The Federalist Society

The Future of Miranda and the Exclusionary Rule

Criminal Law & Procedure Practice Group Newsletter - Volume 3, Issue 3, Winter 2000

February 1, 2000

Bradford A. Berenson, William G. Otis, Tim Lynch, Michael O'Neill, Vivian Berger

Following are remarks from a panel discussion sponsored by the Criminal Law & Procedure Practice Group, which was part of the 1999 National Lawyers Convention. The convention took place November 11-13, 1999, in Washington, D.C.


MR. BERENSON (Moderator): The issue we are going to talk about this afternoon, "The Future of Miranda and the Exclusionary Rule" is at once very old and very new. It is very old because, at least, since Mapp v. Ohio and certainly after Miranda itself in 1968, there has been a perennial debate in the legal community at least over the advisability of some of these rules and of exclusionary rules in general.

Generally, the effort has been to try to find some way to reconcile the desire to convict the guilty upon competent evidence with a countervailing concern for finding some meaningful way to punish misconduct by law enforcement, that can in fact be very serious and detrimental to citizens' rights.

That debate has not been resolved, but a large step forward in discussing it appears to be in the offing, and that is why this subject is very new. This is the Dickerson case, arising out of the Fourth Circuit, which I suspect is going to consume most of our energy and attention this afternoon.

For those of you who are not familiar with it, the Fourth Circuit in the context of a criminal case reached out to decide an issue which Justice Scalia had flagged in a dissent from denial of certiorari a number of years ago, concerning the applicability of a statute — Section 3501— that Congress passed in the immediate aftermath of the Miranda decision. That statute purports to establish a voluntariness standard for the admission of confessions. The question thus arises is there really any legal warrant for excluding voluntary confessions that were nonetheless taken in violation of Miranda rights.

Some pioneering academic work in that area was done by Professor Paul Cassell, who is on the Executive Committee of the Criminal Law Practice Group. The Fourth Circuit appointed Professor Cassell to argue the case before them. He prevailed on Section 3501 and a hellacious fight ensued within the Justice Department that prompted the Department of Justice to seek two extensions from the Supreme Court on the deadline for filing their views on certiorari. Those views were recently filed. They have urged the Court to grant certiorari and have come down on the side of Miranda and against Section 3501. Janet Reno herself signed the brief. That provoked some serious dissent within the Justice Department and our first speaker this afternoon, Bill Otis, is one of the most notable dissenters.

After several years in the Criminal Division of the Department of Justice, in 1981 he went to work for the U.S. Attorney's Office for the Eastern District of Virginia as its Chief of Appeals. In 1989, Attorney General Thornburgh designated him as Senior Litigation Counsel for that office and three years later he went to the White House to serve as Special Counsel to President Bush. After the '92 election he returned to the U.S. Attorney's office, and over the course of his career there he has argued more than 100 cases in the Fourth Circuit. Bill was originally the Government's attorney in the Court of Appeals in the Dickerson case. When the Solicitor General refused to authorize him to make an argument under Section 3501, in response to the Fourth Circuit's initial inquiry, Bill declined to present the case at oral argument and sat on the sidelines.

After Professor Cassell won that case and the real fight ensued on rehearing en banc, the Department decided to actually join the defendant, the armed robber in that case, and the National Association of Criminal Defense Lawyers in seeking a rehearing. This time the Department affirmatively renounced the statute as unconstitutional, and at that point Mr. Otis resigned from the Department of Justice after a 24-year career there.

Our second speaker is Tim Lynch. Tim is the Director of the Cato Institute's Project on Criminal Justice. In that role he is an outspoken critic of hate crimes, gun control, and the drug war. He is currently preparing a paper on the Waco incident and how accountability in both federal and state law enforcement might be improved. Tim's articles and views on constitutional issues have appeared in the New York Times, the Wall Street Journal, the ABA Journal, NPR, ABC "World News Tonight" and many other publications and broadcasts. Mr. Lynch received his law degree from the Marquette University School of Law and is a member of the Wisconsin and D.C. bars.

Following him will be Professor Mike O'Neill from George Mason University School of Law. Prior to moving into academia, Professor O'Neill served as General Counsel to the United States Senate Committee on the Judiciary. He has served as a Special Assistant U.S. Attorney in the U.S. Attorney's Office for the District of Columbia and as an appellate litigator in the Department of Justice's Criminal Appellate section. He graduated from B.Y.U. and received his law degree from Yale. After graduating from Yale, he served as a law clerk on the D.C. Circuit for Judge Sentelle and the Supreme Court for Justice Thomas. He has recently been nominated to serve on the U.S. Sentencing Commission.

