The Federalist Society

Emperor Miranda Has No Clothes but the Reno Justice Department Instructed Its Staff Not to Say So

Criminal Law & Procedure Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

August 1, 1999

Gerald Walpin

For almost 180 years before 1966, the rule concerning the admissibility of a confession was simple under both the Common Law of England and the Constitution of the United States: A confession was admissible unless not voluntarily made. In this country, the Supreme Court, near the end of the nineteenth Century, held that an involuntary or coerced confession violated the Fifth Amendment right against compelling any person to be a witness against himself.1

Then, in 1966, a 5 to 4 ruling by the Supreme Court, in Miranda v. Arizona,2 turned the confession admissibility rule on its head: A confession by a suspect in a custodial setting, even though voluntarily made, would be inadmissible unless, preceding the confession, the suspect was given four boiler-plate warnings: (i) the right to remain silent; (ii) any statement could be used against him; (iii) the right to have an attorney present at any questioning; and (iv) the right to have an attorney appointed if the suspect was without funds.

The Miranda Court did not even attempt to suggest that it had discovered something in the Constitution which had made the 180 years of contrary doctrine violative of the Constitution. To the contrary, the Court read the Constitution as not requiring any "particular solution for the inherent" problem of determining whether a confession was voluntary. Instead of maintaining the 180 year old Constitutional standard that voluntariness can only be determined on a case-by-case analysis of the circumstances surrounding each confession, the Miranda Court substituted these Justices' view as to preferred "procedural safeguards"3, elsewhere described in the same opinion as a "straightjacket," albeit not constitutional.4

Within two years, Congress took action to reverse the Miranda revision of the legal landscape. Taking heed of Justices Harlan's dissenting opinion in Miranda that the "social costs of crime are too great to call the new rules [enunciated in Miranda] anything but a hazardous experimentation,"5 Congress enacted 18 U.S.C. §3501, which mandates a return to the 180 year old prior Constitutional rule that a confession, if determined to be voluntarily given, is admissible. Congress left no doubt that §3501's purpose was to reverse the holding in Miranda. This statute provided that, while the trial court, in deciding whether a confession is voluntary, should take into account all circumstances surrounding the confession, including whether Miranda-type warnings were given, the absence of such warnings would not preclude admissibility of an otherwise voluntary confession.

Congress' power to set aside the Miranda decision is clear. Absent a Constitutional basis for a Supreme Court decision — and, as discussed above, Miranda is not Constitutionally based — Congress is the final arbiter of appropriate rules of evidence and judicial procedure.6

Section 3501 thus became the law of this land. Our Second Circuit Court of Appeals expressly recognized §3501's supremacy over the Miranda procedures, in citing §3501 as providing that the absence of Miranda warnings "need not be dispositive" on determining voluntariness of a confession.7 Our law enforcement officials, including the Attorney-General are sworn to uphold and enforce the law of the land. see U.S. Const. Art. II §3. Yet for thirty years, in a classic example of Orwellian double-speak, the Attorneys-General have proclaimed their allegiance to the rule of law by refusing to enforce the validly enacted §3501.

This lawlessness would have continued to be the law of the land had it not been for the intellectual honesty of two Fourth Circuit Judges in the recent decision they rendered in United States v. Dickerson.8 The material facts were apparently undisputed: An individual, using a silver semi-automatic handgun and carrying a black leather bag, robbed a bank in Alexandria, Virginia. An eyewitness saw the robber exit the bank and noted the license plate and type and color of car into which the robber entered for his escape. Subsequent FBI investigation determined that the car was registered to Dickerson. Visited by FBI agents, Dickerson agreed to accompany them to the FBI office where Dickerson initially denied any involvement in the bank robbery but admitted to being in the area of the bank when it was robbed. Subsequently, while Dickerson remained in the FBI offices, the FBI obtained a search warrant and Dickerson was informed that the agents were then about to search his residence. Shortly thereafter, Dickerson volunteered a confession to involvement in the robbery, and named his accomplice who, on being arrested, also confessed. To put the icing on Dickerson's guilt, the search of Dickerson's residence and car produced a silver semi-automatic handgun, a black leather bag, ammunition, masks, and dye-stained money.

On defendants' motion to suppress his confession, the District Court held that the confession was voluntarily given but suppressed the confession because Dickerson was not furnished his Miranda warnings until after he confessed. Subsequently, the District Court rejected the Government's motion for reconsideration, citing §3501 as mandating the admissibility of a voluntary confession without regard to Miranda warnings.

On appeal, as the Court of Appeals stated in its opinion, the "United States Department of Justice took the unusual step of actually prohibiting the U.S. Attorney's office from briefing the issue" that §3501 had preempted Miranda, thereby "affirmatively imped[ing] its enforcement."9

Faced with the Attorney-General's purposeful refusal to apply §3501 to the facts of that case, the Fourth Circuit accepted an amicus brief and oral argument assertion that §3501 required reversal of the suppression order, and held that §3501 superceded Miranda. Absent the Court's allowance of an amicus to supplement the Government's argument, §3501 would have been left languishing and impotent on the legislative vine. Several attempts by Assistant U.S. Attorneys to rely on §3501 were struck down by Attorney-General Reno who went so far as to order withdrawal of a brief making that argument which had been filed with an Appellate Court.(10) Because, obviously, no defendant would argue §3501's supremacy, the Attorney-General's direction prohibiting reliance on §3501 effectively rescinded Congress' enactment.

