Define 'voluntary'

Coulter, Ann

Miranda on Trial

On Feb. 8, 1999, the mighty little 4th Circuit Court of Appeals upheld the confession of a serial bank robber in a case called United States v. Dickerson. The confession was invalid under Miranda v. Arizona, but valid under a little-noticed federal law, Section 3501 of Title 18.

Section 3501 had legislatively repealed Miranda-the worst of the Warren Court era pro-criminal decisions-just two years after it was handed down.

Enforcement of Section 3501 would do more to keep criminals off the streets than any number of federally funded midnight basketball games, or even a Safe Streets program for the President. The Supreme Court will likely agree to hear the case within the next year, and Miranda's fate will be decided one way or another.

Harvard in High Dudgeon

Naturally, therefore, the Harvard law faculty, the ACLU, and other members of the criminal lobby in America are in a high dudgeon over the Dickerson decision. They know what is at stake.

If the Supreme Court upholds Section 3501, Miranda will be gone. And so will be about 28,000 violent criminals (murderers, rapists, muggers, and robbers) and 79,000 other serious felons who now go free each year because of Miranda. Not gone exactly, but off the streets and committing no more crimes.

This is according to a series of studies conducted by Prof. Paul Cassell at the University of Utah College of Law-the only serious empirical studies of Miranda's effect ever conducted. That's how many criminals escape justice every year as a result of the Miranda decision.

The Miranda 5-to-4 decision provided that a criminal confession will be admissible only if the suspect was advised of the following four rights before being asked any questions: 1 ) the right to remain silent; 2) the fact that any statements he makes can be used against him; 3) the right to the presence of an attorney during questioning; and 4) the right to a taxpayer-funded attorney if he cannot afford one (Miranda v. Arizona, 384 U.S. 436, 444 1966).

The Miranda warnings do not make things simpler, as is often claimed. They just give the guilty two bases on which to challenge a confession in the courts, rather than one. With Miranda, confessed criminals can challenge not only whether they were given the required warnings at just the right time and under the proper circumstances, but alsoeven if they were-whether their confessions were voluntary, nonetheless.

This is not a big time-saver. Instead of being on the street fighting crime, cops spend hours on end in court for suppression hearings.

Dramatic Drop in Confessions

Moreover, Miranda has led to a dramatic drop in criminal confessions, the single most important tool in law enforcement. About one-fifth of suspects are never questioned at all because of Miranda, and another 16% invoke their rights, ending all questioning, also according to empirical studies conducted by Cassell.

Interpose a criminal defense lawyer between the law and a common criminal, and suddenly no one knows what "is" means.

In addition to reducing the number of outright confessions, Miranda has prevented cops from pinning suspects down to a particular story. As the country saw with the President this past year, it can be extremely useful just to get the perp to give some version of his story, before he knows what everyone else is going to say.

Less Is More for Criminals

The less a criminal has to say before the evidence is in, the easier is it to craft some lie, no matter how preposterous, that is theoretically consistent with the evidence and statements of his co-conspirators.

The sole statement President Clinton made before all the evidence was in-that he "did not have sexual relations with that woman. . . Ms. Lewinsky"-he eventually had to admit was a lie. But on every other point, the President was able to wait and see what every one else said, and what the evidence showed, before giving his story.

That's how we ended up with the lunatic claim that "that woman" was having sexual relations with him, but not he with her. Preposterous, but consistent.

Obviously, Congress can't legislatively overrule provisions of the Constitution, but, as luck would have it, Miranda is neither a provision of the Constitution nor even required by the Constitution.

The 5th Amendment states only that "no person. . . shall be compelled in any criminal case to be a witness against himself."

How the court got from there to an effective ban on police interrogations of suspects was somewhat circuitous, though perfectly logical, up until Miranda.

The 5th Amendment privilege against self incrimination was long understood to incorporate the common law rule that only voluntary confessions are admissible as evidence. It wasn't until the 5th Amendment had been lying around 180 years that five justices on the Supreme Court suddenly discovered a four-part requirement to determine whether or not a confession was "voluntary."

But even the Supreme Court has repeatedly held that the Miranda warnings are not actually required by the 5th Amendment, but constitute a mere "prophylactic." And this the court has said not in some obscure Rehnquist concurrence that none of the other justices read, but repeatedly, exhaustively, in innumerable cases since Miranda.

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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