Our final speaker is Professor Vivian Berger. She is the Nash Professor of Law at Columbia University. Her scholarship, teaching and practice have been mainly in the areas of criminal law and procedure. She has worked as Assistant Counsel on the Capital Punishment Project at the NAACP Legal Defense and Educational Fund and as an Assistant District Attorney in New York from 1977 to 1982. During part of her tenure as an ADA, she served as Deputy Chief of Appeals. She also clerked for Judge Wilford Feinberg. Her professional credentials and activities include service on a number of boards including those of the ACLU, the Southern Center for Human Rights, the California Appellate Advocacy Institute, the Bridge, Inc., and, formerly, the First Department Assigned Counsel Corp. She is a member of the American Law Institute, the New York Unified Court System Advisory Commission and other professional committees. She also has a burgeoning specialty and practice in the field of mediation.


MR. OTIS: The question with which the Supreme Court is likely to find itself confronted if it grants cert in this case, as most people including me think it will, is whether Miranda or Section 3501 is the law governing the admissibility of confessions in Federal Court.I want to start with two observations. The first is that under our system of Government, Congress and the Executive Branch are the primary lawmakers in this country and not the judicial system. Second, to which I would like to point your attention is the statute itself. There has been a lot of talk in the press and some talking heads on TV and even in the Department of Justice's brief about the general issues involving this case but not a whole lot that actually tells you what is in the statute. So you may have some misconceptions about the statute and I would like to alleviate what those may be.

While voluntary statements are to be admitted under the statute, involuntarily given statements will remain inadmissible in all circumstances just as they are now. In deciding in any given case whether a statement was voluntary or involuntary the statute directs the judge to look at a number of factors, and I'm going to tell you what those factors are that the judge is going to have to consider in deciding whether to admit the statement: the length of time the suspect has been held in custody; whether the suspect has been advised of the subject matter that he is going to be asked about; whether the suspect has the assistance of a lawyer during questioning; and, most prominently, whether the suspect has been given the warnings in the Miranda case — that he has the right to a lawyer if he wants one, that the lawyer will be provided to him, that anything he says can be used against him at trial. These warnings are repeated in the text of the statute, although you wouldn't know it to listen just to what the press and largely the Department of Justice has said about the statute. No one factor is necessarily conclusive. The judge is enabled to hear all of the evidence and decide for himself in each case whether the statement is going to come in.

The question before the Supreme Court is not going to be or should not be a plebiscite on whether the statute is a good idea or a bad idea. The only question properly before the Supreme Court is whether Congress had the authority to adopt this statute and to make it the law in the face — and some would say in the teeth — of the Miranda opinion, and that in turn depends on whether Miranda implemented a constitutional requirement, specifically a requirement of the Fifth Amendment, or whether it did not. The Court does not sit to resolve policy disputes. Policy disputes, that is, whether this statute is a good idea or a bad idea for one reason or another, is something that is directed to the politically responsible branches and not to the courts. Nonetheless, these policy disputes have arisen.

The first thing that you should remember about this statute is that, just as is the case now under Miranda, involuntary statements will be inadmissible for all purposes, so the idea that we are going back to the rubber hose and the third degree under this statute or that this is an invitation to the police to go retrograde is just baloney. It's not true. A police officer who does that will be doing it to no purpose because the statement is going to be out. In other words, the remedy for a statement that actually is involuntary under this statute is identical to the remedy provided by the Fifth Amendment, and for that matter by Miranda. Second, what earthly reason is there that a society that cares about its own security, indeed its own survival, would turn its back on a suspect's voluntarily given confession? We often hear in the context of other debates that, for example, we have a greater proportion of our population in prison than every country or that we exact the death penalty. Is there any other country in the world, now or ever, that has rejected a suspect's voluntarily given confession? I don't know of any. The Department hasn't said there's any. There's no reason to be any and there's no reason for our country to be the first. Third, this statute continues to give the police a powerful incentive to give the warnings just as they are given now. This is true not merely because the statute repeats the warnings and because judges are used to police officers testifying that they have given the warnings and are going to be real suspicious of police who have interrogated a suspect without giving the warnings. That is, that the warnings fulfill the single most important driving force in human life, which is self-interest. The policeman has a self-interest in making his case, and he is going to make his case if he can get the statement in. His chances of getting the statement in are markedly increased if he gives the warnings, but it is not just self-interest, it is also intertia — the second most powerful force in human life. The police are used to giving the warnings and the police, like all other human beings, are likely to continue doing what they have been doing up to now. Do you think these warnings are going to disappear? What evidence is there that they are going to disappear? The Dickerson case has been the law in the five states in the Fourth Circuit for nine months now. There is not one shred of evidence that there has been any increase in abusive police questioning of any kind.

