Are police free to disregard Miranda?

• Author: Clymer, Steven D.

Introduction

Miranda v. Arizona (1) is the Supreme Court's best-known criminal justice decision. (2) It also may be its most misunderstood. Most people familiar with police television programs, movies, or books understand Miranda to require police to advise suspects of their rights to silence and counsel. (3) Many judicial and academic descriptions of Miranda comport with that view. They characterize Miranda as a law enforcement duty, one that police violate if they either conduct custodial interrogation without first giving proper warnings and securing a valid waiver, or if they fail to terminate questioning upon a suspect's request. (4)

Contrary to that understanding, Miranda and its progeny impose no such obligation on police. Rather, like the Fifth Amendment privilege that serves as its foundation, Miranda is best understood as a constitutional rule of admissibility. The privilege bars improper use of compelled statements in criminal prosecutions of those who made the statements. But, if there are assured restrictions on later use, the privilege does not prohibit the government from employing compulsion to elicit testimony or statements. For example, a prosecutor can compel testimony from a reluctant witness by immunizing her and threatening to prosecute her for contempt if she refuses to answer questions. Courts not only permit this compulsion, they also participate by issuing immunity orders and incarcerating contemptuous witnesses. Because an immunity grant assures the witness that her statement will not be used against her in a criminal case, the act of compelling her to testify does not violate the privilege. In other contexts, the Court likewise permits the government to compel statements so long as it cannot make later use of them in criminal prosecutions. (5) Unlike the Fourth Amendment proscription on unreasonable searches and seizures, which is a direct restraint on police conduct that courts enforce through a judicially created exclusionary rule, (6) the Fifth Amendment privilege is simply an exclusionary rule. (7)

The Miranda Court held that compliance with the now-familiar warnings and waiver requirements, or an effective substitute, is necessary to dispel compulsion inherent in custodial interrogation. But, if police interrogators refrain from conduct that violates due process, their decision to employ that compulsion by disregarding Miranda's requirements, rather than to allay it by complying with them, does not run afoul of the Constitution. (8) Miranda requires only suppression of any resulting statements. Even if one reads Miranda broadly, to hold that the pressures resulting from custodial interrogation always constitute sufficient compulsion to trigger the privilege, police utilization of that compulsion to elicit statements is no less constitutional than prosecutorial use of the more explicit compulsion of immunity grants and contempt threats. If police are willing to suffer the exclusionary consequences, they can disregard the Miranda rules without violating the Constitution. (9)

This understanding, which has received scant attention in the extensive Miranda literature, is significant for at least two reasons. First, as some courts and scholars have recognized, it makes clear that police officers who fail to follow the Miranda warning and waiver guidelines are not liable in civil actions under 42 U.S.C. [section] 1983 for violating suspects' constitutional rights. (10) Second, and more importantly, it reveals that a police officer's decision whether to give Miranda warnings and honor a suspect's assertion of rights is properly guided solely by an assessment of the costs and benefits of compliance and noncompliance, not fidelity to a constitutional norm. Police disregard of Miranda is not a constitutional wrong.

Even absent a constitutional duty, police likely would obey the Miranda rules if the costs of noncompliance outweighed the benefits. If the Supreme Court had interpreted Miranda to impose a robust exclusionary rule, similar to the one that applies to formally immunized testimony, police would have good reason to obey the Miranda rules. But the Court has not taken that approach. Instead, it has made it advantageous for police to disregard the Miranda rules, not just in certain situations, but routinely. The Court's decisions offer a number of evidentiary advantages that encourage police to violate the Miranda rules: preservation of suspects' post-arrest silence for impeachment, an increased likelihood of obtaining fully admissible statements by first taking unwarned statements and then "curing" the violations, and the ability to obtain otherwise unavailable post-invocation statements that are admissible to impeach testimony and that may serve as useful sources of leads to other evidence. As a result, it often is prudent for police to initiate questioning of suspects in custody without first giving warnings and securing waivers. If a suspect asks to remain silent or speak with counsel, there is good reason for police to continue questioning. Although some courts and scholars have criticized police who deliberately violate the Miranda rules by taking statements "outside Miranda," (11) such conduct is both constitutional and, under existing doctrine, sensible. There may be reason to be troubled by police disregard of the Miranda rules, but criticism should be directed at the Court for creating the incentives that drive police conduct, not at police who act in accordance with those incentives.

