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Chipping Away at Miranda

On June 1st, the U.S. Supreme Court delivered an opinion that took aim at the landmark case, Miranda v. Arizona. In 1966, the Miranda decision came down in response to coercive police interrogations and “profoundly affirmed the Fifth Amendment right against self-incrimination, providing a clear marker that has served well suspects and law enforcement.” (See the editorial “Assaulting Miranda” in the Akron Beacon).  Before Miranda, law enforcement interrogations could last hours on end, pausing only for the suspect’s bare necessities to avoid charges of duress. As cited by Christopher Macchiaroli in The Champion magazine, pre-Miranda interrogations strived “to highlight isolation and unfamiliar surroundings.”  Police training manuals even went so far as to instruct law enforcement officers to “display an air of confidence in the suspect’s guilt, and to maintain an appearance of only being interested in incriminating details. For the accused, ‘no respite from the atmosphere of domination was to be permitted.’”

However, Miranda drastically changed the law enforcement landscape and the manner in which custodial interrogations by law enforcement were to take place.  As summarized in Colorado v. Connelly, under Miranda, any suspect taken into custody and subject to interrogation was required to receive warnings of his or her constitutional rights. The Supreme Court deemed that these warnings commonly known as “Miranda warnings” were necessary in order to curb the improper conduct of law enforcement officers during custodial interrogations.

Within the law enforcement community, Congress, and the court system, the Supreme Court’s decision in Miranda was met with outrage and bitter opposition.  Yet, despite judicial and legislative attempts to undermine Miranda, it was clear that it was “part of our national culture” (See Dickerson v. US) and that it was here to stay.  Nevertheless, as the years passed, Miranda’s holding was slowly re-crafted, undermined, and diminished. The Supreme Court’s most recent decision in Berghuis v. Thompkins continues down that path, further marginalizing Miranda’s impact as a constitutional protection for criminal defendants from self-incrimination.

The most recent staggering blow comes by way of a 5-4 majority in Berghuis.  According to the New York Times’ Adam Liptak, in the Berghuis case, Thompkins, a Michigan man accused of shooting another man to death, was arrested and “received the Miranda warning but refused to sign a form acknowledging that he understood his rights.”  Although Thompkins spoke up to say his chair was hard and to decline an offer for a peppermint, Thompkins otherwise remained silent through nearly three hours of interrogation up until the time when he said yes in response to each of three questions: “Do you believe in God?”, “Do you pray to God?”, and, most importantly, “Do you pray to God to forgive you for shooting that boy down?” Thompkins one-word response to the last question proved to be critical for a first-degree murder conviction which was later overturned in 2008 by a Federal Appeals Court. The court ruled that the response should have been excluded from the trial under Miranda because the state was unable to show that the defendant voluntarily waived his right to remain silent.

Fast-forward to last Tuesday where the New York Times reported that the U.S. Supreme Court overturned the appellate ruling on grounds that “decisions since Miranda had undercut its language and that a more sensible rule puts the burden on suspects to invoke their rights.” As Liptak explains, “Justice Anthony M. Kennedy, writing for the majority did not disturb Miranda’s requirement that suspects be told they have the right to remain silent.  But he [Kennedy] said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.” In the majority opinion, Justice Kennedy wrote, “a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an un-coerced statement to the police.”  In other words, subjects undergoing custodial interrogations who have received their Miranda warnings must now explicitly state that they are invoking their Miranda rights in order to actualize their constitutional right to remain silent.  As pointed out by Justice Sotomayor in her dissent, the majority created a contradiction of sorts because “a suspect who wishes to guard his right to remain silent, must, counter-intuitively, speak” in order to prevent the waiver of his Miranda rights.

Prior to Berghuis, it was clear that the burden was on the state to prove a valid waiver existed. However, as reported by the Akron Beacon, under the Berghuis decision, “Justice Anthony Kennedy reversed the burden, placing the onus on the suspect to state clearly a wish to remain silent.” This is a clear deviation from Miranda and Justice Sotomayor indicated as much, declaring that this decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”  Even Justice Kennedy acknowledged that, “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.” Indeed, as cited by Liptak, “the Miranda decision said that ‘a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.’” Moreover, Miranda adds that the “government faces ‘a heavy burden’ in trying to prove that a suspect’s waiver was knowing and intelligent.” Under the new rule, it appears that waivers of Miranda rights will be easier to obtain, even in cases where the accused does not fully understand his rights—as apparent in the Berghuis case.  Justice Sotomayor proclaimed that “these principles flatly contradict” earlier decisions from the court.  As she wrote in her dissent, “At best, the Court today creates an unworkable and conflicting set of presumptions, at worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

However, there are those that do not view the negative impact on Miranda to be as great as Sotomayor and many other commentators make it out be.  Take for example victims’ rights group advocate and legal director of the Criminal Justice Legal Foundation, Kent Scheidegger.  As reported by Liptak, Scheidegger believes the Supreme Court’s decision was a sensible one. “The Supreme Court recognized the practical realities that the police face in dealing with suspects,” said Scheidegger. “They don’t always answer the waiver question clearly.  When they do not, the bright-line rule of Miranda should not apply, and the statement should be admissible as long as it is not compelled.”

Law enforcement officials also share sentiments that the Berghuis decision will have a minimal impact on Miranda.  As reported by Michelle Casady of The Eagle, in Texas, “Officials with the Bryan and College Station police departments and the Brazos County Sheriff’s Office said officers have been made aware of the ruling, but they anticipate little will change. ‘I don’t look for it to make any significant differences in the way our cases are handled,’ said Sheriff Chris Kirk. ‘We’re very careful about Miranda and following proper procedures. The last thing we want is to jeopardize a case because we didn’t follow procedure.’”  Even some criminal defense attorneys, like Cameron Reynolds, don’t believe Berghuis will have much influence.  As cited by Casady, Reynolds remarks, “its nothing earth shattering.  It tightens, or lessens, the effects of Miranda for a criminally accused just a little, and cuts a little more to the state.”

The irony is that the most damning evidence against an accused person is often his or her own words, and any judicial steps taken to erode protections from self-incrimination can have a profound impact on a criminal defendant’s constitutional rights.  In the face of police tactics that aim to break down suspects, some protections must exist to remedy improper law enforcement conduct that ran rampant in the pre-Miranda age, 44 years ago.  And though the Berghuis case may not appear to be anything “earth-shattering,” it reinforces a judicial trend aimed at undercutting Miranda and the constitutional liberties it seeks to protect.  If the Court continues to hack away at Miranda, there may not be any Miranda protections left to uphold.

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