The fourth policy consideration that I would like to bring to your attention is this: What this statute does is to replace what is quite certainly the incorrect if not positively blockheaded, irrebuttable presumption of the Miranda case that all unwarned confessions must be involuntary confessions. That is simply not true. The principal reason that people talk to the police is they view it in their self-interest to do so — to say, "Well, yeah, I might have been in on the bank robbery but I didn't bring the gun and I actually never went into the bank. I was just driving the get-away car" or that, "You know, I was — I had had some marijuana that day and I'd also been drinking quite a bit, so yeah, I was there but I didn't really participate, and if I did, I didn't know what I was doing."

People talk to the police to advance their own self-interest and not because it is beaten out of them. That is not to say that it is never ever beaten out of them. It is simply to say that that happens quite infrequently and nowhere near as frequently as you would need to justify a presumption, much less an irrebuttable presumption, that an unwarned confession is an involuntary confession.

The fifth policy consideration that I would like you to think about is this. What this statute really does is adopt a nuanced and refined approach to the law of confessions rather than the absolutist approach of Miranda. It preserves for us the best of Miranda, the civilizing effect, on the police, while getting rid of the worst, and the worst of Miranda. Although the Department of Justice won't tell you much about it, it's not just that Miranda creates these warnings. Miranda also creates this automatic rule of exclusion — a one-size-fits-all exclusionary rule under which an unwarned statement is not admitted in court regardless of how powerful the evidence is that the police acted fairly and that the suspect spoke voluntarily. Section 3501 changes that rule by allowing the judge to decide — hear all the facts and decide in each case whether the statement should come in or not. What is the Department so afraid of that it wants to deprive the judge of the opportunity to make that judgment?

Obviously, Congress cannot override a constitutional holding of the Supreme Court, but equally obviously, Congress can override what is merely something less than that, an interpretation that is not grounded in a constitutional requirement. This is what the Supreme Court itself has said repeatedly for at least the last 25 years, since Michigan v. Tucker, about the constitutional status of Miranda and the Miranda rules, that it is a series of recommended procedural safeguards that are "not themselves rights protected by the Constitution and are not Constitutional in character." The Supreme Court has also said, through Justice O'Connor that Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable Constitutional harm But if that weren't enough, if 25 years of statements like that from the Supreme Court were not enough, I'd ask you to look at the cases the Court decided within that 25-year period — Oregon v. Hass and Harris v. New York. In each of those cases, the Court approved the admission into evidence of an unwarned statement given in police custody. The holdings of those cases are impossible to explain if the Court believed that an unwarned statement was a statement taken in violation of the Fifth Amendment, and accordingly, the Department of Justice's position cannot be correct unless the Department is also willing to urge, which apparently it isn't, the Supreme Court to overrule those cases. The Department shouldn't be doing that. They haven't been doing that, and at some point, they may have to confront in the Supreme Court questions by one of those conservative loonies, you know, about what are we going to do with our precedents if we adopt the Department's position.

As the Constitution recognizes, we live in a society that the Constitution helped create, a society in which confessions should not be beaten out of people or otherwise coerced out of them. A society that beats confessions out of suspects has lost its morals, but a society that turns its back on a suspect's voluntarily given confession has lost its marbles. We can keep our morals and our marbles by putting the statute into action and if the Department of Justice won't do it, I hope the Supreme Court will do it for them.


MR. LYNCH: Miranda and the law of custodial interrogation is a subset of the law pertaining to the right against self-incrimination. Because of this, let me begin by making some general observations about the Fifth Amendment and the right against self-incrimination.

The Fifth Amendment says that no person shall be compelled in any criminal case to be a witness against himself. Like other provisions in the Bill of Rights, this provision was designed to shield the individual against the power of the State. Under our Constitutional system, the burden of proving criminal activity rests with the Government. The State must investigate its own case, find its own witnesses, prove its own facts, and convince the jury with its own resources. Throughout this entire process from the initial stages of an investigation, through the prosecution and all the way through the trial, the accused has the Constitutional right to remain silent. The basic idea is that you should not be forced to assist the State in its effort to convict you of a crime and to put you in jail.

