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Miranda Now Misses One Base : Supreme Court Gives Police a Trap for the Not-So-Smart

<i> Yale Kamisar is a professor of law at the University of Michigan. </i>

Duckworth vs. Eagan, the only Miranda ruling case that the U.S. Supreme Court decided this year, has gone largely unnoticed. It is not hard to understand why.

The opinion was announced the same day the court decided two controversial death-penalty cases and only a short time after it overturned Gregory Johnson’s flag-burning conviction--and at a time when most of the country was still in a white heat over that event. Finally, Chief Justice William H. Rehnquist, who wrote the opinion, seemed to regard Duckworth as a rather piddling case.

Duckworth strikes me as much more significant, and troublesome. The issue presented was not whether a “talismanic incantation” of the Miranda warnings is required. (Of course it is not.) Rather, it was whether the substance of an important feature of the Miranda warnings--the right to have a lawyer appointed before any questioning--was ever effectively conveyed to the suspect.

When that suspect, Gary Eagan, agreed to go to police headquarters in Hammond, Ind., for questioning about his possible involvement in a murder, he was told that he had the right to the presence of a lawyer even if he could not afford one. But then the police added: “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”

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A majority of the Supreme Court concluded that the warnings “touched all of the bases required by Miranda.” I think not. The warnings missed one base--and by a substantial margin.

According to Miranda, if the police propose to question a person, they must inform him that he is entitled to a lawyer and that “if he cannot afford one, a lawyer will be provided for him prior to any interrogation.” But the police told Eagan in effect that if he could not afford a lawyer one would not--indeed, could not--be provided for him before or during any questioning.

To be sure, Eagan was told at the very outset that he had a right to talk to a lawyer before the police asked him any questions. But taking into account what he was told in the next breath, Eagan might plausibly have concluded that since indigent persons like him had no way of getting a lawyer at this stage, there was no point in asking for one. (Wasn’t that what the police wanted him to think?)

Now, if Eagan were a smart, sophisticated fellow, he might have dissected the Hammond police warning the way Rehnquist did and figured out that he could stop the questioning--indeed, prevent the police from ever questioning him again unless he initiated further communication with them--simply by asking for a lawyer, regardless of when he actually obtained one. But not-so-smart people need help understanding that asserting one’s right to a lawyer is the significant act, not the actual availability of a lawyer. The warnings used in this case did not provide that help.

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Rehnquist saw nothing sinister about the “if and when you go to court” language. That information, he said, “simply anticipates” a question a suspect might ask: When will I actually get a lawyer? After all, the information the police supplied “accurately described the procedure for the appointment of counsel in Indiana.”

Yet if police departments or individual officers are allowed to “improvise,” if they are permitted to “anticipate questions” a suspect might ask, the Miranda system willcollapse. For the police will only “improvise” in one direction. And they will only “anticipate” questions the answers to which further their interests, not the suspect’s.

I say this not because the police are more dishonest than the rest of us. I say it rather because they are no less human than the rest of us--no less inclined to further their own interests if given the leeway to do so.

The best explanation for the failure of the Hammond police to abandon their version of the warnings in favor of the more common variety is the belief (and, I think, a well-founded one) that their formulation tends to confuse unsophisticated, indigent suspects and tends to induce them to forgo the right to counsel at the critical moment. The Hammond police continued to use warnings disapproved by the federal court of appeals for their circuit, and the state’s attorneys continued to defend their use because these warnings give law enforcement officials an advantage the Warren court never would have allowed--and because they hoped (perhaps expected) that a “new” court, one disenchanted with Miranda, would “let them get away with it.”

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This year their hopes (and perhaps their expectations) were fulfilled. What next?

The Hammond police sent Eagan the wrong message (or at least an unnecessarily confused and misleading one). Far more important, however, in upholding those “pretzel-like” warnings, the Supreme Court has sent law enforcement officers and front-line courts the wrong message: Don’t worry. Be happy. You have a good deal more room to “play with” the Miranda warnings than most of you ever imagined.


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