Miranda Warnings

Although the famous Miranda warnings have become part of the fabric of American criminal justice, and only a few years ago were held to be part of the constitutional protections afforded to persons accused of crime, the Court this year restricted its application, and in the eyes of some, may have sounded its death knell.  Whether the results will be that dire remain to be seen.

In February the Court in Maryland v. Shatzer established more permissive rules for police who want to question a suspect a second time after the suspect had invoked the right to remain silent. The decision weakens the ruling of Edwards v. Arizona (1981) that held once a suspect invoked Miranda, any subsequent waiver of the right is deemed involuntary, making further police questioning improper.

Michael Shatzer, Sr., who was in prison on other charges in 2003, asserted his Miranda rights when police tried to question him about sexually abusing his son. The investigation was closed, but was reopened more than two years later, and he was questioned in 2006, while still in prison. Investigators again read him his rights, he signed a waiver, and made incriminating comments about his treatment of his son. Indicted on abuse charges, Shatzer sought to suppress the evidence because of the Edwards rule, and the Maryland Court of Appeals, sided with him, basing its ruling on Edwards.

Justice Scalia, writing for a near-unanimous Court (Thomas filed an opinion concurring in part and concurring in the judgment, and Stevens concurred in the judgment), carved out an exception to the rule when there is a break in custody between the first and subsequent attempts to question a subject. The Edwards rule, Scalia said, should not be an "eternal" bar against further police questioning, and in the interest of producing a clear rule to guide lower courts, held that after a fourteen day break of custody police may interrogate a suspect again without fear that evidence will be suppressed.

In the second case, Florida v. Powell, Justice Ginsburg spoke for a 7-2 majority in holding that Tampa police had satisfied the Miranda requirements even though they did not explicitly tell the suspect that he had a right to have a lawyer present during questioning. Police interrogated Kevin Powell in connection with a robbery in 2004, and told him that he had "the right to talk to a lawyer" before answering police questions, and that he could use "any of these rights at any time you want" during the interview.  Powell confessed and was convicted, but then appealed on the grounds that the warning the police had given did not satisfy the Miranda requirements, and the Florida Supreme Court agreed.

Ginsburg said that in combination the Tampa police warnings "reasonably conveyed Powell's right to have an attorney present at all times." She noted that the FBI, as well as many other jurisdictions, explicitly state the right to have a lawyer present, "but we decline to declare its precise formulation necessary to meet Miranda's requirements."

These two opinions seemed to be more like the common sense adjustments that the Court has been making on Miranda almost from the time that it was handed down in 1968.  A break in custody of a certain period, followed by a new interrogation where the warning is again given, or the warning with the wording—but not the meaning—slightly changed do not threaten the basic intent of Miranda, to inform a person of his or her rights during police questioning. The third ruling, however, Berghuis v. Thompkins, struck many people as an erosion of Miranda. Van Chester Thompkins was arrested for murder in 2001 and after reading him his rights, police questioned him for three hours.  The officers reported that Thompkins said little, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting the boy down, Thompkins said "Yes." He was convicted, but on appeal wanted the statement thrown out because he claimed he invoked his Miranda rights by being uncommunicative with the police conducting the interrogation. The Court of Appeals for the Sixth Circuit agreed and threw out the confession and the conviction.

Writing for a 5-4 Court, Justice Kennedy said that was not enough.  "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

Justice Sonia Sotomayor, wrote a strongly worded dissent, in which she was joined by Justices Stevens, Ginsburg, and Breyer, claiming that the majority decision "turns Miranda upside down." Suspects would now be required to unambiguously invoke a right to remain silent, "which counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so." She charged that the decision had no basis in precedent, and was inconsistent with the principles of a fair trial.

Defense attorneys immediately objected to the ruling, while police and prosecutors applauded, since it greatly expands the power of law enforcement officials during an interrogation.  The original basis for Miranda was to ensure that suspects understood their rights, and it required a positive waiver of those rights before a confession or other damaging information could be admitted at trial. The burden was on the police to show that the rights had been read and understood, and that resulting evidence had been secured in a lawful manner.  Now the burden will be on the suspect to assert rights, and while no one is worried that habitual criminals will fail to assert their rights, there is concern for minorities and poorly educated people taken into custody who are not familiar with police procedure.  Whether Thompkins will be the start of further erosion, or merely an adjustment that will have minimal effect, remains to be seen.

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