The 2003-2004 U.S. Supreme Court Term And The Fifth Amendment Privilege Against Self-Incrimination
(PUBLISHED IN VIRGINIA LAWYER, OCTOBER 2004)
by Afshin Farashahi and David L. Arnold
INTRODUCTION
Almost since the day it was handed down, the nation's "most famous criminal procedure decision"[1] has been under attack by the very body which made famous the words "you have the right to remain silent." For more than thirty years, the Supreme Court weakened the force and implications of its landmark decision, Miranda v. Arizona,[2] through a series of blows to the reach -- if not relevance -- of the case.[3] Four terms ago, the Court was finally poised to land a knockout punch to the famous case as it considered argument in Dickerson v. United States.[4] In a surprising turn of events, the Court not only upheld Miranda, but deemed it to be "a constitutional decision,"[5] rather than a mere "prophylactic" measure designed to protect Fifth Amendment rights.[6] The 2003-2004 Supreme Court term, however, demonstrated that the Court had no intention of expanding the scope of this "constitutional decision." In three cases addressing the scope of Miranda,[7] the Court reversed its course in Dickerson and reverted to its old ways by further limiting Miranda's reach, while disapproving of only the most egregious violations of Miranda's original intent.
This article will provide a brief overview of Miranda as it emerged nearly 40 years ago and of the subsequent cases which significantly limited its reach. It will then examine its status through the lens of Dickerson and the most recent Supreme Court decisions. Finally, the article suggests some lessons from these most recent cases and proposes strategies for both prosecution and defense counsel who are faced with confession issues.
BACKGROUND
In order to place the three cases from the past term into context, a quick overview of Miranda and its progeny is provided below.
Miranda v. Arizona
The landmark 1966 Supreme Court decision of Miranda v. Arizona[8] established new procedural requirements for all law enforcement officials. The Court expressed great concern over protecting "precious" Fifth Amendment rights and promulgated a series of safeguards designed to permit the accused a "full opportunity to exercise the privilege against self-incrimination."[9] In a nutshell, the Court mandated that, as a prerequisite to custodial interrogation, the police advise all suspects of the following: the right to remain silent, the explanation that anything said can and will be used against the individual in court, the right to consult an attorney and have an attorney present, and the right to have an attorney appointed if the accused could not afford one.[10] Law enforcement officers were to refrain from interviewing suspects until they were advised of these rights and waived them or received counsel.[11] If at any time prior to or during the interrogation the suspect indicated that he wished to remain silent, questioning was to cease.[12] Likewise, if the suspect asked for a lawyer, the interrogation was to cease until a lawyer was present.[13] The required warnings and the necessary waivers became "prerequisites to the admissibility of any statement made by the defendant."[14]
In the years since, the Court has been compelled to deal with the myriad of issues that Miranda created, but did not address. For example, when is a suspect in "custody?"[15] When does police questioning actually involve "interrogation?"[16] And are there any exceptions to Miranda?[17] For the most part, the Court's answers to these and other questions have significantly confined the Miranda decision. The Court has limited the instances when a suspect is considered to be in "custody"[18] and when a suspect is considered to be "under interrogation."[19] The Court has also allowed statements obtained in violation of Miranda to be used for impeachment purposes.[20] It has imposed increasingly stringent standards on the invocation of a suspect's rights[21] and has created a "public safety" exception to Miranda.[22] Finally, if a suspect invokes his right to remain silent, the police may still approach him later for questioning under certain circumstances.[23]
The steady march towards the erosion of Miranda has not been without detours, however.[24] In Edwards v. Arizona, [25] for example, the Court held that once a suspect is advised of his rights and invokes his right to counsel, then the interrogation must cease until counsel has been provided. In Arizona v. Roberson,[26] the Court extended the Edwards bar to further interrogation to all crimes for which the suspect may be investigated. But the impact of Edwards and Roberson has been minimized because the Court has made it relatively easy to show that the suspect "initiated" the interview with the police after having first invoked his Miranda rights.[27]
Dickerson v. United States
In 1968, two years after Miranda was decided, the U. S. Congress passed 18 U.S.C. § 3501, a law intended to overrule the Supreme Court decision.[28] According to this legislation, the admissibility of a confession in federal prosecutions was to be determined by whether the statement was made voluntarily.[29] Congress based this legislation on the Court's statement in Miranda that the Congress and the state legislatures were "free to develop their own safeguards for the privilege, so long as they are fully as effective as those described" in the opinion.[30] Miranda held that other procedures could accomplish the same purpose, and § 3501 made the Miranda warnings just one of several factors for the courts to consider in determining whether a confession was voluntary.[31] In other words, even if the suspect was not advised of his rights, his confession could still be admissible if, based on criteria established by § 3501, the trial court determined that the confession was voluntary.[32] This legislation, however, was generally not utilized by the federal authorities.[33]
The 2000 case of Dickerson v. United States,[34] which originated in the Fourth Circuit, finally presented the Supreme Court with the opportunity to determine the validity of the 1968 legislation. Petitioner Charles Dickerson, charged with several serious crimes, was granted a motion to suppress his confession on the ground that he had not received a Miranda warning.[35] The Fourth Circuit reversed the suppression, holding that the statement was voluntary pursuant to a § 3501 analysis.[36] The Fourth Circuit went on to conclude that Miranda was not a constitutional holding and that Congress could therefore determine admissibility of a confession through legislation.[37]
The Supreme Court was presented with the perfect opportunity to finally abrogate the rule that had been eroding for thirty-four years. Given the trend of limiting the force and effect of Miranda, an affirmation of the Fourth Circuit's decision seemed almost a foregone conclusion. But the Court ruled that Miranda was a "constitutional decision" and could not be overruled by an act of Congress,[38] and the Court declined to take the opportunity to overrule Miranda itself.[39] In its analysis, the Supreme Court traced the history of Miranda and went to great lengths to establish error by the Fourth Circuit.[40] At the end of the day, Miranda survived, even if as only a shell of its former incarnation. Although the congressional legislation only applied to federal prosecutions, if the Supreme Court had allowed the legislation to stand, then the states would have been free to enact their own Miranda busting legislation.