But we need to distinguish between compelled associations with State agents and voluntary interaction with State agents. It surprises me how many laypeople think that the law obligates them to engage in conversation or sit down with police officers. If an FBI agent greets me on the street as I leave this hotel and says "I would like to talk to you about certain matters," I can just say, "No thanks, I'm busy." But if the FBI asks you for permission to search your car, to search your home or to sit down with you over a cup of coffee to discuss some case it is investigating and you consent to that, you give agents your permission and go ahead, well, you have to live with the consequences of that decision. In this area of the law we must look for Government coercion. If there is coercion, the judiciary ought to intervene to protect the Fifth Amendment, whether by exercising the courts' power of judicial review or by employing an exclusionary rule.

With this framework as my guide, let me say that I think the Supreme Court has made a total mess of this area of the law. In my judgment, the Supreme Court has diluted the right against self-incrimination in some circumstances, but it has also expanded the Fifth Amendment, unjustifiably in my view, in other circumstances.

Let me give you some examples of what I mean. California v. Byers involved a so-called "hit and run" or "stop and report" statute. Most states have them. The statute says that if you cause property damage with your vehicle, you must stay on the scene and notify the authorities. Jim Byers was prosecuted for violating that statute and he, in turn, brought a Constitutional challenge against the statute itself. His argument was that the law requires people to incriminate themselves.

I think his claim made sense. After all, we do not have a law on the books that requires shoplifters to stay right there and call the police after they commit their crimes. However, the Supreme Court upheld the Constitutionality of the statute. There were dissenters in the case and I think that they had the better of the argument.

Consider another case, Braswell v. United States. This case will be familiar to many white collar practitioners. Randy Braswell was a businessman who was served with a subpoena by a grand jury. The grand jury was seeking his business records. Mr. Braswell invoked his Fifth Amendment privilege against self-incrimination. He was put to the choice of either disobeying a subpoena or incriminating himself by divulging records that might suggest wrongdoing to the government. The prosecutors were seeking these records for no other reason than to help them prosecute Mr. Braswell of a crime, so he invoked the Fifth Amendment privilege. In an opinion by Chief Justice Rehnquist, the Supreme Court rejected Mr. Braswell's Constitutional claim and forced him to comply with the subpoena.

Again, despite the obvious compulsion involved, the Court forced a suspect to turn over these records which prosecutors were anxious to get a hold of for no other reason than to convict him of a crime. These two cases — Byers and Braswell — are examples of very narrow readings of the Fifth Amendment.

In contrast, Miranda is a classic example of overreaching by the Supreme Court. The key contention of Miranda is that the Fifth Amendment is necessarily violated if the famous warnings are not given to the suspect. This contention has never been very persuasive to me. You can have a perfectly voluntary statement without Miranda warnings and such statement ought to be admissible in court.

Justice White made this point in his dissent in the Miranda case 30 years ago. White said what if police officers just sit down with a suspect and ask him without any warnings, "Did you kill your wife?" Or what if they put some evidence in front of him and say "How do you explain this?" If an incriminating statement results, there is no compulsion involved. Such statements ought to be admissible in court.

Accordingly, I think that the Fourth Circuit's Dickerson opinion was essentially correct. I don't agree with everything in it, but I think it was essentially correct and Section 3501 is constitutional.

Let me close with what I consider to be a provocative hypothetical. What happens if Congress decides to amend Section 3501? What if Congress says that all confessions, voluntary and involuntary, shall be admissible in court?

I expect that my answer to this question will be different from the answers of Bill Otis and Michael O'Neill. I expect that they might say that such a hypothetical statute may be unwise, but that is a policy decision for the legislature. I disagree. I think such a statute would run afoul of the Fifth Amendment and would require the courts to intercede, whether by exercising judicial review and invalidating the statute, or in the circumstances of a particular case, exercising an exclusionary rule.


PROFESSOR O'NEILL: I think that there's two important things to remember with respect to Miranda itself and with respect to the prophylactic rules we know as the Miranda warnings.

First there was the Constitutional issue — that is, are the Miranda warnings themselves compelled by the Fifth Amendment? There is a second albeit related issue, but the two issues should not be conflated — that is, whether the Miranda warnings are in fact a good policy notion. What may be a good public policy or a good article of faith may not be something compelled or required by the Constitution. It is important to keep those two issues separate.

