Examining Miranda’s Future

July 14, 2010
In spring the Obama administration announced it would seek a new law allowing investigators to interrogate terrorism suspects without informing them of their Miranda rights. Then in July the Supreme Court ruled in Berghuis v. Thompkins that it is not sufficient for criminal suspects to remain silent to invoke the Miranda rule, which was developed to protect an individual's Fifth Amendment right against self-incrimination.

Instead the slim majority, led by Justice Anthony Kennedy said that criminal suspects must speak up and tell interrogators that they want to remain silent before their Miranda rights are invoked. Writing for The Root, University of Maryland law school professor Sherrilyn Ifill maintained that "police officers may now interrogate detainees for hours on end - no limit is suggested by the court - and so long as the detainee does not use the magic words that expressly indicates a refusal to answer questions or the desire for an attorney, any words uttered - no matter how few - may be used against him."

During a recent ACS panel discussion, constitutional law experts discussed Miranda's future in light of the recent court rulings, such as Berghuis, and the administration's announcement that it would seek a broad exception to the Miranda rule, established in the 1966 landmark ruling in Miranda v. Arizona.

Constitutional law expert and Georgetown University Law Center Professor David Cole noted that a "public safety exception" has already been created by the Supreme Court and that further carving out exceptions to the Miranda rule for waging war against terrorism, a nebulous term, would only further weaken constitutional rights for citizens and noncitizens. And broadening an exception to the Miranda rule, Cole added, would likely be unconstitutional.

It is not clear why Congress should be speaking to this matter, Cole (pictured) said. Miranda, he continued, is a judge-made rule driven by constitutional concerns. And the last time Congress "waded into" the realm by trying to re-write Miranda, the high court invalidated the action.

The panel also included Michael German, policy counsel for the ACLU and a former FBI special agent, and Benjamin Wittes, a senior fellow and research director at Brookings. Video of the panel discussion, "Miranda's Future," is below.

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