Friday, September 3, 2010


Excerpt from ABA Journal (full article here):
You have 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. And so on and so forth.

Just about every American can identify the Miranda rights; they are almost as familiar as the Pledge of Allegiance. But three U.S. Supreme Court decisions this term show that the court is continuing to slice off pieces of the famous 1966 criminal rights case, Miranda v. Arizona.

The high court ruled this term that a suspect's request for a lawyer is good for only 14 days after release from custody, that police do not explicitly have to tell suspects they have a right to counsel during an interrogation, and that criminal suspects must unambiguously announce to police that they wish to remain silent.

"These three cases indicate the court is not going to expand Miranda an inch, and if they can construe it to cut back slightly, they will," says Rory Little, a specialist in criminal and constitutional law at the University of California's Hastings College of the Law in San Francisco.

Historically, Miranda warnings have served as a procedural safeguard, articulated by the Warren court "to secure the privilege against self-incrimination," including the right to remain silent and the right to have counsel present during interrogations.

The court's conservative majority has been outspoken about its distaste for the case, and in at least two Miranda cases argued during this past term, they've drawn broad support from the rest of the court. In the process, say many civil rights advocates, the Roberts court has subverted Miranda's original intent.

"This term you had three Miranda cases. None of the cases comes out in favor of the defendant and in some sense that means they did not come out in favor of Miranda," Little says.

In February the court decided Florida v. Powell and Maryland v. Shatzer within one day of each other. In Powell the defendant was convicted of being a felon in possession of a firearm and sentenced to 10 years in prison. Powell appealed his conviction, arguing the written form of the Miranda warning used by Tampa, Fla., police was invalid because it did not explicitly indicate that he had a right to have an attorney during questioning.

The court disagreed, holding 7-2 that while Miranda requires a suspect "be warned prior to any questioning" and "that he has the right to the presence of an attorney," semantics aren't the issue. What's important, the court says, is whether the warning "reasonably" conveyed Miranda rights to a suspect.

"It's unreasonable to expect that a rote recitation of Miranda rights translates into meaningful understanding of those rights," says Chicago defense attorney Terence Campbell, a member of the National Association of Criminal Defense Lawyers. "Custodial interrogations are, by their nature, intended to be intimidating and stressful, which can lead to false or coerced statements."

Shatzer involved the interrogation and subsequent confession of an incarcerated man for the sexual abuse of his 3-year-old child. Shatzer had been interrogated three years before for the same crime and at that time had invoked his right to remain silent. At trial, Shatzer moved to suppress his confession, arguing that his invocation of his Fifth Amendment right years before was still applicable.

With Justice Antonin Scalia writing the opinion, a unanimous court held against Shatzer, and further articulated the seemingly arbitrary rule that the appropriate period of time for a person to be re-acclimated to normal life, and consequently free from the pressures of investigative custody, was two weeks.

"On the facts, no one was going to vote for Shatzer," Little says. "What's disturbing is the broader implications of the decision. When Scalia writes, he writes broadly in ways that can affect future cases. On the broad writing on Miranda [this term], the majority goes too far."

Berghuis v. Thompkins, the last Miranda case of the term, turned out to be the most contentious, as the more moderate justices took stock of the restrictions already implemented by the court.

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