The Supreme Court, unfortunately, has not kept them separate. I would like to go back a moment to Miranda itself. Most people just assume that the statute repeals Miranda. In fact, I would submit that it actually codifies Miranda, in that the warnings certainly are one of the touchstones that any reviewing court has to consider at when determining whether a confession is voluntarily obtained.

Similarly, I think Miranda has become such an important part of our pop culture and our legal culture and part of our political dialogue that people fail to actually go back and read the Miranda decision itself. If one reads Miranda, one finds in the language of the Court invitation to Congress, and an invitation to the States, to look at other means whereby voluntary confessions might be obtained and violations of the Fifth Amendment might be thwarted.

It is interesting in fact to compare the Miranda case and to compare the Miranda warnings to what happened in the context of the Fourth Amendment and the exclusionary rule. For those of you who recall your Criminal Procedure classes, you probably remember that back in 1914 in Weeks the Supreme Court doesn't create the exclusionary rule as a remedy, but rather validates exclusion that had been done in some of the lower Federal courts and some of the State courts. Then along comes Wolf v. Colorado where the Supreme Court has the opportunity to incorporate the Fourth Amendment against the States. Interestingly enough, all nine of the Justices in Wolf agree that the Fourth Amendment protection against unreasonable searches and seizures should in fact be applied to the States. Where they disagree, however, is on the remedy, and in fact a majority of the Court does not believe (or did not believe at that time) that the remedy of exclusion should be applied against the States.

Now we know that where there is a Constitutional right there must also be a remedy in the event that Constitutional right is violated. Ordinarily we look to courts as being the organs of government that are particularly good at creating remedies, especially fashioning remedies to address the Constitutional violation in the case that is currently before them. We also look at Congress and other legislative branches, the State legislatures also to create and to fashion broader remedies to take into account public policy considerations.

In Weeks at least, and also in Wolf v. Colorado, the Court was sensitive to that and the Court in fact said, look, we want the states to develop something that is going to be protective of individuals' Fourth Amendment rights, but it doesn't necessarily have to be exclusion. Then what happens?

Good old Mapp v. Ohio. There, the Court, without looking at any empirical evidence (and I am one that thinks the Court ought to in these situations look to empirical evidence) simply decides — sua sponte — to apply the remedy of exclusion to the States. The interesting thing about Mapp v. Ohio is that, much like Dickerson, in which the Government wasn't pressing the 3501 argument, the issue of the exclusion of evidence was in fact never raised by the parties nor was it briefed. That case was actually presented to the Court as a First Amendment case. Similarly, section 3501 is not raised by the Government in Dickerson but it's nevertheless argued. The Court appoints Paul Cassell to argue this case before the Fourth Circuit and it ultimately becomes the touchstone of the Fourth Circuit's opinion in Dickerson.

Miranda and the Miranda warnings, unlike the exclusionary rule, are not remedies for the violation of constitutional rights. The Miranda warnings are simply a prophylactic device to ensure that the rights never get violated in the first place. In part, the Supreme Court recognized this distinction in Miranda, but it sort of glosses over the fact that if this is only a prophylactic device because, if this is not part and parcel to the Fifth Amendment, if this is not a true remedy, then how does it get applied to the States?

Probably the most significant argument that I have heard for saying Miranda has to be compelled by the Fifth Amendment is the argument that there is no way the Court could have applied the Miranda warnings to the States if they were not part of the Fifth Amendment. I think that argument is wrong because the Court never really addressed the issue of whether or not it had supervisory authority over the states and whether Miranda was a remedy or commanded by the Fifth Amendment. That gets completely glossed over.

Of course Miranda warnings obviously are not part of the Fifth Amendment itself. No one is certainly making that sort of an argument. But the other sort of subtle and I think somewhat interesting point here is the fact that the Court in subsequent cases, as Bill has pointed out, clearly by its decisions in allowing confessions taken in violation of Miranda but that were otherwise voluntary and would not otherwise be prohibited by the Fifth Amendment are nevertheless allowed to be introduced as impeachment evidence, for example, or to be used in cross examination. The argument is that if Miranda were in fact part and parcel to the Fifth Amendment the evidence could not be used in that fashion. I think the Court has been confused, to say the least, or at least has given confusing opinions as to whether or not the warnings provided in Miranda are part of the Fifth Amendment.

