The Washington Post
June 27, 2000, Tuesday, Final Edition

HEADLINE: ‘Miranda’–Confirmed but Barely Alive

BYLINE: Jonathan Turley

BODY:
“You have the right to remain silent . . .” It’s difficult to imagine what moviemakers would do without the required Miranda warning to top off the arrest scene in just about every cop film they produce. So yesterday’s 7 to 2 vote by the Supreme Court upholding Miranda as a constitutional principle should be a comfort to Hollywood. For criminal defendants, however, Miranda will continue to make better dramas than defenses despite yesterday’s ruling.

The survival of Miranda certainly came as a surprise to many who doubted both the decision’s original basis in the Constitution and its remaining support on a more conservative court than the one that handed down the ruling in 1966, when even Chief Justice Earl Warren could eke out only a 5 to 4 majority from a liberal court.

Yet, Warren’s most famous ruling was ultimately to be preserved by one of his most ardent critics, Chief Justice William Rehnquist. Putting to rest years of speculation over the viability and basis of the ruling, Rehnquist finally established that “Miranda is a constitutional decision” and, by extension, so are the progeny of cases that it inspired. As such, it is a rule that “Congress may not supersede legislatively.”

But despite the sweeping language of yesterday’s decision, there may be less to it than meets the eye. For while the Supreme Court is clearly unwilling to pull the plug, Miranda lingers at best on life support. In fact, the Miranda of the Warren Court died years ago. It succumbed not to a single blow of the conservative majority but to a thousand paper-cuts.

Over the years, the court has allowed a myriad of exceptions that make Miranda a mere symbolic presence in most federal cases. Because of these rulings, reversals of convictions under Miranda are relatively rare events.

For example, the court ruled in 1984 that Miranda warnings are not necessary when the police seek information “reasonably prompted by a concern for the public safety.” Under this “public safety exception,” the police can question a suspect about the location of a gun and then use the evidence against him in court.

Likewise, the court has limited the meaning of “custodial questioning” that triggers the Miranda protection. In a 1977 burglary case, the court found that Miranda did not apply when the chief suspect was “invited” to come to the police station to discuss the crime.

Once a person is in “custody,” the court has narrowed the definition of “interrogation” by holding that “voluntary statements” are not protected, even when made in response to statements by the police. Thus, in a 1980 case a suspect was arrested for murder, and the officers engaged in an anguished discussion of the possibility that children from a nearby school for the handicapped might find the shotgun used in the crime. The suspect promptly incriminated himself by telling them where the gun was. The court held that the officers could not have reasonably believed they would get such a response from the suspect.

Even after “interrogation” begins, the court has allowed for police to secure waivers through acts of deception. For example, the court upheld a waiver of Miranda rights in a 1986 murder case despite the fact that the police lied to a lawyer seeking access to the accused. After telling the lawyer that his client would not be interrogated, the police interrogated the suspect and secured a confession without ever disclosing that his family had hired a lawyer who was trying to see him.

Finally, even when the court recognizes a clear violation of Miranda, it has allowed police to use the evidence. For example, in one of many cases limiting the “exclusionary rule,” the court ruled in a 1971 case that such evidence could be used to “impeach” a defendant if he takes the stand in his own defense.

Ultimately, what saved Miranda from being overturned is probably more its mystique than its meaning. Miranda has become too interwoven in our legal and cultural fabric to simply be dispatched as no longer relevant. The court therefore preserved the body while allowing its spirit to drain away years ago.

There is a legitimate question as to whether Miranda is part of the Constitution, which does not expressly require a duty to inform defendants of their rights. But if it does indeed uphold a constitutional principle, there should be some substance to the protection. Otherwise, yesterday’s reaffirmation of Miranda as constitutional law is little more than a constitutional affectation.