The Supreme Court is considering making the Miranda warning more explicit.
The Supreme Court on Monday seemed headed toward telling police they must explicitly advise criminal suspects that their lawyer can be present during any interrogation.
The arguments in front of the justices were the latest over how explicit the Miranda warning rights have to be, as justices debated whether the warnings police gave Kevin Dwayne Powell made clear to him that he could have a lawyer present while being interrogated by police. Powell was convicted of illegally possessing a firearm after telling police he bought the weapon “off the street” for $150 for his protection. Before his confession, Powell signed a Miranda statement that included the statements “You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”
The Florida Supreme Court overturned the conviction on grounds the Tampa police didn’t adequately convey to Powell that he was allowed to have a lawyer with him during questioning. Joseph W. Jacquot, Florida deputy attorney general, argued that the warning given Powell “expresses all the rights required under Miranda.”
Justice Stephen Breyer clearly disagreed. “Aren’t you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?” Breyer said. “I mean, it isn’t as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?”
Different courts have came down on different sides on what exactly should be said, Justice Sonia Sotomayor said. “We’ve got a split of circuit courts and state courts on whether this reasonably conveys or not. Shouldn’t that be enough of an ambiguity for us to conclude it can’t reasonably convey, if there’s this many courts holding that it doesn’t?” Justice Sonia Sotomayor said.
Powell’s lawyer, Deborah K. Brueckheimer, said that the warning Powell was given from Tampa, Fla., police gave him the impression that “once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn’t tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning.”
Justice Scalia called Brueckheimer’s argument “angels dancing on the head of a pin.” “You are saying, ‘Oh, if he had only known. Oh, if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed,’” Scalia said. “I mean, doesn’t that seem to you quite fantastic?”
Miranda rights have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can’t afford one. But those requirements likely will continue to be parsed by lawyers and judges.
For example, Justice Samuel Alito pointed out that most police start off Miranda rights by saying “You have the right to remain silent.” But, Alito said, what happens if someone begins talking to the police and then decides that they want to be silent? “Once you break your silence, there is nothing in there that says you have the right to resume your silence,” Alito said.
“We could write that down. It could be the next case,” Justice Anthony Kennedy said to laughter.
This is the third Miranda case the court has heard this year. The justices heard arguments earlier over whether officers can interrogate a suspect who said he understood his rights but didn’t invoke them, and whether a request for a lawyer during interrogation can expire after a lengthy period of time. Decisions in all three cases are expected next year.
The case argued Monday is Florida v. Powell, 08-1175.
While I fully support reading suspects the Miranda warning — it not only ensures they are aware of their rights but encourages better police work — it was never intended to be a Law School for Dummies crash course. Beyond that, the Miranda rights have been so ingrained in our consciousness through the popular culture that most of us can cite them verbatim off the top of our heads. It’s just absurd that people who are told that they have a right to remain silent and a right to an attorney don’t understand that they have a right to be silent when their attorney isn’t present — much less that we should create an ex post facto requirement that this connection be explicitly stated, thus potentially wiping out hundreds of confessions based on an “error” police could never have been expected to avoid.
Rather than turning the Miranda warnings into a novella, a more profitable avenue for the Court to travel would be to radically reduce the ability of police to lie to suspects in order to coerce them into confession. If, for example, Powell was “given the impression” that he had no right to have his attorney present during interrogation because police told him that, the problem isn’t with his Miranda warnings but with dishonest police.
In terms of the warning itself, it would also be useful to simply have SCOTUS tell us precisely what officers should read rather than having it subject to scrutiny after the fact. While that’s typically not what courts do, the fact of the matter is that Miranda was a classic case of legislating from the bench, inventing rule on the basis that it’s good public policy rather than because it’s Constitutionally specified.