2003-2004 U. S. SUPREME COURT CASES ON MIRANDA
Although Dickerson emphasized the importance to the Supreme Court of procedural safeguards afforded by Miranda, the 2003-2004 session made clear that the Court had no intention of expanding (or, some would argue, restoring) a suspect's constitutional rights during the course of interrogation. In United States v. Patane,[41] the Court held that the fruits of an unwarned voluntary confession were not fruits of the poisonous tree and, therefore, were not worthy of exclusion. Yarborough v. Alvarado[42] addressed the issues of age and experience of a defendant as they relate to his custody status. And in Missouri v. Seibert,[43] the Court demonstrated its willingness to reign in police practices when they played too fast and loose with the Miranda requirements.[44]
United States v. Patane
Patane is probably the most significant of the three Miranda related decisions handed down by the Court this past term. The police arrested Samuel Patane at his home for violation of a restraining order.[45] As one officer attempted to advise him of his rights, Patane interrupted and stated that he knew his rights.[46] The officer then asked Patane about a pistol suspected to be in his possession.[47] After some discussion, Patane told the officer where to find the gun.[48] Patane was then indicted for possession of a firearm by a convicted felon and sought to suppress the firearm as fruit of an unwarned statement.[49]
In this case, the Court was asked whether physical evidence recovered as a result of voluntary custodial statements, obtained in violation of Miranda, should be suppressed. In the 1974 case of Michigan v. Tucker[50] and the 1985 case of Oregon v. Elstad,[51] the Court declined to apply the fruit of the poisonous tree doctrine to Miranda violations, relying on the proposition that Miranda was a "prophylactic" rule. The issue gained significance again in 2000 when the Dickerson decision decreed Miranda to be a "constitutional decision."[52] The sense of the legal community was that with the elevation of Miranda from a "prophylactic" rule to "constitutional" one, the fruit of the poisonous tree doctrine should now apply to Miranda violations and physical evidence recovered pursuant to an unwarned custodial confession should be suppressed.
The Patane Court declined to apply the fruit of the poisonous tree doctrine and held that the failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements.[53] The Court minimized the impact of Dickerson and repeatedly referred to Miranda as a "prophylactic" rule.[54] The Court also took note of the "continuing validity" of Tucker and Elstad, cases which had declined to apply the fruit of the poisonous tree doctrine to Miranda violations.[55] The Court also relied on the proposition that the Fifth Amendment does not apply to nontestimonial evidence.[56]
Yarborough v. Alvarado
Alvarado[57] presented the issue of whether the age and inexperience of a suspect should be factors in determining whether a suspect is in "custody" for the purposes of Miranda. Michael Alvarado, a 17 year old juvenile at the time of his arrest, was brought to the police station by his parents for questioning regarding a murder.[58] Out of the presence of his parents, he was interviewed for two hours by police without being advised of Miranda rights and was then released.[59] During the course of the interview, however, he made several incriminating statements.[60] Alvarado was charged with murder and attempted robbery, and sought to suppress the statements that he made during the interview.[61]
The issue raised by this case was whether the defendant was in custody during the interview, thereby creating the requirement of a Miranda warning. If the Court determined that the defendant was not in custody, then police were not required to advise him of his Miranda rights. The Court reaffirmed the principle that the Miranda custody test is an objective one,[62] and then went on to rule that the person's age and inexperience with law enforcement were not factors in determining the custody question.[63] But the Court allowed that these two factors may be considered in determining whether the suspect made a voluntary waiver of his rights.[64]
Missouri v. Seibert
Patrice Seibert was questioned for murder by the police without first being advised of her rights.[65] After she confessed, the police then advised her of her rights and obtained a second confession.[66] This "question first" strategy of withholding Miranda warnings until after interrogating and eliciting a confession from a suspect was an established police practice.[67] This method allowed the police to obtain the confession they sought without first reading the suspect her rights, but then using at trial a second immediate confession obtained after a Miranda warning was given.[68]
Seibert addressed the legality of this tactic. The State of Missouri argued that the legitimacy of this method derived from the Supreme Court decision of Elstad. (In that case, the police had obtained a brief, unwarned statement at the suspect's house and then had obtained a statement in compliance with Miranda at the sheriff's office.[69] ) But the Court distinguished Elst