probably not going to change that
much. Police officers have become very comfortable with Miranda.
The Miranda warnings themselves were actually taken from that champion
of civil liberties, J. Edgar Hoover and Hoover's FBI. The FBI was
using Miranda-type warnings actually in advance of Miranda and the
Court at least borrowed some of the language of the FBI warnings
that Federal agents were using. It is an easy bright line for them
to follow. Courts have become comfortable with it. I think, however,
that if Miranda is set aside we will be in a situation not where
courts are suddenly trampling all over the rights of criminal defendants,
but they will still be looking and are commanded to look to by 3501
as to whether or not Miranda warnings have been given. But instead
of being the only evidence the court will look to, that will be
one of a number of factors the court will have to consider in determining
whether or not the confession has been voluntarily obtained. I think
that is a healthy thing for the system. That is a positive benefit,
not only for the defendant but certainly for police officers and
for society at large.
Finally, it is going to be interesting because 3501 only applies
to the federal government, so what will happen with respect to the
states if the Miranda warnings are set aside? Well, states will
have to make sure that they have 3501 analogs, to ensure that they
have systems in place that are going to be protective of the criminal
defendant's rights. I think that is a good thing. I think that over
time we can answer the Court's initial question in Miranda and determine
empirically whether or not there are other systems that are just
as protective or I would argue perhaps more protective of a criminal
defendant's rights. I think that allows the states to be the socalled
laboratories of experimentation that we often ask them to be.
In closing , I would just say that it is important not to conflate
these two Constitutional and policy ideas for Miranda. It is important
to look to see what the actual effect Miranda has had in terms of
being a prophylactic device in protecting criminal defendants' rights.
I think we can learn a lot from what the Court did in Weeks and
in the Fourth Amendment context and some sort of analogy from that
line of cases and from those theories, but in any event I think
it is going to be a very interesting debate. I think we stand at
an important moment for criminal procedure in this country, because
if Miranda is set aside it will certainly be one of the most significant
criminal procedure decisions issued in the last 20 or 30 years.
PROFESSOR BURGER: Let me
frame my reaction to the Miranda debate by making two general and,
I think, related comments. One, claims about Miranda's terrible
effects on law enforcement are more than just wrong. Such claims
focus debate on a convenient but irrelevant scapegoat while diverting
attention from problems that really matter. and that is a response
to the absent Professor Cassell, but even in his absence he is very
much with us, particularly as the architect of Dickerson. Second,
The war on Miranda is more about refighting a battle of the '60s
than it is about today's law enforcement needs.
The first comment came from Professor Steven J. Shulhoffer, Miranda's
chief academic defender. The second, unpublished, was made by my
colleague, Professor Gerard E. Lynch, who is a Columbia Law School
Professor but who also served as head of the Criminal Division in
the Office of the United States Attorney for the Southern District
of New York.
If I were to add my own sound bite along these lines, I think I
would entitle today's remarks, "Much ado about not that much."
On a pragmatic level, and again responding to the absent Professor
Cassell, whose work has certainly been much ballyhooed, I would
like to say that his empirical work on Miranda's effects in fact
provides a rickety foundation for his thesis that this decision
has led to a substantial loss of confessions and, consequently,
significant declines in clearance rates and convictions for serious
crimes. It would take much more than my allotted time even to begin
to lay out Professor Cassell's analyses and his critics' refutations,
and his rejoinders and their rebuttals and so on back and forth.
Because so many of Miranda's most ardent opponents do rely so heavily
on Professor Cassell, you should know that his methodology and his
conclusions have been quite seriously impugned.
Moreover, his major challengers include not only such usual liberal
suspects as Professor Shulhoffer but also, for example, Professors
George Thomas and John J. Donohue, III, who hold no particular belief
for Miranda that I am aware of. Professor Thomas indeed was recently
quoted in the New York Times saying that he is, quote, "agnostic"
as to the wisdom of Miranda as a policy matter.
Our knowledge about how Miranda works in practice raises the question,
not why its detractors desire so fervently to overrule it, but rather
why its proponents care that it be retained. The vast majority of
warned suspects do waive their rights and agree to talk. In a 1996
study, Professor Richard A. Leo found that a mere 21.7 percent declined
to do so.
In another article published that same year, Professor Cassell
himself related that only 12.1 percent invoked their rights before
police were successful in interrogation. Perhaps unsurprisingly,
the police live comfortably with Miranda. In my five or six years
as a local prosecutor in Manhattan in the late '70s and early '80s
I cannot recall a single officer inveighing against it. Based on
my experience, cops at least in New York City are not shy about
voicing any complaints that they do have.
In addition, as Professor Yale Kamisar notes, "The opinion
has not, to put it mildly, been given an expansive reading."
I need not elaborate too much here. The Supreme Court has construed
key concepts like "custodial interrogation" quite narrowly.
It has never applied the socalled "fruits" doctrine to
exclude evidence arising from statements obtained in violation of
Miranda. It has announced important qualifications to the basic
rule, such as the public safety exception, the impeachment use of
non-compliant admissions, the stringent requirement of an unequivocal
assertion by the suspect of the counsel right, and more.
So what is this Miranda debate all about? In not insignificant
part, what Professor O'Neill has mentioned symbols. In the
'60s, when Congress enacted 3501 in order to repeal Miranda, (and
however 3501 is certainly being discussed in these elite circles,
certainly it was enacted to repeal Miranda). The opponents view
this decision as emblematic of all that was wrong with the activism
of the Warren Court probably most of you agree with that
position even after the dragon has died, the dragon must
still be slain, forsooth.
