Miranda v. Arizona

  • 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.

  • June 1, 2010
    Among its five decisions issued today, was one adding to requirements surrounding the invocation of Miranda rights. The Court ruled 5-4 that suspects must tell police or interrogators that they want to remain silent in order to invoke the Miranda protections. In analysis for SCOTUSblog, Lyle Denniston said today's opinion, another interpretation of the Court's 1966 opinion in Miranda v. Arizona, "decisively tilted the warnings procedure toward the police."

    Denniston continued, "the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police - that is, to invoke a right to silence - he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect's continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess."

    The decision in Berghuis v. Thompkins arose from a Michigan case where the suspect Van Chester Thompkins remained mostly silent through a lengthy police interrogation before implicating himself in a murder. He appealed his case arguing that his statements should not have been admissible because he had invoked his right to remain silent, by largely doing so, The Associated Press reported.

    Writing for the majority, Justice Anthony Kennedy concluded that Thompkins did not properly raise his Miranda rights. "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

    Justice Sonia Sotomayor lodged a dissent blasting the majority for what she described as an inconsistent reading of precedent.

    "Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

    For more information on all of the Court's decisions see SCOTUSblog here.

    The high court also added a case to its forthcoming term. In Mayo Foundation v. United States, the Court will consider whether medical residents are students or employees for purposes of collecting Social Security taxes, The AP reports.

  • May 11, 2010

    "Proposals like Sen. Joe Lieberman's to take away a suspect's citizenship put the nation on a dangerous path," writes UC Irvine School of Law Founding Dean Erwin Chemerinsky (pictured) in the Los Angeles Times. Chemerinksy, a frequent ACS participant, took to the pages of the Times amid persistent critiques of the federal response to an attempted bombing in Times Square, including a proposal by Sen. Lieberman to strip terrorism suspects of citizenship.

    Chemerinsky writes:

    Those who commit terrorist acts can and should be severely punished; stripping them of their citizenship and failing to inform them of their right to remain silent serve no additional purpose.

    There is no reason to believe that advising terrorism suspects of their rights obstructs effective law enforcement. Take the case of Faisal Shahzad, accused of placing the car with explosives in Times Square. He spoke to authorities before being given his Miranda warnings, and continued to speak after. In fact, police have demonstrated over decades that they can function effectively even when suspects are advised of their rights. If there is a public safety emergency, current law permits questioning without Miranda warnings. Those determined not to speak will refuse to do so whether or not they have been informed of their rights.