{"id":52086,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/how-miranda-really-works.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"how-miranda-really-works","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/how-miranda-really-works.html","title":{"rendered":"How Miranda Really Works"},"content":{"rendered":"\n
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HOW MIRANDA REALLY WORKS<\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2>
\n<\/a>—-\n
Monday, Jun. 05, 2000<\/div><\/td>\n\n <\/tr>\n <\/table>\n

As rumors filter out of the Supreme Court that the Justices are closely divided \nover whether they will overturn the controversial Miranda v. Arizona<\/i> \ndecision (1966) this term in Dickerson v. United States<\/i>, it is striking \nhow little the current debate takes into account the way lower court judges \nactually apply the Miranda<\/i> rule. Any practitioner who has watched how Miranda<\/i> \ndeterminations play out during criminal trials knows that the doctrine is neither \nunloosing thousands of criminals onto our streets, nor protecting criminal defendants \nagainst the worst of police misconduct. In fact, in the thirty-some years since \nMiranda<\/i> was decided, our legal system has accommodated itself to Miranda<\/i>, so \nas to make of the doctrine a surprisingly useful compromise between those extremes.<\/p>\n\n

The Three Possibilities Post-Miranda<\/i><\/b><\/p>\n\n
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<\/td> \"[Illustration]\"<\/td> <\/tr>
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My own experience with the Miranda<\/i> doctrine began with a suppression motion I drafted in a high-profile murder case involving a photographer accused of murdering a local model. The facts \nsurrounding defendant Charles Rathbun’s self-incriminating statements \nwere largely uncontested. When Rathbun was arrested at his home, he was ranting \nin a vaguely suicidal manner and so drunk he’d thrown up on his shirt. The police \ntook Rathbun to the station house and subjected him to a several-hour-long interrogation \nin an overheated room. The interrogators kept him isolated from his lawyer, \neven though the lawyer happened to be at the station house. At no time did the \npolice read the defendant his Miranda<\/i> rights. <\/p>\n\n

Succumbing to intense questioning, Rathbun admitted to killing the model, claiming \nit was accidental. The next day, after an overnight suicide attempt, the police \nconvinced him to guide them to the victim’s body — which, in turn, yielded \nstrong forensic evidence disputing his claim of accidental death. <\/p>\n\n

In filing the suppression motion, it wasn’t hard to predict what the judge \nwould do. He had three choices. First, he could ignore the cops’ obvious violation \nof Miranda<\/i> and deny the suppression motion entirely. Second, he could find that \nthe police had violated Miranda<\/i> and that the ensuing confession was involuntarily \ngiven. Under this scenario, the judge would have to suppress both Rathbun’s \nun-Mirandized statements and any fruits from those statements — which, in this \ncase, meant basically everything the cops had found, including the body and \nthe crucial forensic evidence. <\/p>\n\n

Or, third, the judge could adopt a middle ground and find what is known as \na “merely technical” violation of Miranda<\/i>. This kind of violation occurs when \nthe police have failed to give a suspect the “prophylactic” warnings Miranda<\/i> \nrequires, but where the ensuing confession is nonetheless deemed to be voluntarily \ngiven. Under this third option, the prosecution would be precluded from using \nthe Rathbun’s un-Mirandized station house statements in its case-in-chief. But \nthe finding of such a technical violation does not taint evidence discovered \nas a result of<\/i> those un-Mirandized but voluntary statements. Accordingly, \nthe prosecution would still be able to use the victim’s body and the forensic \nevidence despite the omission of Miranda<\/i> warnings. Moreover, if Rathbun later \ndecided to testify at trial, the prosecutor would be allowed to use his heretofore \ninadmissible un-Mirandized statements to impeach his testimony. <\/p>\n\n

The judge in the Rathbun case, of course, opted for door number three. He couldn’t \nignore the obvious flouting of Miranda<\/i>. But what judge was going to suppress \ncompletely the crucial forensic evidence in a case that had made the cover of \nPeople<\/i> magazine? As a consequence, Rathbun was convicted and is currently \nserving a life sentence. <\/p>\n\n

