Supreme Court Revisits Miranda-Again

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed for you.

These warnings and rights have been the law in this country since 1966 when the Supreme Court decided Miranda v. Arizona. Yet the Court has revisited the opinion fifty times since then. Why?

In 2000, the Supreme Court refused to overturn the decision. Yet, this week, it will revisit three cases, from Missouri, Colorado and Nebraska, and a verdict for the police in any one of them will sound the death knell for Miranda.

None of the three cases will overturn Miranda directly.

The new cases pose a different and still unresolved question: What happens if the police either deliberately or inadvertently do not warn a suspect of his or her rights before questioning? If there is no penalty for violating the Miranda rights, police will not follow them, the rule's defenders say.

For all practical purposes, Miranda will be a dead letter" if the justices side with police and prosecutors in all three cases, said Stephen Schulhofer, a law expert at the Brennan Center for Justice in New York. University of Michigan law professor Yale Kamisar agrees. "They would be overruling Miranda without saying so," he said.

The first case , Missouri v. Siebert, will decide whether police can question first and warn later. At issue is the dubious police practice of two-part interrogations used to deliberately sneak around the Miranda requirement:

The police questioned Patrice Seibert without a Miranda warning until they got her to make an admission. Then, after a break long enough to claim that a new interrogation had begun, they gave her a Miranda warning and resumed questioning. They referred to her prior admission and got her to acknowledge it.

The Missouri Supreme Court threw out the confession in the case:

Two-part interrogations allow the police to put off the Miranda warning until the hard part is over. If police officers can do this, the court concluded, Miranda will be "meaningless."

The second case "tests whether police and prosecutors may use physical evidence, such as a gun or drugs, despite a Miranda violation."

The third case involves the police questioning an accused after he had been charged without giving him Miranda warnings or allowing him to consult with his lawyer before deciding whether to answer them.

For the facts of the three new cases along with historical context, we recommend Richard Willig's article in USA Today.

For the reasons the Supreme Court should refuse to weaken Miranda, we recommend Don't Make Miranda Meaningless by former FBI Director William Sessions (under Reagan and Bush I) and James E. Johnson, the Treasury Department's undersecretary for enforcement during the Clinton administration.

Making pre-interrogation warnings merely optional would be a terrible loss for the criminal justice system, the Constitution and the people of this nation. By placing the decision to speak squarely in the suspect's hands, Miranda ensures a fairer process, one that leads to more accurate outcomes and promotes public trust in the system. Indeed, as the Supreme Court itself noted just three years ago, Miranda has become "part of our national culture." Retreating from Miranda or permitting officers to flout its requirements in this fashion would erode public confidence in law enforcement and be destructive of the rule of law.

The court should affirm that Miranda imposes clear obligations upon police. It would be a mistake for the Supreme Court to overturn the Missouri decision. To enforce the law effectively, we must also uphold and respect it.

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