01/05/2000Recently, the Supreme Court agreed to determine the fate of Miranda warnings this term. Not whether the warnings will continue to be given; that is assured. But whether voluntary admissions by criminal suspects may sometimes be admitted into evidence despite Miranda warnings not having been read first, or despite there being a dispute as to whether or when the warnings were read.
The case on appeal, United States vs. Dickerson, demonstrates the issue perfectly. Charles Dickerson, a serial bank robber, voluntarily admitted to his role in several armed heists. The police questioning him say they read him his Miranda warnings before he made his incriminating remarks. Dickerson says they only read him his rights after he had already confessed.
For some reason, the lower court believed the bank robber over the police -- but found that Dickerson's admission was voluntary nonetheless. Last February, the 4th Circuit Court of Appeals ruled that Dickerson's confession did not have to be excluded from evidence. Citing a federal law known as Section 3501, the court ruled that the law permits the admission of confessions that are found to be voluntary, even if they were not preceded by Miranda warnings.
If the Supreme Court upholds Section 3501, Miranda will be gone. And so will be about 28,000 violent criminals (murderers, rapists, muggers and robbers) and 79,000 other serious felons who now go free each year because of Miranda.
Not gone exactly, but off the streets and committing no more crimes. This is according to a series of studies conducted by professor Paul Cassell at the University of Utah College of Law -- the only serious empirical studies of Miranda's effect that have ever been performed. That's how many criminals escape justice every year as a result of the Miranda decision.
Naturally, Harvard law faculty, the ACLU and other members of the criminal lobby in America are in a high dudgeon over the Dickerson decision. They know what is at stake.
The Miranda 5-4 decision provided that a criminal confession will be admissible only if the suspect was advised of his rights to remain silent and to a taxpayer-funded attorney before being asked any questions.
The Miranda warnings do not make things simpler, as is often claimed. They just give the guilty two bases on which to challenge a confession in the courts rather than one. With Miranda, confessed criminals can challenge not only whether they were given Miranda warnings at just the right time and under the proper circumstances, but also -- even if they were -- whether their confessions were voluntary. This is not a big time-saver. Instead of being on the street fighting crime, cops spend hours in court for suppression hearings.
Moreover, Miranda has led to a dramatic drop in criminal confessions, the single most important tool in law enforcement. About one-fifth of suspects are never questioned at all because of Miranda, and another 16 percent invoke their rights, ending all questioning, also according to empirical studies conducted by Cassell. Interpose a criminal defense lawyer between the law and a common criminal, and suddenly no one knows what "is" means.
In addition to reducing the number of outright confessions, Miranda has prevented cops from pinning suspects down to a particular story. As the country saw with the president this past year, it can be extremely useful just to get the perp to give some version of his story before he knows what everyone else is going to say. The less a criminal has to say before the evidence is in, the easier is it to craft some lie, no matter how preposterous, that is theoretically consistent with the evidence and statements of his co-conspirators.
Requiring Miranda warnings as the only test of whether a confession is voluntary did seem to create a nice bright-line rule. It was just stupid -- as stupid as a "bright line" rule that would define constitutionally protected speech as, say, only communications that use the word "moreover." While use of the word "moreover" would capture a lot of what is clearly speech and would create a nice "bright-line" rule, there would also be other constitutional speech that failed to use the word "moreover" but which would be excluded.
Congress's idea with Section 3501 was, to continue the example, to let the courts determine on the basis of all the evidence if the speech was "speech." Just as the courts do with 3,000 other constitutional terms.
Free speech is an excellent thing, but so is not being raped, mugged or murdered. And thanks to Miranda, there are almost 30,000 rapists, muggers and murderers returned to the streets every year.