More Blawgging

Mark Thompson in reply to Scott says:

This is a misreading of Miranda, at the very least, and also of Gideon (which, it should be noted, merely made 1938’s Johnson v. Zerbst applicable to the states). Regarding Miranda, the Court did not find some new right to be read one’s rights. Indeed, the Court explicitly states that ” we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.”

What the Court instead found was that under the longstanding principle that confessions must be voluntary to be admissible evidence (see, e.g., Bram v. United States (1890)), the burden of proof regarding the voluntariness of such confessions rested with the prosecution – not at all a new finding. It was further established for quite some time that a “voluntary confession” was one made freely and without coercion. Police departments, responding to earlier decisions prohibiting the use of confessions procured by physical force such as Chambers v. Florida (1940), had increasingly begun resorting to trickery and intimidation to get prisoners to waive their Fifth Amendment rights. The Court in Miranda simply got wise to the fact that these had become widespread tactics designed to do an end run around prohibition of coerced confessions by other means. Rather than outright banning the use of confessions obtained via these tactics, Miranda simply creates a schema under which these tactics may be permitted and where it can be presumed that a confession was obtained voluntarily. It simply holds that the confession of a suspect in custody is admissible only if he is aware of his rights and knowingly waives them. How can it be proven that a suspect has knowingly waived his rights? Well, naturally, if the person doing the interrogating has first advised him of those rights.

But this does not create any kind of a new “right” to be read your rights. Indeed, if one’s rights are not read to him, the only effect is that his confession will be inadmissible (and of course, any “fruit of the poisonous tree”). You can still get convicted if your rights aren’t read to you, and by itself failure to read your rights to you cannot, so far as I’m aware, form an independent basis for any kind of a civil rights suit.

Rather, all that the Court did in Miranda was refuse to cover its eyes while the police performed an end run around some of the Court’s earlier decisions. That’s not to say that the Court’s decision is unassailable – one can dispute the finding that various tactics are coercive in any meaningful sense, though I might disagree. One can also dispute whether the Court should have established inflexible rules regarding admissibility rather than leaving that up to the states while continuing to invalidate convictions based on coercive measures taken by the police in the interim, though I might disagree given the number of similar cases that the Court had dealt with in the then-recent past. But one cannot say that the Court created or found a previously unrecognized right – all it did was respond to changed circumstances by creating a rule under which the State could be said to have complied with the long-recognized right against compelled testimony against oneself.Report