Slate magazine’s Emily Bazelon has a good article on Miranda in the context of the recent capture of a suspect in the Boston marathon bombing.
But it’s easy to overstate both the importance of Miranda either to the defendant or to the government in any particular case, including a high profile case in which there have been such an overwhelming amount of resources poured into the investigation and capture of a suspect.
Miranda arose out of a particular historical context – police abuses and coerced confessions in the early part of the century led to a series of cases whereby the Supreme Court slowly but surely recognized that a defendant was particularly vulnerable in the hours or days between being arrested and appearing in public at court. First, the Supreme Court recognized this right in the federal context. Then the Supreme Court applied this right – via warnings – to the states.
Miranda was and continues to be important, but not nearly as important as the culture would have us believe. Countless police procedurals and movies over the past forty years have created the impression among the public that “technical” violations police procedure – MIRANDA! – mean that the guilty routinely avoid prosecution and punishment. Damn you, Defendant, and your crafty defense lawyer!
Miranda has become a symbol of weakness on the part of the government, such that we now have Lindsey Graham and John McCain inveighing against the Obama Administration for deigning to advise defendants of their rights, as if the president personally makes that decision in the first place, and as if advising the defendants of their rights is something only a weak-kneed Democrat would do.
In fact, Miranda is far less important in the scheme of criminal justice than either McCain or Graham on the right or people on the left who cherish it would have you believe. Miranda is better than nothing, but it’s pretty weak tea.
Why? Well, from a practical point of view, in most criminal prosecutions, police have other evidence. In the case of Dzhokhar Tsarnaev, police certainly have witnesses, video, and physical evidence that links him to the crimes he is alleged to have committed.
Miranda merely requires that he be advised of his rights before answering any in-custody interrogation. If police fail to advise him (and no “public safety exception” exists which we’ll discuss later), any statements he makes may not be used against him in his own trial. But Miranda does not require police to forget what they heard. They can use his un-Mirandized statements to charge, arrest, and try other people. They can use his un-Mirandized statements to locate other undetonated bombs. They can use his un-Mirandized statements to conduct military operations abroad at terrorist cells, assuming this is something more than two young men committing murder.
In other words, Miranda has very limited value and only in the case involving the un-Mirandized defendant. In addition, so long as police have an independent source of the same information, they can use evidence even if Tsarnaev also tells them the same things. (There is always the danger that police will later say they had an independent source of information which they really learned solely by interrogating an un-Mirandized Tsarnaev. But that’s a separate problem. And, as Orin Kerr writes, the actual physical evidence obtained as the result of an un-Mirandized statement can be used (United States v. Patane, 542 U.S. 630 (2004) while the statement may not be.)
So, in short, police – especially in this situation where millions of dollars of resources are being devoted to the investigation and prosecution – have plenty of ways to get a conviction without resorting to the use of un-Mirandized statements at trial.
If Lindsey Graham and John McCain and others on the right want to question suspects without advising them of their rights, they should have the courage of their convictions. Which is to say they give up the power to use those statements in a trial against those un-Mirandized suspects.
Importantly, Miranda is not a cure-all. First, any detective or interrogator has enormous persuasive power in delivering the actual warnings, in part because police can deceive a suspect (so long as the suspect isn’t deprived of his free will.)
I’m going to advise you of some warnings. These are rights you have. You can also give them up and cooperate with me. I can tell you that if you cooperate with me, things will go much better for you. There’s a lot I can do to help. Who knows, you may not even be charged with such-and-such crime. I can even help you when you appear before a judge. I will personally appear before the judge and tell them how cooperative you were. Just so you, know, you have the right to an attorney. You don’t have to have an attorney. You can continue talking to me.
And, second, a detective can make the choice not to Mirandize, in order to extract information, even if the detective realizes he’s probably losing the ability to use that information at trial against the defendant.
Coerced confessions are still a problem, but probably less of a problem today than they were pre-Arizona v. Miranda. Let’s also remember that Miranda does serve a real purpose, which is at a crucial point in the proceedings when the suspect is most vulnerable, Miranda requires the police to step back and advise him that he has rights if they want to use his statements against him in a future trial.
One final point: given how pervasive the concept of Miranda is in our society, in many cases, except where there is an unsophisticated suspect, it’s hard to imagine a person being questioned who does not know (from TV or the movies) that he can remain silent.
The (sad) truth (from a defense attorney’s perspective) is that most people are all-too-willing to spill their guts, or minimize their conduct, or explain their actions to a police officer. In doing so, Miranda doesn’t even become a practical defense because even after being warned, most people talk, almost always hurting themselves in the process.
To quote The Wire, “Americans are a gullible people.”