But to me, at least, that is the only issue the Court should be considering. The Court should not be considering whether Miranda has symbolic value, because of course we recognize that Miranda has symbolic value. I think it was in the late 1970s the American Bar Association funded a study to find out what were what were the most significant or most important cases in American criminal law, and Miranda ranked number three. This wasn't among the general public. It was only among the lawyers and legal professionals, academics, and judges, and Miranda ranked number three.

Today I can turn on any cop show on TV or go to any movie and you will hear the Miranda warnings being read to some poor hapless suspect at some point. There is no question but that Miranda has an important symbolic value. But the Supreme Court is not there to deal in symbolism. It's there to deal in the facts of the case and what is commanded by the Constitution.

It is also ofttimes argued that Miranda is actually sort of a good rule in the sense that police officers think it is a good idea. This, with respect to the policy issue, the policy of Miranda may be correct. We may want as a society to have police officers reading defendants their purported rights before they actually obtain a confession. That may not be a bad policy. In fact, in many respects I agree with that policy. I think, however, there are circumstances in which you wouldn't want that necessarily to happen. There may be limited circumstances, but the question is more fundamental. It is whether or not that policy, that requirement that rights be read, is of Constitutional dimension. I think it is not, and I think the fact that Miranda may be a symbol and may be an important means of safeguarding defendant's rights, is not sufficient to raise it to Constitutional dimension.

Another thing I would like to address just briefly is the issue of what happens when we abandon Miranda. I am not sure. You can do sort of a head count making a determination as to whether there are the votes in the Court to dispense with the absolute requirement of Miranda or not. That is something you can sort of get involved with, but I think ultimately if Miranda is abandoned, aside from the parade of horribles that many people have presented in saying that the criminal justice system as we know it will not survive if Miranda is overruled or if Miranda is set aside, I think it is interesting to remember a couple of things.

First is that 3501 itself incorporates the Miranda warnings to make sure, at least as a touchstone of voluntariness, to determine whether or not a confession has been voluntarily obtained, Miranda is one of the issues the reviewing court is supposed to look to. Second, once an officer had the defendant's name written on the Miranda waiver-of-rights card that pretty much ended the inquiry. Nobody worried about whether or not the cops were wearing their uniforms or if guns were drawn necessarily. The whole issue came down to whether the suspect's name and signature on the Miranda card was actually the suspect's. If it was, "too bad, so sad," that confession is going to come in.

Perversely, I think one of the things that will happen is that it will force courts, district courts and magistrates, into a position of conducting a thorough and searching review to determine whether or not the confession has been voluntarily obtained. That may actually accrue to the benefit of the criminal defendant. That might be a positive benefit to the criminal defendant in at least those circumstances because now so often the suppression hearing itself is quite perfunctory.

But I think that the world is probably not going to change that much. Police officers have become very comfortable with Miranda. The Miranda warnings themselves were actually taken from that champion of civil liberties, J. Edgar Hoover and Hoover's FBI. The FBI was using Miranda-type warnings actually in advance of Miranda and the Court at least borrowed some of the language of the FBI warnings that Federal agents were using. It is an easy bright line for them to follow. Courts have become comfortable with it. I think, however, that if Miranda is set aside we will be in a situation not where courts are suddenly trampling all over the rights of criminal defendants, but they will still be looking and are commanded to look to by 3501 as to whether or not Miranda warnings have been given. But instead of being the only evidence the court will look to, that will be one of a number of factors the court will have to consider in determining whether or not the confession has been voluntarily obtained. I think that is a healthy thing for the system. That is a positive benefit, not only for the defendant but certainly for police officers and for society at large.

Finally, it is going to be interesting because 3501 only applies to the federal government, so what will happen with respect to the states if the Miranda warnings are set aside? Well, states will have to make sure that they have 3501 analogs, to ensure that they have systems in place that are going to be protective of the criminal defendant's rights. I think that is a good thing. I think that over time we can answer the Court's initial question in Miranda and determine empirically whether or not there are other systems that are just as protective or I would argue perhaps more protective of a criminal defendant's rights. I think that allows the states to be the socalled laboratories of experimentation that we often ask them to be.

In closing , I would just say that it is important not to conflate these two Constitutional and policy ideas for Miranda. It is important to look to see what the actual effect Miranda has had in terms of being a prophylactic device in protecting criminal defendants' rights. I think we can learn a lot from what the Court did in Weeks and in the Fourth Amendment context and some sort of analogy from that line of cases and from those theories, but in any event I think it is going to be a very interesting debate. I think we stand at an important moment for criminal procedure in this country, because if Miranda is set aside it will certainly be one of the most significant criminal procedure decisions issued in the last 20 or 30 years.

