Miranda Morass.

• Author: Young, Cathy

The Supreme Court may repeal your right to remain silent. What should come next?

The "Miranda rule," which makes a confession inadmissible in a criminal trial if the accused was not properly advised of his rights, has been so thoroughly integrated into the justice system that any child who watches television can recite the words: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney..." Yet the 1966 Supreme Court ruling in Miranda v. Arizona remains the subject of often heated debate. To many conservatives, it embodies liberalism's worst sins, from unbridled judicial activism to an unholy sympathy for "criminals' rights." To most liberals, it represents not only respect for civil liberties but protection for the most socially vulnerable individuals against the coercive powers of law enforcement.

The reality is far more complicated and interesting. While law-and-order conservatives routinely underestimate or wave off the dangers of police coercion, civil libertarians similarly understate Miranda's negative effects on crime control. The irony, however, is that Miranda does relatively little to prevent some of the most insidious police abuses--or to protect the innocent.

The Miranda debate is newly relevant: Last December, the Supreme Court agreed to take a case--U.S. v. Dickerson--which could lead to a reversal of the landmark decision later this year. Dickerson stems from a relatively obscure footnote in U.S. legal history (see "Silent Right," June 1999). In 1968, Congress enacted a statute (Section 3501 of the U.S. criminal code) essentially nullifying Miranda in federal prosecutions and making all voluntary confessions admissible. The law was rarely used by federal prosecutors, and in 1997, the Justice Department formally stated that it would not be enforced. Two years later, the conservative U.S. Court of Appeals for the 4th Circuit in Virginia forced the issue when the government appealed a federal judge's decision to suppress the statements of an accused bank robber who had confessed before being read his rights. Section 3501 was not invoked in the appeal, but the appellate panel cited it in reinstating the confession and chided the Justice Department for refusing to apply the law. The court's action was prodded by a brief from the right-of-center Washington Legal Foundation, written by Utah College of Law professor Paul Cassell, a persistent and vocal critic of Miranda.

While the outcome of Dickerson will technically affect only cases tried in the federal courts and in the District of Columbia, it is likely have a major impact on the state level as well. The Supreme Court has repeatedly noted that Miranda warnings are not a constitutional right but a "prophylactic"...