Define 'voluntary'

The court has held, for example, that the Miranda warnings are "not themselves rights protected by the Constitution" (Michigan v. Tucker), that the warnings are "a series of recommended procedural safeguards" (Davis v. United States), that "Miranda's safeguards are not constitutional in character" (Withrow v. Williams), that "the Miranda court adopted prophylactic rules designed to insulate the exercise of 5th Amendment rights" (Connecticut v. Barrett), and that the Miranda exclusionary rule "may be triggered even in the absence of a 5th Amendment violation" (Oregon v. Elstad).

Indeed, the Miranda court itself acknowledged that the Constitution did not require the warnings. and invited Congress to create an alternative scheme to ensure that only voluntary confessions would be admissible as evidence. Two years later that is just what Congress did.

Let Courts Decide

Section 3501 of the Omnibus Crime Control Act of 1968 states the constitutional standard that "a confession . . . shall be admissible in evidence if it is voluntarily given:' This makes a lot of sense because that's what the constitutional rule against self-incrimination requires-that confessions be voluntary.

So the law says, the confession has to be "voluntary." Courts would look at all the evidence, including statutorily enumerated factors, and determine, the way courts determine all sorts of things all the time, whether or not the confession was "voluntary."

Only the Harvard law faculty could be stumped by a rule like that.

Requiring Miranda warnings as the only test of whether a confession is voluntary did seem to create a nice bright-line rule. It was just stupid. As stupid as a "bright line" rule that would define constitutionally protected speech as only communications that use the word "moreover."

While use of the word "moreover" would capture a lot of what is clearly speech, and would create a nice "bright-line" rule, there would also be other constitutional speech that failed to use the word "moreover" but which would be excluded.

Congress's idea with Section 3501 was-to continue the example-to let the courts determine on the basis of all the evidence if the speech was "speech." Just like the courts do with 3,000 other constitutional terms.

Free speech is an excellent thing, but so is not being raped, mugged or murdered. And thanks to Miranda, there are almost 30,000 rapists, muggers and murderers returned to the streets every year.

Copyright Human Events Publishing, Inc. Mar 5, 1999
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