The demise of Miranda, though long a-coming, puts reason and sanity back in law enforcement. Miranda was, as expected, applauded by criminals and defense counsel because it provided a previously-unavailable immunity from conviction for an admittedly guilty defendant. But average law abiding citizens, who naively thought that courts were supposed to protect them from criminals, lost confidence in a system which freed indisputably guilty criminals back into society to repeat their crimes against other innocent persons.

Legal literature documents that "thousands of violent criminals escape justice each year as a direct result of Miranda."11 This conclusion is exemplified by the Dickerson case itself. The District Court, in ordering suppression of Dickerson's confession, made probable the release back into society of a confessed bank robber who had, in a series of bank robberies, brandished a semi-automatic to succeed in his criminal endeavors. Sooner or later, Dickerson would fire that pistol and an innocent member of society would be killed because of Miranda.

No one has ever explained the practical logic of Miranda. It was billed as a means of avoiding coerced confessions. But how and why? Pre-Miranda, the court would hold an evidentiary hearing to determine directly from the facts whether a confession was voluntary or coerced. If the facts established that it was coerced, the confession was suppressed. Defenders of Miranda argued that Miranda was needed because policemen would lie and deny coercion. No doubt there are some policemen — as some in all other professions — who would lie, denying brutal or coercive conduct that resulted in a confession. But the policeman who would engage in brutal conduct to obtain a confession and then lie by denying that conduct would not hesitate to testify falsely that he had timely furnished Miranda warnings. Unfortunately, the converse was also true: The honest policeman, who would not engage in brutal conduct to obtain a confession, would not lie to claim giving Miranda warnings when they had not been given, thus resulting in the freeing of a guilty defendant because the policeman was honest. What is the benefit from a rule that frees a guilty defendant who voluntarily confessed to a policeman just because the defendant was not told that he did not have to confess?

Yet, some people have defended Miranda as a bulwark against oppressive law enforcement. Such simplistic sloganizing ignores reality. For almost 180 years, our society, living under our very protective Constitution, accepted confessions, if found to be voluntary, as evidence. No one should question that, given human nature and that rotten apples can be found even in the police barrel, some coerced confessions were accepted through perjured police testimony as voluntary. But that is no reason to throw out the baby due to a little dirty water. Confessions — particularly when they set forth details that could be known only to the person guilty of committing the crime — provide reliable proof. As the Supreme Court itself noted more than 70 years before Miranda, "the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence."12

The Miranda rule runs counter to law enforcement and societal needs. Why should society entreat a defendant not to confess? Any defense lawyer worth his/her salt would, at least at the time of arrest, advise the defendant against confessing in order to provide time to determine not whether the defendant is guilty, but to determine whether the prosecutor has enough evidence to establish that guilt. Society's interest is different — it is to insulate society from those who are guilty, not to tell criminals to remain silent in order to see if that criminal can get away with the crime. Miranda turned the policeman into defense counsel, warning suspects of the benefits of remaining silent. The Fourth Circuit has had the good sense and courage to describe Miranda as what it really is — a rule without any protective cloak for society, but one protecting guilty criminals.

Attorney-General Reno's role in prevention of government attorneys from telling the truth about Miranda casts great doubt on the professional, as against political, dedication of that office.

It is an elementary axiom of the professional obligations of an attorney that the attorney must "represent the client zealously within the bounds of the law" (EC 7-8), and "resolve in favor of the client doubts as to the bounds of the law" (EC 7-8), including by urging "any permissible construction of the law favorable to the client" (EC 7-4). While the "responsibility of a public prosecutor differs from that of the usual advocate," that difference enjoins the prosecutor "to seek justice" (EC 7-13) both to the defendant and to society, not to work for the injustice of freeing a guilty criminal by refusing to enforce a law validly enacted by Congress.13 A private lawyer who refuses to press a legal basis in support of his client's case merely because the lawyer personally disagrees with that legal basis would face a malpractice action. The American people, whose Congress enacted §3501 and who are the ultimate client of the Attorney-General, are likewise entitled to demand that their attorney, the Attorney-General, press all constructions of the law favorable to protecting the American public — including the validity of §3501, even though she might personally disagree with the law.


* Gerald Walpin is a senior litigation partner at Rosenman & Colin LLP in New York, and National Chairman of the Litigation Practice Group of The Federalist Society.

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   1. Bram v. United States, 168 U.S. 532 (1897).
   2. 384 U.S. 436 (1966).
   3. Id. at 444 and 478; see also id. at 490.
   4. Id. at 467.
   5. Id. at 517 (dissent).
   6. Palmero v. United States, 360 U.S. 343, 345-48, 353-355 (1959); Vance v. Terracas, 444 U.S. 252, 265 (1980).
   7. Deshawn v. Safir, 156 F.3d 340, 346 (2d Cir. 1998).
   8. No. 97-4750, 1999 WL 61200 (4th Cir. Feb. 8, 1999).
   9. Id. at *10.
  10. Id.
  11. Id. at *16, citing e.g., Cassell & Fowles, Handcuffing The Cops? A Thirty-Year Perspective on Miranda's Harmful Effects On Law Enforcement, 50 Stan. L. Rev. 1055 (1995).
  12. Brown v. Walker, 161 U.S. 591, 596-97 (1896).
  13. "Justice, though due to the accused, is due to the accuser also." Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)(Cardozo, J.).


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