Foreword: from Miranda to s. 3501 to Dickerson to....

Author:Kamisar, Yale

Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.

Donald Dripps(1)


    On June 19, 1968, President Lyndon B. Johnson reluctantly signed the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter "the Crime Act" or "the Crime Bill"), a bill containing a provision known as [sections] 3501 because of its designation under Title 18 of the United States Code.(2) Section 3501 appeared to make the pre-Miranda v. Arizona(3) "due process"-"totality of the circumstances"-"voluntariness" rule the sole test for the admissibility of confessions in federal prosecutions, thereby purporting to "overrule" by legislation the Supreme Court's most famous criminal procedure case.

    In upholding [sections] 3501, the U.S. Court of Appeals for the Fourth Circuit deemed it "important to note" that --

    Congress did not completely abandon the central holding of Miranda, i.e., the four warnings are important safeguards in protecting the Fifth Amendment privilege against self-incrimination. Indeed, [sections] 3501 specifically lists the Miranda warnings as factors that a district court should consider when determining whether a confession was voluntarily given.(4) The trouble with this analysis is that [sections] 3501 does not require the police to issue any warnings to custodial suspects; the section only directs the trial judge to consider certain factors when determining the voluntariness of a confession. Moreover, although some of the factors listed in [sections] 3501 may resemble the Miranda warnings to someone unfamiliar with the pre-Miranda confession cases, on a closer look they turn out to include only some of the many components of the pre-Miranda test.

    Section 3501(b) does set forth various factors that the trial judge "shall take into consideration," including whether or not the suspect has been advised of his rights, but goes on to say that "the presence or absence of any of [these] factors ... need not be conclusive on the issue of the voluntariness of the confession."(5) The operative words are "take into consideration" and "factors."

    By the early 1960s, the voluntariness test, which had become "increasingly meticulous through the years,"(6) also took into consideration such factors as whether the suspect had been advised of his rights.(7) Thus, [sections] 3501 added nothing to the pre-Miranda test for admitting confessions into evidence.(8)

    How did [sections] 3501 come about? Fred Graham, the Supreme Court correspondent for the New York Times at the time [sections] 3501 was debated and enacted into law, furnishes some background: When the Crime Bill containing what was to become [sections] 3501 reached the Senate floor, Graham reports, "it was immediately seen as a bald Congressional attempt to rap the Supreme Court's knuckles over crime;" the bill's provisions reflected "the sentiments of a committee that was dominated by Southern senators who had been nursing hurt feelings over the school desegregation decision of 1954 and who wanted to take it out on the Supreme Court over crime."(9) Another close student of the crime bill noted that during the Senate subcommittee hearings chaired by Senator John McClellan "the familiar claims of a direct connection between the enlargement of procedural requirements and a rising crime rate were paraded by a parade of district attorneys, police chiefs and other representatives of what might be called the `law enforcement lobby.'"(10)

    Where were the opponents of the proposal that became [sections] 3501? When Senator Joseph Tydings, who led the opposition to the Crime Bill in the Senate, charged that not a single constitutional law or criminal procedure professor had been given an opportunity to testify before Senator McClellan's subcommittee on the desirability or constitutionality of the bill's anti-Miranda provision,(11) McClellan did not deny it.(12) As I have pointed out elsewhere:

    The conspicuous absence of any law professors at the subcommittee hearings (or any defense lawyers or public defenders for that matter) could hardly be attributed to a lack of interest by those in academia. When asked by Senator Tydings to state their views on the desirability of [sections] 3501 and other anti-Court provisions and on the power of Congress to enact them, 212 law professors (including twenty-four law school deans) from forty three law schools had responded. Most attacked the constitutionality of the anti-Miranda provision; not a single one defended it.(13) II. THE CONSTITUTIONAL STATUS OF MIRANDA

    Although there was reason to think the Court might uphold the constitutionality of [sections] 3501 when the Court finally addressed the issue in the year 2000 (because of the post-Warren Court's characterizations of and comments about Miranda in the three decades since the case was decided), it is difficult to see how [sections] 3501 could have passed constitutional muster had the Court decided its fate in 1968 or 1969. Indeed, I venture to say that at the time the Miranda opinion was handed down almost everyone who read it (including the dissenting Justices) understood that it was a constitutional decision -- an interpretation of the Fifth Amendment privilege against self-incrimination.

    As Justice White, who wrote a forceful dissent in Miranda, told the conference of state chief justices a year later:

    Is the arrested suspect, alone with police in the stationhouse, being "compelled" to incriminate himself when he is interrogated without proper warnings? Reasonable men may differ about the answer to that question, but the question itself is a perfectly straightforward one under the Fifth Amendment and little different in kind from many others which arise under the Constitution and which must be decided by the courts. [W]hatever its merits, [Miranda] is plainly a derivative of Malloy v. Hogan, applying the Fifth Amendment to the States, and Gideon v. Wainwright, which required counsel in most kinds of criminal cases. In terms of the function which the Court was performing, I see little difference between Miranda and the several other decisions, some old, some new, which have construed the Fifth Amendment in a manner in which it has never been construed before, or as in the case of Miranda, contrary to previous decisions of the Court and of other courts as well.(14) Justice White's remarks to the state chief justices may surprise some who remember how angry he seemed in his Miranda dissent. He was not too angry, however, to point out that the fact that "the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment ... does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment."(15)

    One need not dwell on Justice White's views about what might be called the legitimacy or the constitutional dimensions of Miranda. Chief Justice Warren's opinion for the Court in Miranda speaks for itself. And it speaks very quickly about the Fifth Amendment -- it states on the very first page that, in the cases before the Court, "we deal with ... the necessity for procedures which assure that the individual is accorded the privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself."(16) Then it tells us on the third page that the Court granted certiorari "in order further to explore some facets of the problems of applying the privilege against self-incrimination to in-custody interrogation and to give concrete constitutional guidelines for law enforcement agencies and courts to follow."(17)

    Forty-eight pages later, when bringing its opinion to a close, the Court observed that although "Congress and the States are free to develop their own safeguards, so long as they are fully as effective as [the Miranda warnings], the issues presented are of constitutional dimensions and must be determined by the courts."(18) The Court continued:

    As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.(19) As is well known, the Miranda Court discussed constitutional principles generally for some fifty pages before concentrating on the facts of the four cases before it. When it finally addressed the specific facts of these cases, it began:

    We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.(20) If there were any doubts about the constitutional status of Miranda, they were dispelled three years later in Orozco v. Texas,(21) when a majority of the Court voted to throw out a confession because "obtain[ing] it in the absence of the required warnings was a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda."(22)

    In the 1970s, however, a new majority of the Supreme Court, led by a newly appointed Justice William Rehnquist, began kicking dirt at Miranda. In Michigan v. Tucker,(23) in the course of holding admissible the testimony of a witness whose identity had been discovered by questioning the...

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