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Sherry F. Colb

The Supreme Court Rules on How Clear Miranda Warnings Must Be


Monday, March 15, 2010

Last month, the U.S. Supreme Court decided Florida v. Powell. The case took up the question whether an unusually-worded set of Miranda warnings ("MW") was constitutionally adequate. Specifically, the case asked, did the warnings convey to the suspect that he had a right to have an attorney present during – and not just prior to – his interrogation?

A 7-2 majority opinion, authored by Justice Ginsburg, found that the challenged MW were adequate. Justice Stevens dissented.

In this column, I ask a basic question that lies beneath the surface of the majority and dissenting opinions: Do courts really want suspects to understand that they may have a lawyer with them during interrogation? I suggest here that the answer is unclear now, and was unclear long before the Court decided Florida v. Powell.

The Facts

The Tampa, Florida Police Department, which carried out the arrest in this case, gives suspects in custody a standard "consent and release form," on which the following appears:

"You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

That is what Kevin Dewayne Powell heard after police arrested him in August 2004 at an apartment rented by his girlfriend. The arrest occurred when police found a loaded handgun under the bed in a room that Powell had just vacated. After police read Powell the standard Tampa Police Department Miranda form, Powell acknowledged understanding his rights and agreed to answer questions. He subsequently admitted that he did in fact own the handgun that the police had found, a firearm that he knew he was prohibited from possessing (because he had previously been convicted of a felony).

Powell later went on trial for possession of a weapon by a prohibited possessor. At trial, the government introduced into evidence his confession to the police, despite Powell's objection that it was the product of inadequate MW. The jury brought back a verdict of guilty.

Powell challenged his conviction on appeal, arguing that the MW he heard failed adequately to inform him that he had the right to consult with an attorney not only prior to but also during interrogation itself. The Florida state appellate and highest courts agreed with Powell and found that under both Florida and U.S. law, the Tampa Miranda form failed to advise Powell adequately of his right to have a lawyer with him while he was being interrogated.

The U.S. Supreme Court granted certiorari and reversed. It held that for purposes of Miranda, the Tampa Police Department's warnings did, taken as a whole, communicate to the suspect that he could exercise his right to an attorney at his interrogation.

Deeming the Warnings Adequate – Compared to What?

In its opinion upholding the adequacy of the Tampa MW, the U.S. Supreme Court parses the language at issue. When police read the form, a suspect first hears that he has a right to counsel prior to any questioning. A few sentences later, the police advise the suspect that he can exercise "any of these rights" at any time during the interrogation. Justice Ginsburg explains in her majority opinion that the phrase "any of these rights" logically extends to the right to consult an attorney, mentioned earlier in the form, and she concludes that therefore, the suspect – by the time he finishes hearing his rights – will have learned (in a somewhat roundabout way) that he may consult with a lawyer during interrogation.

If we consider this holding in a vacuum, we can easily find fault with it. A suspect is likely to feel nervous and confused when police place him under arrest, and he is therefore not well-suited to finely parsing language and drawing out each analytically-entailed implication of the police officers' words. If the suspect does not hear an explicit statement of his right to have an attorney with him at questioning, then he might well miss the fact that he has this right.

As Justice Stevens contends, moreover, even an analytically-sophisticated parsing of the Tampa form could yield the conclusion that the suspect's right during interrogation is only to "talk to a lawyer before answering any of our questions" – leading the suspect to believe that he could exit interrogation to consult with counsel (before each question), but that he could not have the lawyer with him at questioning.

One piece strangely missing from this analysis is a discussion of the warnings that are routinely given to suspects. Missing, in other words, is the "compared to what"? question: Are the Tampa MW worse than the standard Miranda rights that many suspects receive?

This is an important question, because a complete assessment of a particular warning's adequacy necessarily judges it against the standard fare that suspects receive.

Miranda Warnings: What They Must Say

In deciding Miranda v. Arizona, the U.S. Supreme Court specified that "the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." The Court added that "[a]ccordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation."

After reading this language, one can see why Justice Stevens would conclude that the Tampa Police Department form failed to satisfy Miranda. It did not make clear – in absolute terms – that Powell could have a lawyer with him at his interrogation. And Miranda required that it do just that.

In the years that followed the decision in Miranda, however, the warnings that many suspects received (with the express approval of several federal courts of appeals) and that have become familiar to many of us – inside and outside of the legal profession – have fallen surprisingly short of the standard that Miranda on its face appeared to announce. The American Bar Association, for example, provides the following answer to the question "What Are Miranda Rights?":

"Police generally read these rights to individuals about to be questioned in custody. ‘You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."

Prior to my attending law school, if police had read me these warnings, here is what I would have thought: I am now under arrest. I may remain silent if I like, but if I talk to police, then what I say can be used against me at my criminal trial. As a criminal suspect, I am entitled to a lawyer, presumably to help me defend myself at trial. If I can't afford to pay a lawyer, then someone else will pay a lawyer to represent me before any questioning. I suspect that many non-lawyers would interpret the warnings in the same way I would have.

