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High Court Points to Possibly Scaling Back Miranda Right

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Times Staff Writer

Government lawyers Tuesday urged the Supreme Court to give the police more freedom to question suspects without first warning them of their right to remain silent, and most of the justices sounded as though they were inclined to do so.

“Miranda does not require officers to give the warnings,” said Chief Justice William H. Rehnquist. “It is a conditional thing.”

If an officer warns a suspect of his rights, and the suspect talks, his words may be used against him in court. But a failure to give the warning does not mean that all the evidence must be thrown out, he added.

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“I respectfully disagree,” replied Jill M. Wichlens, an assistant public defender from Denver.

She argued that the court’s own opinions make clear that Miranda warnings are required, and the penalty for failing to warn suspects of their rights is that police and prosecutors may not use any confessions or evidence that they obtain.

The exchange came as the justices heard arguments in two cases that could redefine the Miranda rules. Two veteran Justice Department lawyers and a Missouri state prosecutor urged the justices to adopt a scaled-down version of the Miranda warnings.

Under this approach, police would be free to question suspects without warning them of their rights. If the suspect confessed, the officer could then read the rights warning and ask that the confession be repeated.

Two public defenders called on the court to maintain the Miranda decision as a constitutional requirement for the police. They relied heavily on comments in the court’s earlier opinions. But on several occasions, the justices interrupted to say that that was not what had been intended.

Three years ago, Rehnquist wrote an opinion for the court upholding the 1966 decision in Miranda vs. Arizona as having set a “constitutional rule” that could not be overturned by Congress. However, on Tuesday, he stressed that Miranda did not impose a constitutional “requirement” on the police.

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The Miranda vs. Arizona decision, known to generations of Americans from TV cop shows, says police must tell suspects of their right to remain silent and warn them that anything they say can be used against them. Suspects also must be told of their right to a lawyer, and informed that one will be appointed for them if they cannot afford one.

Justices Antonin Scalia, Anthony M. Kennedy and Sandra Day O’Connor said they saw no problem with the police questioning suspects, so long as force and pressure were not used.

“What’s wrong with it if the primary purpose [of Miranda] is to prevent brow-beating?” Scalia asked.

Amy M. Bartholow, a public defender from Missouri, said police there engaged in “deliberate” and “systematic” violations of Miranda by interrogating defendants before warning them of their rights.

“So what, if it is not coerced?” Kennedy asked.

O’Connor pointed out that most lower courts have allowed the use of evidence, such as a murder weapon or drugs, that police find by questioning suspects without warning them of their rights. “It hasn’t resulted in disaster,” she said.

But several of the more liberal justices said that in practice, the Miranda decision would become meaningless if there were no penalty for violating it.

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“Is there any reason for a police department not to adopt a policy that says, ‘Never give the Miranda warnings until the suspect confesses?’ ” asked Justice John Paul Stevens. “There would be nothing to lose.”

Irving Gornstein, a Justice Department lawyer, said the court should not reject voluntary confessions. “There is a serious cost to the administration of justice to exclude such information from the jury,” he said.

Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed with Stevens and said they were troubled by the notion of encouraging the police to deliberately violate the Miranda rules.

In U.S. vs. Patane, the court will decide whether physical evidence can be used against a suspect who was not advised of his rights. Police in Colorado went to the apartment of Samuel Patane, handcuffed him and questioned him without fully warning of his rights. He told them he had a pistol in his bedroom.

At issue is whether the gun can be used as evidence, and most of the justices, including Breyer, sounded as though they would vote to uphold the use of such evidence.

The second case, Missouri vs. Seibert, tests a new police tactic of two-stage questioning. First, the suspect is arrested and questioned at the station house without being warned of his or her rights. Then, if the suspect says something incriminating, the officer delivers the rights warning and asks the suspect to confirm the incriminating statement.

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Patrice Seibert, a St. Louis woman, was questioned by a police detective about a mobile home fire in which her mentally disturbed son died.

Eventually, she admitted she knew that the fire was set by another of her sons. After making this confession, she was warned of her rights and repeated the confession.

The justices sounded closely divided on whether to uphold such deliberate evasions of the Miranda rules. As in other rulings, O’Connor will probably cast the deciding vote.

The mother made a “knowing and voluntary waiver” of her rights and repeated the confession, O’Connor observed.

But Bartholow, the public defender, warned that the justices would be opening the door to evading the Miranda rules if they uphold such tactics. “I guarantee if the court says it’s OK, it will become embedded in police practice, just like Miranda. They would have an incentive not to warn,” she said.

The justices will hand down opinions in the cases in several months.

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