Reflections on Miranda’s Fiftieth Anniversary

By James G. Thomas

On June 13, the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), turns fifty. Miranda has been described as the “centerpiece of the Warren Court’s revolution in American criminal procedure.” In relatively recent memory, the Court itself has characterized Miranda as “part of our national culture.”Dickerson v. United States, 530 U.S. 428, 443 (2000) (Rehnquist, C.J.).

However, serious legal scholars have pronounced its demise as a meaningful protection against coercive law enforcement interrogation techniques, which were its chief concern. Charles D. Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1519, 1524 (2008) (concluding, based upon author’s extensive review of police training materials, social science literature, and post-Miranda court decisions, “that little is left of Miranda’s vaunted safeguards and what is left is not worth retaining”).

Regardless of whether Professor Weisselberg’s harsh assessment is correct, it is difficult from the remove of fifty years to fully appreciate the “shock and awe” that Miranda’s release generated in its day. But whatever else might be said about the case, no serious contemporary observer would suggest with a straight face that it has significantly impeded the workings of the criminal justice system. As Professor Weisselberg’s article illustrates, there are a number of ways that law enforcement officers can (quite legally) “work around” Miranda, and even when the full-blown warnings are administered, a surprisingly large number of criminal defendants will waive their rights (up to and including signing written waivers).Multiple studies have concluded with surprising consistency that the figure is upwards of 80%.

Against this backdrop, I thought it would be an interesting fiftieth anniversary exercise to look back and see how the four dissenting Justices in Miranda viewed the likely consequences of their colleagues’ majority decision. The four dissenters were (in descending order of seniority) Justices Clark, Harlan, Stewart, and White. As we shall see, it is fair to say that they had deep fears about the potential impact of the majority’s decision, fears that, for better or worse, fifty years of experience have not borne out.

As a frame of reference, the starting point for this discussion must be Chief Justice Warren’s majority opinion, which was joined by Justices Black, Douglas, Brennan, and Fortas.(Somewhat ironically, in hindsight, the then-future Justice Thurgood Marshall argued for the government as Solicitor General in one of the three cases that was consolidated with the namesake Arizona case.)

While the majority opinion goes on at some length, its essential holding was succinctly stated. Prior to any “custodial interrogation” (a term of art that has generated its own cottage industry of case law), “the person [being questioned] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. “Failure to observe these “procedural safeguards” in custodial interrogation would preclude the prosecution’s use of any statements obtained in their absence (i.e., suppression). 384 U.S. at 444; see also id. at 479 (clarifying that an attorney will be appointed before any questioning if the suspect cannot afford one).The Court rooted its holding in the Fifth Amendment privilege against self-incrimination. Id. at 439.

Justice Clark wrote only for himself in dissent. Justice Harlan wrote a separate dissent joined by Stewart and White, while Justice White authored an opinion that Harlan and Stewart joined. While the three dissenting opinions all challenged the constitutional underpinnings of the majority’s holding (Justice Harlan’s probably to the greatest effect), they also all expressed genuine alarm at what they feared would be the real-world consequences of the new regime in criminal procedure that the majority had ushered in.

Referring to the exclusion of otherwise admissible statements by an accused (as a result of the Court’s holding), Justice Clark, in his brief opinion, chose an incongruous medical metaphor to warn that “[s]uch a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient.” Id. at 500.

Justice Harlan began his opinion with these two ominous sentences:” I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell.” Id. at 504. He went on to predict that “the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all.” Id. at 505. Justice Harlan would presumably be pleased to learn that his fears were misplaced.

In a curious turn to his opinion, Justice Harlan questioned the efficacy of the majority’s holding on the grounds that unscrupulous police officers who would lie about the use of “third-degree tactics and deny them in court” would just as well lie “skillfully” about “warnings and waivers.” Id. This seemingly frank acknowledgement by a highly-esteemed Supreme Court Justice that some police officers lie in court – in the form of an argument against the Miranda requirements – is eyebrow raising to say the least.

Under the heading “Policy Considerations,” Justice Harlan reiterated his view that the Court’s “new code” would “markedly decrease the number of confessions,” and that “[h]ow much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. “He intoned that the Court was “taking a real risk with society’s welfare in imposing its new regime on the country,” and that “[t]he social costs of crime are too great to call the new rules anything but a hazardous experimentation.” Id. at 517.

Justice Harlan’s ringing conclusion merits quotation in full:

Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion): “This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

Id. at 525-26.