People outside legal circles might not know that the timing of the right to an attorney has anything to do with the right to remain silent or with police interrogation. Criminal suspects may remain silent and may request a lawyer, and people know that suspects get to hear about those rights upon arrest. The standard warnings according to the ABA, however, connect the right to counsel with police questioning only in noting the timing of appointment of counsel for the indigent.

A suspect who can afford an attorney (or who believes that he can because he does not know better) has no reason to listen to the part of the MW about appointment of free counsel prior to questioning. This suspect may well understand the warnings to be an overview of what she can expect: possible interrogation, which she need not endure if she chooses to remain silent, and a lawyer for trial.

In his dissenting opinion in Powell, Justice Stevens mentions (with some disapproval) that three federal courts of appeals have specifically upheld MW that did not explicitly inform suspects of the right to have counsel present at questioning. He suggests, though, that such warnings are nonetheless better than the Tampa form that Powell heard, because the latter explicitly references timing (by saying "before answering any of our questions") and thereby misleads suspects into thinking that they may not have counsel present at interrogation.

More likely, I would surmise, leaving out any mention of timing would lead many suspects (just as, prior to law school, it would have led me) to believe that the right to counsel does not apply in the interrogation room at all.

Why Give Miranda Warnings to Suspects in the First Place?

In Miranda, several Justices dissented and worried greatly about the potentially catastrophic impact of the decision on law enforcement. In particular, Justice White was concerned that having lawyers accompany suspects at interrogation could spell the end of interrogation (and accordingly, the end of confessions).

It turns out, of course, that arrested suspects continue (with some regularity) to waive their rights and to give statements to the police who arrested them. That is at least in part because – contrary to Justice White's worry – many suspects do not invoke their right to counsel and therefore do not have an attorney with them at interrogation. (If a lawyer were present, interrogation would probably come to an abrupt halt, because a competent attorney would tell her client not to answer any questions).

Why don't suspects always ask for a lawyer? Maybe suspects are simply not interested in having an attorney with them. They want to talk to the police, possibly because they are under the mistaken impression that they can persuade their captors of their innocence. Another possibility is that suspects do not realize, even after hearing the standard MW, that their right to counsel applies to the interrogation. They could believe that if they want to talk to the police now, they must do so without an attorney. As we see from the wording of many standard warnings, this ignorance would not be entirely surprising.

As I have argued elsewhere, courts are ambivalent about interrogation and thus, about the Miranda rights as well. On one hand, the existence of the warnings makes us feel like members of a civilized nation in which people who waive their rights do so only when in possession of full information about the alternatives. On the other hand, we still very much want people to waive their rights and give their voluntary statements.

This ambivalence creates a tension. Truly informative advice of the right to have an attorney at one's side during interrogation might frustrate the second objective and motivate suspects to "lawyer up" instead of giving incriminating statements.

The consequence of this tension between competing goals could be a sort of "Miranda-washing," in which we give suspects just enough information to satisfy ourselves of our commitment to civil liberties but not quite enough for the suspect to realize the extent of what she is entitled to do. As with an informed consent session with an eager surgeon, the point may be not to give the suspect real pause or to trigger second thoughts or even genuine deliberation; it may instead be simply to transfer responsibility for what follows from the police officers to the suspect.

Looked at in this way, the Court's decision in Powell makes perfect sense. One can in fact derive the right to counsel's presence at interrogation from the words of the Tampa form, though one is unlikely actually to do so upon hearing or reading the form as written. Similarly, one can derive from the juxtaposition of the right to decide whether to answer questions (the "right to remain silent") and the right to counsel, in the standard warnings, that one can consult with a lawyer while answering police questions, even as the listener/reader may in reality never draw that conclusion. Both inferences are available, in other words, but neither is especially probable.

Looking on the Bright Side

To put a less troubling slant on the point, one could argue that it is desirable for suspects to confess, so long as the confessions are voluntary. True confessions reduce the risk of an erroneous acquittal and thereby help to bring about a just outcome. The overall objective of the MW is to reduce the inherent coerciveness of being in custody, not to advise suspects that their best interests lie in refusing to talk to the police.

Rather than focusing closely on the clarity with which police convey each individual warning (as Miranda admittedly appears to require), we might instead view the MW as a gestalt and note that when a suspect receives them, she knows that she has the essential right not to answer questions. That right – not to be compelled to provide statements – is the one right in Miranda that derives directly from the Fifth Amendment. From this perspective, the mention of counsel is icing on the cake for the suspect. With or without an attorney, she now knows that the police are prepared to honor her refusal to be interrogated.

The problem with this approach is that it is inconsistent with the words of Miranda. This inconsistency, however, is hardly unique. Since deciding Miranda, the Court has been watering down its meaning over time. Confessions taken in violation of Miranda are admissible to impeach a defendant's testimony, for example, though the Court in Miranda indicates that impeachment ought to be treated no differently from direct evidence of guilt.

Perhaps the words of the Miranda decision cannot be taken at face value, any more than the words of the standard warnings can. We have an assortment of rights meant to facilitate interrogation that complies with the Fifth Amendment. And we do best if we do not examine too carefully the specifics of how we convey those rights to suspects under arrest.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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