On the other hand, the supporters of Miranda, among whom I include
myself, although not with the passion I see expended by others on
this issue, regard the decision as symbolic in a different sense.
As Professor Shulhoffer once put it: "Procedure matters."
Miranda is one of those criminal procedural guarantees that, "underscore
our societal commitment to restraint in an area in which emotions
easily run uncontrolled." But Miranda is hardly the sole nor
the most primary such protection. I don't think the fate of the
Republic rests on its back, but at a time when law and order continues
to be the rallying cry for politicians of every stripe, and even
Article III judges look over their shoulders lest they be excoriated
or even impeached for issuing rulings coddling criminals, I tend
to see Miranda as a fairly positive symbol. More broadly, symbols
aside, I believe the arguments for it outweigh those proffered against
it, and after the 30plus years of Miranda, the burden of proof rests
on those who would overrule it, and they haven't met it.
I have already mentioned the lack of persuasive empirical proof
that Miranda harms law enforcement. While this has not been a particular
theme among the sophisticated discussions this afternoon, that is
certainly an argument made in other circles. To the contrary, Miranda
in some ways helps police and prosecutors as well as courts overseeing
motions to suppress statements insofar as it furnishes a bright
line rule for questioners who wish to obtain admissible confessions.
Now while even the brightest of lines can be a bit blurry around
the edges, Miranda I think gives infinitely better guidance than
the traditional congressionally revived totality of the circumstances,
voluntariness test. Notably past and present officials at the highest
tier of law enforcement have endorsed keeping Miranda for
example, FBI Director Louis Freeh. We heard about the prominence
of these warnings from Director Hoover, former New York City Police
Commissioner William Bratton, former Solicitor General Charles Fried,
to name just a few nonbleeding hearts that occur to my mind.
Many such supporters believe, as I do, that Miranda has enhanced
police professionalism. What practical message then would abandoning
Miranda at this late stage send to the average cop in the precinct,
not to speak of the public at large weaned on these warnings by
television and movies and so forth, the whole popular culture?
Well, at worst, doing so would suggest that the gloves are off,
and I don't mean by that necessarily the hose and the truncheon.
There are many other ways of compelling confessions, and doing so
would reinforce the view that rights are luxuries that we can't
afford to waste on criminals. At best, some police and prosecutors,
conceivably some states, might continue to give the warnings or
some sort of warnings or the warnings in some form, in whole or
in part. This raises the point that perhaps making Miranda a local
option will cause more confusion and uncertainty than Miranda itself
did in the first place.
Well, what of Section 3501, to which the other speakers have mainly
devoted their time? I haven't chosen to devote so much of my time
to this topic, yet plainly should the statute override Miranda we
can argue about the decisions, virtues and vices till kingdom come.
It won't matter at least on the Federal side if Congress has legitimately
struck the balance itself.
For now suffice it to say I believe along with Professor O'Neill
that the constitutional status of Miranda is an open question. Intellectual
honesty demands recognition that the Court has sent mixed signals
on the issue for a number of years. While I certainly don't buy
what I consider the superinflated rhetoric of Judge Williams in
Dickerson neither do I think the argument the other way is
obvious. So it is conceivable that the Court ultimately will hold
that Miranda is not mandatory constitutional law, although I would
predict it will not do that. To say that is not however to conclude
automatically that Section 3501 passes muster.
If the warning and waiver regime, or in the words of Chief Justice
Warren "something fully as effective" that comes
from the Miranda decision itself is not constitutionally
required, then unless we have been in a totally lawless regime all
these years, then Miranda likely amounts to constitutional common
law as explicated best perhaps by my colleague Professor Henry Monaghan.
On this hypothesis in order for Congress to dispense with Miranda
it must provide at the very least an adequate substitute for the
problem seen by the Court that generated the Miranda decision.
Notwithstanding the contrary claims of those who want to thrust
Dickerson upon the Court, and since the Solicitor General has joined
in, it looks that Dickerson will go before the Court, I think that
Section 3501 plainly falls short in this regard. Dress it up as
you will, the new new old, bad old voluntariness test simply
overturns Miranda. I have heard a lot of sort of advertisements
for it this afternoon, that just kind of sticks in Miranda. I think
that would be very interesting to those who labored to get it passed
in 1968. It clearly was meant to overturn Miranda. The old voluntariness
test was, of course, wholly indeterminate and didn't function well
at all. Certainly courts could and in latter days did look at such
factors as whether or not people had been warned of their rights
or had counsel, or all of these other Mirandarelated inquiries.
Interestingly, Professor Monaghan, in his big article on constitutional
common law, quotes Professor Robert Burt's description of 3501,
as "a gesture of defiance at a Court which protected criminals
and communists." Commenting on this, Professor Monaghan, whom
I can tell you firsthand is not another bleeding heart, agrees that
3501 did not reflect "a good faith dispute over the power of
Congress to shape a rule protective of the Fifth Amendment using
its own assessment of how subconstitutional policies should be compromised."
A different statute, for example, one commanding that interrogations,
not just the resulting confessions, but a whole interrogation be
videotaped, with possibly other sorts of protections as well, would
present the much closer question.
I will end now where I often do in presentations of this nature,
with the admittedly unpopular sentiment that a person sincerely
concerned with crime control, and I count myself as one I
was a prosecutor longer than I was a defense attorney. If such folks
would focus more of our resources, intellectually and monetary,
on finding ways to alleviate the conditions that foster crime, and
less on trying to curtail the rights of suspected criminals, we
would all be better off. If that suggestion places me squarely on
the midnight basketball court so be it.