Option Number Three: The Best Of Both Worlds<\/b><\/p>\n\n

Having served several years as a prosecutor, I have little doubt that the wholly \npredictable outcome of the Rathbun suppression motion illustrates some general \ntruths about Miranda<\/i>. Such truths have found little place in its reconsideration \nbefore the Court — although they strongly urge that this controversial precedent \nbe re-affirmed. While liberals champion Miranda<\/i> for its protection of individual \nrights and conservatives decry the windfall it offers guilty defendants when \nthe constable stumbles, I believe both sides give the doctrine more credit than \nit deserves. <\/p>\n\nalmost always limit themselves (as Rathbun’s judge did) to finding “technical” \nviolations of Miranda<\/i>, thereby allowing prosecutors to use evidence derived \nfrom challenged confessions and to keep defendants from testifying in their \nown defense. Judges almost never take the extra step of finding a confession \nto be actually involuntary — which would deprive the prosecution of any evidence \nobtained as a resulted of the tainted confession. \n\n

\n\nIn practice, and wholly apart from the much-debated issue of whether \nMiranda<\/i> inhibits police from obtaining confessions, the ruling has become largely \nsymbolic. It allows judges to scold police for misbehavior and pay lip service \nto the right against self-incrimination, while minimizing the actual effect \non police and prosecutors. Indeed, the Supreme Court, by opening various loopholes \nin what appeared to be Miranda<\/i>‘s original scope, has guaranteed that Miranda<\/i> \nwarnings would be largely ineffectual, whether or not the actual doctrine were \nto be overruled. <\/p>\n\n

But the fact that Miranda<\/i> does little either to protect defendant’s rights \nor to punish police wrongdoing does not mean it serves no purpose. <\/p>\n\n

Paradoxically, the toothlessness of the present incarnation of the Miranda<\/i> \ndoctrine has produced the unintended benefit of mitigating one of the worst \nflaws in federal criminal law, namely the grossly disparate treatment received \nby defendants depending on which judge presides over their cases. And this disparity \nwill be greatly exacerbated if Miranda<\/i> is overturned and replaced by Section \n3501, the federal statute currently at issue before the Court. <\/p>\n\n

The Miranda<\/i> Compromise <\/b><\/p>\n\n

18 U.S.C.A. \u00a7<\/font> 3501 was enacted by an outraged \nCongress in 1968 in reaction to the Supreme Court’s decision in Miranda<\/i>. It \neffectively overruled Miranda<\/i> by reinstating a case-by-case inquiry into the \n“voluntariness” of the suspect’s confession. What the drafters of \nsection 3501 didn’t anticipate was that Miranda<\/i> would evolve into a doctrine \nthat as a practical matter is acceptable to almost everyone along the political \nspectrum. As things work now, both liberal and conservative judges can live \ncomfortably with Miranda<\/i>. Conservative judges can live with Miranda<\/i>‘s bright \nline rule requiring warnings for all custodial interrogations because door number \n3 — the merely “technical” violation — allows them to follow the \nlaw without handing guilty defendants the keys to their jail cells. And liberal \njudges, using the same safety valve, can vent against police misconduct (and \nsend messages to prosecutors and police supervisors) without leaving themselves \nopen to the charge of letting too many bad guys skate on technicalities. <\/p>\n\n

Reversing Miranda<\/i> and substituting Section 3501’s “totality of the circumstances” \ntest for determining the admissibility of confessions will erase this universally \nacceptable middle ground and sharply polarize the handling of criminal cases. \nIn the absence of Miranda<\/i>, judges will have only two options: either to find \na defendant’s confession voluntary under all the circumstances and, therefore, \nto admit everything into evidence; or to find a confession involuntary and to \nsuppress not only the confession, but all evidence derived from that confession. \nGiven this stark choice, conservative judges will basically never find that \nthe police have violated a defendant’s right against self-incrimination (the \nconsequences would be too dear). But liberal judges will surely feel compelled \nto sanction police misconduct (as, for example, in the Rathbun case). And they \nwill have no choice, if they want to hold cops accountable, but to completely \ndestroy prosecutions by suppressing both confessions and all their fruits. As \na result, in cases where police have obtained incriminating statements from \ndefendants in less than savory circumstances, the outcome will depend solely \nupon that terrible moment at arraignment when the wheel spins and a judge is \nselected. Already, far too much depends on this game of judicial roulette. Overturning \nMiranda<\/i> will only raise the stakes. <\/p>\n\n\n\n<\/span>\n\n\n

\n\n\n\nEdward Lazarus is the legal correspondent for TALK Magazine, a former federal \nprosecutor, and author of Closed Chambers: The Rise, Fall, and Future of \nthe Modern Supreme Court<\/i> (Times Books 1998). \n

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