Fifty years ago today, the United States Supreme Court handed down the famous or infamous (depending on your point of view) decision in Miranda v. Arizona. The immediate result of the decision in the lead case was that the conviction of a rapist was vacated and the case sent back for retrial -- meaning the victim had to endure testimony and cross-examination again -- even though Miranda's confession had been examined and held to be voluntary under the totality of the circumstances. Fortunately, Miranda was convicted on retrial without the confession. Unfortunately, he was paroled after serving only a fraction of his sentence. He was killed in a bar fight in Phoenix in 1976.
Justice White, in dissent, noted the obvious truth. "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment."
In Dickerson v. United States (2000), the Supreme Court made no attempt to defend Miranda's indefensible fiat as an original matter. "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."
By the decision's own terms, though, the regime it lays down is not the last word:
Justice White, in dissent, noted the obvious truth. "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment."
In Dickerson v. United States (2000), the Supreme Court made no attempt to defend Miranda's indefensible fiat as an original matter. "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."
By the decision's own terms, though, the regime it lays down is not the last word:
We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it.The most obnoxious subsidiary rule around Miranda is that a person's refusal to say what he knows about a crime cannot be considered later in judging his credibility. If he really was in Poughkeepsie at the time he would say so upon arrest, but if he needs to line up false testimony of an alibi he will need to hold off until he can confirm who will back him up and where. If we care about the truth, shouldn't the trier of fact be able to consider that valid, powerful fact?
The British Parliament provided the opposite in its statutory version of Miranda, as described in this 2009 article by Lauren Altdoerffer, then an attorney with CJLF.
So here is a simple proposal for a modernization of Miranda. Yes, we can go ahead and video-record interrogations in major cases. But in return we should follow the lead of our British cousins on the warnings and the permissible inferences.
You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.Isn't that better?
Scalia's dissent in Dickerson is one of his best.