The right to remain silent?

Law professor, justice of Supreme Court aim to replace Miranda

February 28, 1999|By Lyle Denniston

WASHINGTON -- "Miranda warnings" seem to have become a permanent fixture not only in daily police life but also in television and movie dramas. But that is not the way Antonin Scalia and Paul G. Cassell would have it, and they just might get their way.

For years, Scalia, a Supreme Court justice, and Cassell, a University of Utah law professor and a one-time law clerk to Scalia on a lower court, have worked -- not in tandem, but in common purpose -- to challenge the Miranda decision and its famous mandate to police.

The warnings, required before police may question a suspect they hold, are designed to prevent forced confessions. The words are familiar: "You have the right to remain silent" ... "You have the right to an attorney" ... "Anything you say can and will be used against you."

The 1966 decision in Miranda vs. Arizona has so much history behind it that the warnings sometimes seem invulnerable to attacks from critics such as Scalia and Cassell. But that perception is based on two supposed truisms.

The first is that no one is serious anymore about changing the ruling, which withstood an assault by Cassell when he was a top-level Justice Department official in the Reagan administration. The second is that seven consecutive presidential administrations helped make it permanent by willingly accepting it.

Both are untrue. Miranda is under siege again, and may be more vulnerable to change than at any previous time in its 33-year history.

If Miranda warnings are changed or cast aside, Miranda's supporters are convinced, police will return to trickery in interrogation, and perhaps to strong-arm tactics. The decision's critics maintain that the guilty will continue to get off on technicalities if the warnings are not relaxed.

No one can predict whether a majority of five Supreme Court justices stands ready to overrule Miranda, although in recent years the court has significantly narrowed the decision's scope. And the day might be coming when the court would cut back so sharply on the mandate that police would no longer issue the warnings.

The court might soon have to rethink Miranda, to decide whether it is rooted in the Constitution -- and thus can be undone only by overruling it or by amending the Constitution.

If the court decides that Miranda has no constitutional basis, federal agents would be bound by what's known as "Section 3501," a 1968 federal law that is far more permissive about police interrogation practices. State and local police would no longer be bound by Miranda. Freed of the legal risk of losing cases because of Miranda violations, officers might give up the procedure. From Miranda's beginning in 1966, it has applied to police at all levels.

This month, the 4th U.S. Circuit Court of Appeals in Richmond, Va., began setting the stage for an ultimate test of the Supreme Court's willingness to stand by Miranda. The appeals court concluded that Miranda has been displaced by Section 3501.

Two of Miranda's most determined challengers can take some credit for this new and serious threat to Miranda: Justice Scalia and Utah professor Cassell. Scalia has been publicly advocating a confrontation over Miranda for seven years, and the Circuit Court relied heavily on his views; Cassell has been pursuing that confrontation nearly twice as long, and he argued the case in Richmond.

Cassell says he and Scalia have never talked directly about their views on Miranda, but they have denounced the decision in the same terms: They say it has led to the freeing of many suspects who were guilty of crimes, but who got off because of Miranda.

Congress decreed that if a suspect being held by police for a federal crime had confessed voluntarily, the confession could be used as evidence even if the police had given no Miranda warnings. The backers of Section 3501 thought of it ambitiously, as an intentional, direct affront to Miranda, so that the two could not coexist.

What had to happen to set up a confrontation over the constitutionality of that section and over the fate of Miranda was a test case for the courts -- one like the case unfolding in the federal appeals court in Richmond involving Marylander Charles Thomas Dickerson, accused of a string of bank robberies.

The Dickerson case seems an ideal test: His Miranda rights were violated, but the confession he gave was found to be voluntary. If the Miranda decision were followed, his confession would be barred as evidence; Section 3501 would allow it. The appeals court said it must be allowed, because of Section 3501.

When the law was newly on the books, and in many years since, no such test cases were likely. President Lyndon Johnson signed Section 3501 even though he said in a message that it was "vague and ambiguous." He ordered federal agents to "continue to conform to the Constitution" and to go on giving suspects "full and fair warning of their constitutional rights."

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