Could the Reading of Suspects’ Rights Be the Wrong Thing to Do?

Today, the U.S. Supreme Court will hear oral arguments in Dickerson vs. United States, a case that could put an end to the requirement that police officers give to suspects taken into custody the famous Miranda warning: “You have the right to remain silent. . . .”

Defenders of Miranda, from a 1966 decision by the Earl Warren Supreme Court in the case of Miranda vs. Arizona, insist that because the case is grounded on the 5th Amendment’s privilege against self-incrimination, the only way to overturn it is by amending the Constitution. Proponents of 3501--the provision in the federal Criminal Code that “overrules” Miranda and is at the heart of the current case before the high court--emphasize that the Miranda warning is not itself a constitutional right but only a standard designed to safeguard or to provide practical reinforcement for the privilege against self-incrimination. Therefore, they argue, Congress has the power to overturn Miranda by legislation.

The Miranda warning is the best-known aspects of that famous case, but they are not the most important aspects. As the University of Chicago Law School’s Stephen J. Schulhofer has pointed out, Miranda contains a number of conceptually distinct steps:

* Informal pressure to speak, no less than official pressure to do so, can constitute “compulsion” within the meaning of the 5th Amendment.

* This element of informal compulsion is inherent in police interrogation of a person taken into custody.

* The privilege against self-incrimination applies to the police station as well as to the courtroom.

* Police custodial interrogation as typically conducted--the questioning officer acts as if he has a right to an answer and gives the impression that it will be so much the worse for the suspect if he does not answer--is incompatible with the privilege.

* To comply with the 5th Amendment, something must be done to dispel the inherent pressure of custodial interrogation.

* Although Congress and the states may devise other equally effective procedures, in the absence of suitable alternatives the now-familiar warning must be given.

The Miranda warning has caught heavy fire. Yet the core of Miranda is in the first four or five of those steps, not the last one. Moreover, the warning was designed to help the police, not hurt them. The warning supplemented the new ruling that the self-incrimination clause was applicable to the station house; they spelled out one way that the police could continue to conduct interrogations without facing the risk that valuable evidence would be lost.

Yet suppose the Warren court had not supplemented its new doctrine, had not established a set of specific guidelines to help the police conduct interrogations. Suppose, instead, that after informing Congress and the states that “unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice,” the court had stopped right there.

Suppose the court had simply left it up to Congress and the states to develop their own procedural safeguards for protecting the privilege against the self-incrimination during custodial interrogation. And suppose, finally, that instead of responding to the court’s invitation Congress did what it did when it drafted 3501--simply enacted legislation purporting to turn the clock back to pre-Miranda days.

If this had occurred--if Miranda had never prescribed the now-familiar warning but simply left it up to Congress and the state legislatures to devise acceptable procedural safeguards on their own--critics of Miranda would not have the Miranda warning to kick around anymore. In that event, I doubt that anybody would seriously argue that Congress could overturn Miranda by simple legislation.

Yet why should Miranda be vulnerable to legislative overruling because--unlike some earlier confession cases that left the police befuddled--the opinion took great pains to tell law enforcement officials how they could continue questioning custodial suspects instead of leaving them to guess about how they might stay on the safe side of the constitutional line?