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(FindLaw) -- As rumors filter out of the U.S. Supreme Court that the justices are closely divided over whether they will overturn the controversial Miranda v. Arizona decision this term in Dickerson v. United States, it is striking how little the current debate takes into account the way lower court judges actually apply the Miranda rule.
Any practitioner who has watched how Miranda determinations play out during criminal trials knows that the doctrine is neither unloosing thousands of criminals onto our streets, nor protecting criminal defendants against the worst of police misconduct. In fact, in the 30-some years since Miranda was decided, our legal system has accommodated itself to Miranda, so as to make of the doctrine a surprisingly useful compromise between those extremes.
The three possibilities post-Miranda
My own experience with the Miranda doctrine began with a suppression motion I drafted when I was a defense attorney in a high-profile murder case involving a photographer accused of murdering a local model. The facts surrounding the defendant Charles Rathbun's, self-incriminating statements were largely uncontested.
When Rathbun was arrested at his home, he was ranting in a vaguely suicidal manner and so drunk he'd thrown up on his shirt. The police took Rathbun to the station house and subjected him to an interrogation several hours long in an overheated room. The interrogators kept him isolated from his lawyer, even though the lawyer happened to be at the station house. At no time did the police read the defendant his Miranda rights.
In filing the suppression motion, it wasn't hard to predict what the judge would do. He had three choices.
First, he could ignore the cops' obvious violation of Miranda and deny the suppression motion entirely. Second, he could find that the police had violated Miranda and that the ensuing confession was involuntarily given. Under this scenario, the judge would have to suppress both Rathbun's un-Mirandized statements and any fruits from those statements - which, in this case, meant basically everything the cops had found, including the body and the crucial forensic evidence.
Third, the judge could adopt a middle ground and find what is known as a "merely technical" violation of Miranda. This kind of violation occurs when the police have failed to give a suspect the "prophylactic" warnings Miranda requires, but where the ensuing confession is nonetheless deemed to be voluntarily given. Under this third option, the prosecution would be precluded from using the Rathbun's un-Mirandized station-house statements in its case-in-chief.
But the finding of such a technical violation does not taint evidence discovered as a result of those un-Mirandized,but voluntary, statements. Accordingly, the prosecution would still be able to use the victim's body and the forensic evidence despite the omission of Miranda warnings. Moreover, if Rathbun later decided to testify at trial, the prosecutor would be allowed to use his heretofore inadmissible un-Mirandized statements to impeach his testimony.
The judge in the Rathbun case, of course, opted for door number three. He couldn't ignore the obvious flouting of Miranda. But what judge was going to suppress completely the crucial forensic evidence in a case that had made the cover of People magazine? As a consequence, Rathbun was convicted and is currently serving a life sentence.
More credit than it deserves
Having served several years as a prosecutor, I have little doubt that the wholly predictable outcome of the Rathbun suppression motion illustrates some general truths about Miranda. Such truths have found little place in its reconsideration before the court -- although they strongly urge that this controversial precedent be re-affirmed. While liberals champion Miranda for its protection of individual rights and conservatives decry the windfall it offers guilty defendants when the constable stumbles, I believe both sides give the doctrine more credit than it deserves.
As matters currently stand, when police officers fail to observe Miranda, judges almost always limit themselves (as Rathbun's judge did) to finding "technical" violations of Miranda, thereby allowing prosecutors to use evidence derived from challenged confessions and to keep defendants from testifying in their own defense. Judges almost never take the extra step of finding a confession to be actually involuntary -- which would deprive the prosecution of any evidence obtained as a resulted of the tainted confession.
Indeed, in practice, and wholly apart from the much-debated issue of whether Miranda inhibits police from obtaining confessions, the ruling has become largely symbolic. It allows judges to scold police for misbehavior and pay lip service to the right against self-incrimination, while minimizing the actual effect on police and prosecutors. Indeed, the Supreme Court, by opening various loopholes in what appeared to be Miranda's original scope, has guaranteed that Miranda warnings would be largely ineffectual, whether or not the actual doctrine were to be overruled.
But the fact that Miranda does little either to protect defendant's rights or to punish police wrongdoing does not mean it serves no purpose.
Paradoxically, the toothlessness of the present incarnation of the Miranda doctrine has produced the unintended benefit of mitigating one of the worst flaws in federal criminal law, namely, the grossly disparate treatment received by defendants depending on which judge presides over their cases. And this disparity will be greatly exacerbated if Miranda is overturned and replaced by Section 3501, the federal statute currently at issue before the court.
The Miranda compromise
Section 3501 of the United States Code Annotated was enacted by an outraged Congress in 1968 in reaction to the Supreme Court's decision in Miranda. It effectively overruled Miranda by reinstating a case-by-case inquiry into the "voluntariness" of the suspect's confession. What the drafters of Section 3501 didn't anticipate was that Miranda would evolve into a doctrine that as a practical matter is acceptable to almost everyone along the political spectrum. As things work now, both liberal and conservative judges can live comfortably with Miranda. Conservative judges can live with Miranda's bright line rule requiring warnings for all custodial interrogations because door number three -- the merely "technical" violation -- allows them to follow the law without handing guilty defendants the keys to their jail cells. And liberal judges, using the same safety valve, can vent against police misconduct (and send messages to prosecutors and police supervisors) without leaving themselves open to the charge of letting too many bad guys skate on technicalities.
Reversing Miranda and substituting Section 3501's "totality of the circumstances" test for determining the admissibility of confessions will erase this universally acceptable middle ground and sharply polarize the handling of criminal cases.
In the absence of Miranda, judges will have only two options: either to find a defendant's confession voluntary under all the circumstances and, therefore, to admit everything into evidence; or to find a confession involuntary and to suppress not only the confession, but all evidence derived from that confession. Given this stark choice, conservative judges will basically never find that the police have violated a defendant's right against self-incrimination (the consequences would be too dear). But liberal judges will surely feel compelled to sanction police misconduct (as, for example, in the Rathbun case). And they will have no choice, if they want to hold cops accountable, but to completely destroy prosecutions by suppressing both confessions and all their fruits. As a result, in cases where police have obtained incriminating statements from defendants in less than savory circumstances, the outcome will depend solely upon that terrible moment at arraignment when the wheel spins and a judge is selected. Already, far too much depends on this game of judicial roulette. Overturning Miranda will only raise the stakes.
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