Miranda rights

  • September 18, 2017
    Guest Post

    by Christina Beeler, ACS Student Board member

    President Donald Trump seemingly endorses police brutality of suspects. He said, “like when you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they’ve just killed somebody – don’t hit their head. I said, you can take the hand away, okay?” Although defenders insisted his remarks were made in jest, police departments all over the country rushed to condemn Trump’s remarks.

    Trump’s words brought up an old debate: should the protections of the Constitution extend only to those we deem worthy of empathy or is the Constitution there to protect even those who we may find abhorrent?

  • March 28, 2013

    by E. Sebastian Arduengo

    After more than a decade of watching procedural shows like CSI and their progeny, you might think that video recordings of custodial police interrogations are de rigueur in the law enforcement community. But, as it turns out, fewer than half of the states require law enforcement agencies to record custodial interrogations (questioning initiated by police officers after someone is taken into custody), and of those, four states record interrogations because the state supreme court ruled that not doing so violated the suspect’s rights. Right now, an additional seven states are actively considering whether to require recording of felony interrogation. Rightly or wrongly, the practice is hugely controversial in a number of police departments across the country, mostly because officers worry about whether being on camera will deter suspects from confessing or affect the rapport of an interview. But, until last year, there weren’t any comprehensive studies about the law and practices of recording interrogations nationwide.

    That changed with the release of Jenner & Block Partner Thomas P. Sullivan’s research. After nine years of research, Sullivan and his team at Jenner & Block published their results after having surveyed more than 1,000 police departments across the country, ranging in size from big-city departments with hundreds of officers to rural sheriffs’ departments with only a handful of officers. What they found was that without a shadow of a doubt, there was no good reason not to record custodial interrogations from the time a Miranda warning is given advising a suspect of his rights.

  • July 21, 2010

    Following a recent ACS event examining the state of the Miranda rule in the context of discussion within the administration of broadening an exception to when the rights are read to terrorism suspects, Michael German, public counsel for the American Civil Liberties Union (ACLU), talked with ACSblog about the importance of the Miranda rule. German, a former FBI special agent, said the Miranda rule, which was fashioned by the Supreme Court to protect an individual's Fifth Amendment right against self-incrimination, has served police practice well. German said Miranda protections should continue to be used, not watered down. His entire interview is below or it can be downloaded as a podcast here. Video of the entire event, "Miranda's Future," is available here.

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  • 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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  • June 2, 2010
    Yesterday's Supreme Court opinion further weakening Miranda protections highlights, what University of Maryland law school professor Sherrilyn Ifill says is a troubling aspect of the legal profession, which has come to be dominated by a prosecutorial mindset. Like other commentators, Ifill notes that the 5-4 opinion in Berghuis v. Thompkins "reflects our legal system's sharp tilt in favor of the prosecution."

    The slim majority concluded that it is not enough for criminal suspects to remain silent to invoke their right to remain silent; they must speak up to do so. Writing for the majority, Justice Anthony Kennedy said that suspects must tell interrogators that they want to remain silent before their rights are raised.

    "So 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," Ifill writes in a post for The Root.

    Unlike former Supreme Court Justice Thurgood Marshall, none of the current Supreme Court justices have experience defending criminal suspects. So, Ifill notes, it is "ironic that the strongly worded dissent comes from Justice Sotomayor - a career prosecutor." Yet Sotomayor's "hands-on experience with criminal prosecutions, fully on display in her real-world understanding of the pressures of interrogation in custody and the incentives of police that she articulates in her dissent, demonstrates the importance of having justices on the Supreme Court whose practical experience can inform the court's approach to criminal cases."

    But the decision reflects a troubling trend in the legal profession, Ifill concludes:

    The highest echelons of the legal profession have been dominated by former prosecutors. There are currently three former prosecutors serving on the Supreme Court (Sotomayor, Samuel Alito and Stephen Breyer). Justice Marshall is the last Supreme Court justice who devoted a large part of his practice to criminal defense work. Criminal defense attorneys are almost never included on Supreme Court shortlists, despite the fact that some of the most prominent and accomplished lawyers in the profession, like Bryan Stevenson, have devoted their lives to defense work.