A Deep Breath Before the Plunge: Undoing Miranda's Failure Before It's Too Late - Benjamin D. Cunningham

Publication year2004


A Deep Breath Before the Plunge: Undoing Miranda's Failure Before It's Too Late

I. Introduction

The Supreme Court's decision in Miranda v. Arizona1 has been and will be a lightning rod for controversy so long as it remains in effect. The decision has been lauded for its apparent protection of individual dignity from overzealous police and criticized as an unwarranted shackle on legitimate law enforcement techniques. Nevertheless, Miranda has weathered the storms and, thanks to the Supreme Court's decision in Dickerson v. United States,2 has endured. Unknown to most proponents or detractors, however, Miranda has had little effect on what actually occurs during police interrogations. The reasons for this are varied. First, by creating numerous exceptions to Miranda, the Supreme Court has whittled away at the protections Miranda sought to provide. Second, Miranda rights are frequently waived by suspects.

Waiver of Miranda rights is a result of a fundamental flaw in the well-intentioned scheme. The warnings are recited to the suspect and then the suspect is left with choices — remain silent, ask for an attorney, or talk to the authorities. Although the suspect may be aware that he has various options available to him, the warnings have not supplied him with the appropriate criteria to govern his choice. This Comment proposes that a suspect should be required to meet with counsel prior to custodial interrogation and to have counsel accompany him during the interrogation.

II. The Evolution of the Constitutional Bases

A. The Fourteenth Amendment's Due Process Clause

One of the first cases to deal with confessions was Bram v. United States.3 The Court in Bram held that the use of the statement of an accused is governed by the "portion of the Fifth Amendment . . . commanding that no person 'shall be compelled in any criminal case to be a witness against himself.'"4 However, the Fifth Amendment's Self-Incrimination Clause would not be applied to the states through the Due Process Clause of the Fourteenth Amendment for another fifty years.5 In the interim, the Court fashioned a voluntariness test from the Due Process Clause in an effort to exclude coerced statements that were deemed untrustworthy.6

Ultimately, under the totality-of-the-circumstances test, the voluntariness test has evolved into a consideration of "both the characteristics of the accused and the details of the interrogation."7 Should a court determine that the defendant's "will was overborne," the confession is deemed involuntary, and its introduction into evidence is barred.8 Throughout the first half of the twentieth century, the Court used the voluntariness test to exclude untrustworthy confessions that resulted from the most flagrant forms of coercion, such as threats of imminent harm,9 lack of physical comforts such as food or sleep,10 repeated or extended periods of interrogation,11 limited access to counsel or friends,12 lengthy and illegal detention,13 and individual weaknesses or incapacities.14

B. The Sixth Amendment Right to Counsel

Following incorporation of the Due Process Clause through the Fourteenth Amendment,15 the Court considered the admissibility of confessions in light of the Sixth Amendment. The Sixth Amendment provides that the accused in a criminal prosecution shall be entitled to have the assistance of counsel.16 In Massiah v. United States,17 the Court held that the Sixth Amendment right to counsel is violated if government officials "deliberately elicit" statements from an indicted defendant without counsel present.18 Although the holding of Massiah provided a brightline rule,19 the scope of the decision was limited: Because the defendant had already been indicted and retained counsel, lower courts construed the holding to apply only in those limited, post-indictment, circumstances.20 on the heels of Massiah, the Court decided Escobedo v. Illinois,21 the harbinger of Miranda. In Escobedo defendant had been arrested and questioned about a murder. That day defendant's attorney obtained a writ of habeas corpus, and defendant was released. Several days later, he was rearrested. As defendant was being driven to the station, he asked to speak with his attorney. His request was denied. Defendant's attorney sought, in vain, to speak with his client during the questioning. As the interrogation progressed, defendant was confronted with another suspect in custody.22 During the confrontation, defendant stated: "I didn't shoot [the victim], you did it."23 Afterward, defendant was questioned for four hours, and eventually confessed. Defendant was found guilty of murder, and his conviction was affirmed on appeal.24

Writing for the majority, Justice Goldberg reasoned that the right to counsel would be eviscerated if the guilt of the defendant was effectively determined at an uncounseled, pre-indictment interrogation.25 Although the Court acknowledged the possibility that its holding would reduce the number of confessions, the Court used this fact to justify the application of the Sixth Amendment at the critical point in the criminal investigations.26 The Constitution favors a defendant's privilege against self-incrimination over the unfettered procurement of statements by police; thus, an accused should be allowed to consult with counsel at what may prove to be the outcome-determinative stage.27

The majority first posited that a confession-based system of justice is historically "less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation."28 Addressing the dissent's fear that the decision would interfere with the functioning of the criminal justice system, Justice Goldberg wrote:

[N]o system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.29 @@@

The Court held that the right to counsel attaches prior to indictment, when the investigation begins to focus on a particular suspect, the suspect is in custody, the police "carry out a process of interrogations that lends itself to eliciting incriminating statements," the suspect asks for and is denied an opportunity to communicate with his attorney, and the police fail to explain to the suspect that he has a constitutional right to remain silent.30 If all of the above elements are present, then a statement given by the suspect is inadmissible because the procuring of the statement violates the suspect's Sixth Amendment right to counsel.31 In addition to the normative rhetoric employed by Justice Goldberg, the decision in Escobedo is noteworthy because the Court recognized the desirability of allowing suspects to make an informed choice as to whether to give statements during interrogation.32 This rationale was further developed in Miranda, but on a Fifth Amendment basis.33 Before examining Miranda, a brief synopsis of the Sixth Amendment right to counsel is necessary.

Currently, the Sixth Amendment right to counsel attaches "at or after the time that judicial proceedings have been initiated . . . 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'"34 A violation of the Sixth Amendment occurs if, following initiation of judicial proceedings, authorities "deliberately elicit" a statement from a suspect in the absence of counsel.35 The justification for finding a violation at this point, instead of at trial, is that the right safeguards the attorney-client privilege.36

C. The Fifth Amendment's Self-Incrimination Clause: Miranda v. Arizona

The holdings in Miranda v. Arizona37 are well known. The government is barred from introducing, in its case-in-chief, statements of a defendant obtained from a custodial interrogation unless the government uses sufficient procedural safeguards to protect the accused's right against self-incrimination.38 Procedural safeguards require that the accused be informed, prior to custodial questioning, that he has a right to remain silent that may be exercised at any time, that any statement given by him may be used as evidence against him in a court of law, that he has a right to have an attorney present during questioning, and that if he cannot afford to hire an attorney, one may be appointed for him.39 The Court defined "custodial interrogation" as any questioning begun by law enforcement officers after the accused has been taken into custody or when the accused's freedom has been significantly deprived.40

The Court declared that if the accused either indicates that he does not wish to answer any questions or requests the presence of an attorney, the interrogation must cease even though the accused had previously agreed to answer questions.41 Finally, the Court held that the accused may waive his rights if the waiver is knowing, voluntary, and intelligent.42 However, a "heavy burden" rests on the government to establish that the waiver requirements have been met.43 These statements represent the holdings of Miranda. The basis for these holdings, whether constitutional or otherwise, will now be addressed.

Chief Justice Warren, writing for the majority, began the opinion by reviewing the Court's decision in Escobedo.44 After noting the spirited debate and inconsistent applications that followed Escobedo, the Court declared that the purposes of the Miranda decision were to further explore how the Self-Incrimination Clause of the Fifth Amendment is implicated during in-custody interrogation and to "give concrete constitutional guidelines" for courts and law enforcement officials to consistently...

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