Justice and Miranda Rule

In an article appearing in The Times (Editorial Pages, Jan. 25), Prof. Alan Dershowitz of the Harvard Law School attacked my office’s recommendation to the attorney general that the Department of Justice should seek a reconsideration of the Miranda decision by the Supreme Court. Because Prof. Dershowitz’s statement involves basic misrepresentations both of current law and of my recommendation, I feel I should respond.

In dismissing as inconsequential the Miranda decision’s impairment of government’s ability to protect the public from crime, Dershowitz did not deign to address the substantial body of empirical evidence that shows precisely the opposite.

In fact, studies conducted in three large cities following the Miranda decision--New York, Philadelphia and Pittsburgh--indicated that the implementation of Miranda’s rules had a major adverse effect on the willingness of suspects to respond to police questioning. Shrugging off these manifest costs to an important source of evidence in criminal cases requires either an unwillingness to face reality or indifference to the public security which depends on effective police investigations for its protection.

Dershowitz is equally far off the mark in attacking a suggestion in my office’s report that suspects might be warned that a failure to respond to police questioning could reduce the credibility of a subsequent denial of guilt. In stating that the “Fifth Amendment would be abrogated” if “ ‘failure to talk’ could later be used against a suspect,” he neglects to mention that the Fifth Amendment’s prohibition of compelled self-incrimination has not traditionally been so understood, and is not so understood today.

In fact, the Supreme Court has held in two recent decisions--Jenkins vs. Anderson (1980) and Fletcher vs. Weir (1982)--that the government may properly bring out a defendant’s pretrial silence in cross-examining him at trial, and that the jury may validly consider such silence as evidence impeaching the credibility of the defendant testimony.

Beyond this misdirection concerning a simple point of law, Dershowitz’s fixation on one suggestion in a comprehensive review of the law of pretrial interrogation fundamentally misrepresents the tenor and substance of my recommendation to the attorney general. The detailed report setting out my office’s recommendations emphasized that changes in Miranda should be approached in the context of a general rethinking of policies concerning the questioning of suspects, which could include such reforms as videotaping or recording interrogations, imposing definite time limited on questioning, and prescribing specific rules concerning behavior and demeanor in questioning suspects.

Measures like these would go far beyond the Miranda rules in ensuring fair treatment of suspects, but would predictably carry lesser costs to the public’s interest in effective police investigation. Conversely, no real progress can be expected in promoting either of these objectives in the context of custodial questioning so long as the myth persists that the specific interrogation procedures suggested in the Miranda decision must be regarded as sacrosanct and immutable.

STEPHEN J. MARKMAN

Assistant Attorney General

Office of Legal Policy

Department of Justice

Washington