A Times Editorial

Maintain Miranda

The warning against self-incrimination has worked well for 34 years. The Supreme Court should not undo this ruling that helps to protect Americans' constitutional rights.

© St. Petersburg Times, published May 7, 2000

The U.S. Supreme Court is wrestling with whether Miranda warnings -- the universally known police statement that begins: "You have the right to remain silent" -- are an essential part of our right against self-incrimination. If the court decides the warnings are not a constitutional imperative, it will be a serious blow to the Fifth Amendment.

In the years prior to 1966, the year the Supreme Court decided Miranda vs. Arizona, courts relied on the "totality of the circumstances" test to determine whether a confession was given voluntarily. Essentially, each confession would be vetted on a case-by-case basis to determine whether interrogation practices precluded a suspect from making a free and rational choice. But this approach turned out to be unworkable and did little to safeguard suspects from highly isolating, intimidating and even brutal interrogations.

In the Miranda opinion, Chief Justice Earl Warren, writing for the majority, announced a set of protective rules that would breathe life into the right against self-incrimination. By forcing police to give suspects prior notice of their rights and an opportunity to exercise them, Warren said the Fifth Amendment would be effectuated.

History shows the court was right. In the decades since the decision, the use of physical and psychological abuse by police to force a confession has gone from a typical tactic to an aberration. While today's policing agencies don't relish having to give Miranda warnings, most have made their peace with the ruling. The truth is, 80 to 90 percent of suspects still confess even after having been told they don't have to. Confession, even when it's against self-interest, is a powerful human urge.

Why then is the Supreme Court reviewing the Miranda warnings with an eye toward tossing them out? Because of one zealous law professor and his indefatigable campaign to resurrect a moribund law Congress enacted to defeat Miranda.

The Miranda decision left open the possibility that Congress and the states could choose preventive rules other than the specific Miranda warnings to guard against coerced confessions. Congress read this as a loophole and in 1968 enacted Section 3501 replacing Miranda warnings with what had existed before the ruling: a review by the judge into whether a confession was voluntary.

Since its passage, the law has been ignored as presumptively unconstitutional. But Paul Cassell, professor of law at the University of Utah, has made it his professional life's work to get it noticed. He used the case of Dickerson vs. U.S. as a vehicle to argue that Section 3501 supplants Miranda warnings. And, in an unusual twist, it was he, not the government, who argued that point before the Supreme Court last month.

Reports of the oral argument reveal the court is split on this issue. However, the most valid interpretation of Miranda was articulated by Justices Ruth Bader Ginsburg and David Souter who asserted the Fifth Amendment requires a "knowing waiver." According to the justices, a suspect must know his rights and have the opportunity to exercise them for the Fifth Amendment to be satisfied. The Miranda warnings are one way to do it but legislative bodies could choose another. What is not an option is to return to a system where the question of whether a confession was voluntary is examined after the fact.

The Miranda decision has stood for 34 years for the proposition that even in the most intimidating environment imaginable -- a police interrogation room -- the citizen has rights the government must respect. The Supreme Court should not undo this abiding symbol of American rights.

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