Referring to the Court’s institutional role, Justice White observed that what the majority had done was “to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution,” in keeping with what the Court had historically done and would continue to do absent “some fundamental change in the constitutional distribution of government powers. “He questioned, however, “the advisability of its end product in terms of the long-range interest of the country.”Id. at 531.(Note especially the frank acknowledgement that the Court does, in fact, make public policy, which would be off limits under the “umpire calling balls and strikes” metaphor that is seemingly obligatory today.)

In Justice White’s view, the majority had, “for all practical purposes,” forbidden interrogation “except in the presence of counsel.” Id. at 536. This, in turn, effectively meant the end of confessions as admissible evidence, as Justice White saw the matter. See id. at 537-38. He rejected what he viewed as the majority’s implicit premise that “the process of confessing is injurious to the accused,” commenting that “[t]o the contrary, it may provide psychological relief and enhance the prospects for rehabilitation.” Id. at 538. (Or, to paraphrase, “confession is good for the soul.”)

But that was not all. He went on to darkly predict that the majority’s opinion would reduce the incidence of guilty pleas and increase the number of trials, all the while enhancing the chances that a defendant who “otherwise would have been convicted” would now go free. Justice White further warned, even more specifically, that “[i]n some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” He went so far as to suggest that the net effect on law-abiding citizens would be to incite “violent self-help with guns, knives and the help of their neighbors similarly inclined” (i.e., vigilante justice). Id. at 541-42.

While Miranda has, from time to time, had the effect of returning the occasional murderer or rapist to the streets, Justice White’s “zombie nation” scenario did not unfold. Indeed, at this remove and in hindsight, it sounds almost unhinged.

In short, Miranda has not lived up (or down) to the dissenters’ dire predictions. The temple did not collapse, and Miranda remains a fixture on the American criminal procedure waterfront.

The Court’s 2000 decision in Dickerson v. United States, 530 U.S. 428, suggests that Miranda will remain such a fixture for the foreseeable future. In a 7-2 split, the Dickerson Court, with Chief Justice Rehnquist himself writing for the majority, rejected Congress’s long-dormant 1968 attempt to statutorily overrule Miranda in legislation codified as 18 U.S.C. § 3501.Over Justice Scalia’s vigorous dissent (joined by Justice Thomas), the majority squarely held that Miranda was “a constitutional decision of this Court” that could not be overruled by an act of Congress, nor would the Court overrule Miranda itself.Id. at 432.

In keeping with Professor Weisselberg’s partial reliance upon post-Miranda decisions for his conclusion that little was left of Miranda’s “vaunted safeguards,” the Chief Justice actually allowed as how the Court’s “subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement . . . .” Id. at 443. (One commentator has characterized this as Rehnquist’s “wonderful, almost self-congratulatory euphemism” for the Court’s post-Miranda case law. Stephen F. Smith, Activism as Restraint: Lessons from Criminal Procedure, 80 Tex. L. Rev. 1056, 1110-12 (2002).)

Concerning Chief Justice Rehnquist’s “self-congratulatory euphemism” about the Court’s post-Miranda case law, it bears emphasis that President Nixon made four Supreme Court appointments in his first term after his 1968 election: Warren Burger, Harry Blackmun, Lewis Powell, Jr., and William Rehnquist (thereby replacing three members of the Miranda majority). In the words of a leading treatise, Justices Burger and Rehnquist in particular “played a prominent role in downsizing and dismantling” (but not outright overruling) Miranda. Yale Kamisar, et al., Modern Criminal Procedure 590 (13th ed. 2012).

In speculating about Miranda’s continued existence (despite its partial “downsizing and dismantling”), it also bears noting that the Court has taken up a number of Miranda-related “merits cases” since Dickerson. See Yarborough v. Alvarado, 541 U.S. 652 (2004); Missouri v. Seibert, 542 U.S. 600 (2004); United States v. Patane, 542 U.S. 630 (2004); Florida v. Powell, 559 U.S. 50 (2010); Maryland v. Shatzer, 559 U.S. 98 (2010); Berghuis v. Thompkins, 560 U.S. 370 (2010); J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011); Howes v. Fields, 132 S. Ct. 1181 (2012). In two of these eight cases (Missouri v. Seibert and J.D.B. v. North Carolina), the criminal defendant even prevailed. And in J.D.B., a 5-4 majority actually expanded Miranda’s reach by holding that a juvenile’s age, if known or objectively apparent to a “reasonable officer,” is relevant to the analysis of whether the defendant was “in custody” for purposes of triggering the Miranda requirements.

In the wake of Dickerson, a noted student of confessions and Miranda law summed up the situation as follows: “Once feared to be the equivalent of sand in the machinery of criminal justice, Miranda has now become a standard part of the machine.” Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 975, 1027 (2001). His point is probably well taken. Miranda lives on (though far from robustly as its dissenters had feared).

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