Federal appellate courts that have addressed this issue have determined all but unanimously that police who fail to comply with the Miranda rules do not violate the Constitution. (12) Instead, a violation occurs only if the resulting statements are used in a criminal case. Because there is nonetheless some difference of opinion among lower federal courts, there is a good chance that the Supreme Court soon will grapple with this issue. Indeed, at the end of the October 2001 Term, the Court granted a petition for a writ of certiorari in a case that presents the closely related question of whether the privilege can be violated absent use of a compelled statement in a criminal case. (13) The Court has given indications that it views both the privilege and Miranda as rules of admissibility, not ones governing police conduct. (14) If the Court interprets Miranda or the privilege accordingly, it will signal to police departments that they are free to disregard Miranda if they are willing to pay the price of exclusion. Because the Miranda exclusionary sanction is a mild one, that message likely will lead to increased, and perhaps widespread, police noncompliance with the Miranda rules. Thus, despite Miranda's reprieve in Dickerson v. United States, (15) in which the Court held that the Miranda rules enjoy a constitutional pedigree, (16) the future of the Miranda rules is both uncertain and bleak.

But there is an alternative. Acknowledgment that Miranda is an exclusionary rule is one part of a larger realization--that the Miranda doctrine is an interpretation of the Fifth Amendment privilege, not a freestanding body of rules. Treatment of Miranda as an offspring of the privilege rather than as only a distant cousin should cause the Court to rethink at least some of the decisions in which it created incentives for police to violate the Miranda rules. The rationales that it offered to support those decisions--deterrence theory and its own characterization of the Miranda rules as "prophylactic"--cannot be squared with the understanding that Miranda is a privilege-based exclusionary rule. The Court has not abandoned the view that statements taken in violation of the Miranda rules are, or must be presumed to be, compelled within the meaning of the Fifth Amendment privilege. As a result, unless it provides more persuasive reasons for differential treatment, the Court should treat such statements as it does immunized testimony and other compelled statements. Thus, paradoxically, recognition that Miranda does not impose direct restraints on police could serve as an important step toward making it a more powerful indirect restraint by bolstering its exclusionary effect.

Part I of this Article explores whether police have a constitutional obligation to comply with the Miranda rules. Such an obligation exists only if the act of compelling a statement, rather than using the statement in a criminal case, is a constitutional violation. Part I begins by demonstrating that the Fifth Amendment privilege against compelled self-incrimination--the sole constitutional provision upon which the Miranda doctrine rests--prohibits only the use of compelled statements in criminal cases. It then shows that although Miranda is the result of a number of creative and controversial interpretive steps, none involves expansion of the privilege to impose a direct restraint on police conduct during interrogation. Miranda, like the Fifth Amendment privilege, can be violated only when compelled statements are used in a criminal case. Part I concludes by describing and refuting arguments by jurists and scholars that the taking of compelled statements alone can violate the privilege, Miranda, or both. To avoid any misunderstanding, it bears mention that Part I takes no position on whether Miranda is a wise decision, (17) a legitimate exercise of the Court's power to interpret the Constitution, (18) or a significant impediment to law enforcement. (19)

Part II examines the incentive structure that the Supreme Court has created for police officers deciding whether to comply with the Miranda rules. Although others have addressed these incentives, Part II offers a more complete picture, describing the full range of costs and benefits at each stage of the interrogation process. It first recounts three sets of the Court's decisions--addressing impeachment with postarrest silence, impeachment with statements taken in violation of...