In Defense of Confessions

December 17, 1990

The post-Brennan Supreme Court has just issued its first major criminal justice decision. And it is a surprise. With the liberal William Brennan gone, the court was expected to veer even to the right of its recent course. In fact, it moved left and extended the Miranda rights for defendants.

In the 1966 Miranda case, the justices ruled that confessions from defendants could not be used as evidence if the police had failed to warn them these statements could be used against them and if they had not been given the explicit opportunity to consult a lawyer before deciding whether or not to confess.

The new decision involved a man convicted in a double murder in Mississippi. Arrested in California, he invoked his Miranda rights when FBI agents advised him of them. He conferred with a lawyer three times over the next two days. Then a deputy sheriff arrived from Mississippi to interview him. They talked about mutual acquaintances at home and, after another Miranda warning, the subject confessed. On the basis of this, he was tried and found guilty.

The Supreme Court threw the conviction out, asserting a new rule that once a suspect has invoked his Miranda rights, officers may not approach him again for questioning, even after a new Miranda warning, without a lawyer present.

An interesting aspect of the 6-2 opinion is that it was delivered by Justice Anthony Kennedy, with Chief Justice William Rehnquist and Justice Antonin Scalia dissenting. Justice Kennedy almost always comes down on the Rehnquist side in criminal cases. In the last 62 such decisions, Messrs. Kennedy and Rehnquist voted together 59 times. Some court followers have theorized that Justice Scalia has alienated Mr. Kennedy and some other conservatives by his style and criticism of them. Observers suspect Justices Kennedy, Sandra O'Connor and perhaps even Byron White joined in this decision in part for personal reasons rather than reasons of jurisprudence.

We think Justice Scalia was right in his dissent. Nothing in this case related to the sort of third-degree or near-third-degree station-house practices the Miranda decision was meant to prevent. This decision may, in effect, end most confessions. If so, the court has dealt law enforcement, society and even some defendants a serious setback. As Justice Scalia said:

"It is wrong and subtly corrosive of our criminal justice system to regard an honest confession as a 'mistake.' While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, 'admission of guilt. . . advances both justice and rehabilitation.' "

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