PROFESSOR BURGER: Let me frame my reaction to the Miranda debate by making two general and, I think, related comments. One, claims about Miranda's terrible effects on law enforcement are more than just wrong. Such claims focus debate on a convenient but irrelevant scapegoat while diverting attention from problems that really matter. and that is a response to the absent Professor Cassell, but even in his absence he is very much with us, particularly as the architect of Dickerson. Second, The war on Miranda is more about refighting a battle of the '60s than it is about today's law enforcement needs.

The first comment came from Professor Steven J. Shulhoffer, Miranda's chief academic defender. The second, unpublished, was made by my colleague, Professor Gerard E. Lynch, who is a Columbia Law School Professor but who also served as head of the Criminal Division in the Office of the United States Attorney for the Southern District of New York.

If I were to add my own sound bite along these lines, I think I would entitle today's remarks, "Much ado about not that much."

On a pragmatic level, and again responding to the absent Professor Cassell, whose work has certainly been much ballyhooed, I would like to say that his empirical work on Miranda's effects in fact provides a rickety foundation for his thesis that this decision has led to a substantial loss of confessions and, consequently, significant declines in clearance rates and convictions for serious crimes. It would take much more than my allotted time even to begin to lay out Professor Cassell's analyses and his critics' refutations, and his rejoinders and their rebuttals and so on back and forth. Because so many of Miranda's most ardent opponents do rely so heavily on Professor Cassell, you should know that his methodology and his conclusions have been quite seriously impugned.

Moreover, his major challengers include not only such usual liberal suspects as Professor Shulhoffer but also, for example, Professors George Thomas and John J. Donohue, III, who hold no particular belief for Miranda that I am aware of. Professor Thomas indeed was recently quoted in the New York Times saying that he is, quote, "agnostic" as to the wisdom of Miranda as a policy matter.

Our knowledge about how Miranda works in practice raises the question, not why its detractors desire so fervently to overrule it, but rather why its proponents care that it be retained. The vast majority of warned suspects do waive their rights and agree to talk. In a 1996 study, Professor Richard A. Leo found that a mere 21.7 percent declined to do so.

In another article published that same year, Professor Cassell himself related that only 12.1 percent invoked their rights before police were successful in interrogation. Perhaps unsurprisingly, the police live comfortably with Miranda. In my five or six years as a local prosecutor in Manhattan in the late '70s and early '80s I cannot recall a single officer inveighing against it. Based on my experience, cops at least in New York City are not shy about voicing any complaints that they do have.

In addition, as Professor Yale Kamisar notes, "The opinion has not, to put it mildly, been given an expansive reading." I need not elaborate too much here. The Supreme Court has construed key concepts like "custodial interrogation" quite narrowly. It has never applied the socalled "fruits" doctrine to exclude evidence arising from statements obtained in violation of Miranda. It has announced important qualifications to the basic rule, such as the public safety exception, the impeachment use of non-compliant admissions, the stringent requirement of an unequivocal assertion by the suspect of the counsel right, and more.

So what is this Miranda debate all about? In not insignificant part, what Professor O'Neill has mentioned — symbols. In the '60s, when Congress enacted 3501 in order to repeal Miranda, (and however 3501 is certainly being discussed in these elite circles, certainly it was enacted to repeal Miranda). The opponents view this decision as emblematic of all that was wrong with the activism of the Warren Court — probably most of you agree with that position — even after the dragon has died, the dragon must still be slain, forsooth.

On the other hand, the supporters of Miranda, among whom I include myself, although not with the passion I see expended by others on this issue, regard the decision as symbolic in a different sense. As Professor Shulhoffer once put it: "Procedure matters." Miranda is one of those criminal procedural guarantees that, "underscore our societal commitment to restraint in an area in which emotions easily run uncontrolled." But Miranda is hardly the sole nor the most primary such protection. I don't think the fate of the Republic rests on its back, but at a time when law and order continues to be the rallying cry for politicians of every stripe, and even Article III judges look over their shoulders lest they be excoriated or even impeached for issuing rulings coddling criminals, I tend to see Miranda as a fairly positive symbol. More broadly, symbols aside, I believe the arguments for it outweigh those proffered against it, and after the 30-plus years of Miranda, the burden of proof rests on those who would overrule it, and they haven't met it.

I have already mentioned the lack of persuasive empirical proof that Miranda harms law enforcement. While this has not been a particular theme among the sophisticated discussions this afternoon, that is certainly an argument made in other circles. To the contrary, Miranda in some ways helps police and prosecutors as well as courts overseeing motions to suppress statements insofar as it furnishes a bright line rule for questioners who wish to obtain admissible confessions. Now while even the brightest of lines can be a bit blurry around the edges, Miranda I think gives infinitely better guidance than the traditional congressionally revived totality of the circumstances, voluntariness test. Notably past and present officials at the highest tier of law enforcement have endorsed keeping Miranda — for example, FBI Director Louis Freeh. We heard about the prominence of these warnings from Director Hoover, former New York City Police Commissioner William Bratton, former Solicitor General Charles Fried, to name just a few nonbleeding hearts that occur to my mind.

Many such supporters believe, as I do, that Miranda has enhanced police professionalism. What practical message then would abandoning Miranda at this late stage send to the average cop in the precinct, not to speak of the public at large weaned on these warnings by television and movies and so forth, the whole popular culture?

Well, at worst, doing so would suggest that the gloves are off, and I don't mean by that necessarily the hose and the truncheon. There are many other ways of compelling confessions, and doing so would reinforce the view that rights are luxuries that we can't afford to waste on criminals. At best, some police and prosecutors, conceivably some states, might continue to give the warnings or some sort of warnings or the warnings in some form, in whole or in part. This raises the point that perhaps making Miranda a local option will cause more confusion and uncertainty than Miranda itself did in the first place.

Well, what of Section 3501, to which the other speakers have mainly devoted their time? I haven't chosen to devote so much of my time to this topic, yet plainly should the statute override Miranda we can argue about the decisions, virtues and vices till kingdom come. It won't matter at least on the Federal side if Congress has legitimately struck the balance itself.

For now suffice it to say I believe along with Professor O'Neill that the constitutional status of Miranda is an open question. Intellectual honesty demands recognition that the Court has sent mixed signals on the issue for a number of years. While I certainly don't buy what I consider the superinflated rhetoric of Judge Williams in Dickerson — neither do I think the argument the other way is obvious. So it is conceivable that the Court ultimately will hold that Miranda is not mandatory constitutional law, although I would predict it will not do that. To say that is not however to conclude automatically that Section 3501 passes muster.

If the warning and waiver regime, or in the words of Chief Justice Warren "something fully as effective" — that comes from the Miranda decision itself — is not constitutionally required, then unless we have been in a totally lawless regime all these years, then Miranda likely amounts to constitutional common law as explicated best perhaps by my colleague Professor Henry Monaghan. On this hypothesis in order for Congress to dispense with Miranda it must provide at the very least an adequate substitute for the problem seen by the Court that generated the Miranda decision.

Notwithstanding the contrary claims of those who want to thrust Dickerson upon the Court, and since the Solicitor General has joined in, it looks that Dickerson will go before the Court, I think that Section 3501 plainly falls short in this regard. Dress it up as you will, the new — new old, bad old voluntariness test simply overturns Miranda. I have heard a lot of sort of advertisements for it this afternoon, that just kind of sticks in Miranda. I think that would be very interesting to those who labored to get it passed in 1968. It clearly was meant to overturn Miranda. The old voluntariness test was, of course, wholly indeterminate and didn't function well at all. Certainly courts could and in latter days did look at such factors as whether or not people had been warned of their rights or had counsel, or all of these other Mirandarelated inquiries.

Interestingly, Professor Monaghan, in his big article on constitutional common law, quotes Professor Robert Burt's description of 3501, as "a gesture of defiance at a Court which protected criminals and communists." Commenting on this, Professor Monaghan, whom I can tell you firsthand is not another bleeding heart, agrees that 3501 did not reflect "a good faith dispute over the power of Congress to shape a rule protective of the Fifth Amendment using its own assessment of how subconstitutional policies should be compromised."

A different statute, for example, one commanding that interrogations, not just the resulting confessions, but a whole interrogation be videotaped, with possibly other sorts of protections as well, would present the much closer question.

I will end now where I often do in presentations of this nature, with the admittedly unpopular sentiment that a person sincerely concerned with crime control, and I count myself as one — I was a prosecutor longer than I was a defense attorney. If such folks would focus more of our resources, intellectually and monetary, on finding ways to alleviate the conditions that foster crime, and less on trying to curtail the rights of suspected criminals, we would all be better off. If that suggestion places me squarely on the midnight basketball court so be it.


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