In the stationhouse after Dickerson.

• Date: 01 March 2001
• Author: Weisselberg, Charles D.

INTRODUCTION

Miranda v. Arizona(1) established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States,(2) the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse.

As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct officers that they may continue to interrogate suspects in custody who have asserted their Fifth Amendment right to remain silent or right to counsel.(3) Harris v. New York(4) and Oregon v. Hass(5) permit some statements taken in violation of Miranda to be used for impeachment purposes at trial. Michigan v. Tucker(6) and Oregon v. Elstad(7) permit some derivative use of such statements.(8) These rulings -- together with other decisions labeling Miranda's procedures as merely "prophylactic"(9) -- have created incentives for police to disregard Miranda and have led to a different way of thinking about its core holding. Proponents of this different view, which I have called the "new vision" of Miranda,(10) have claimed that Miranda sets forth a nonconstitutional rule of evidence that need only be followed when officers seek a statement to introduce in the prosecution's case-in-chief at trial.(11) By transforming Miranda from an affirmative constitutional command governing conduct in the stationhouse into a weak rule of evidence, the new vision has encouraged officers to continue to question suspects who have asserted the right to counsel or the right to remain silent. During the last decade, the practice has become so pervasive in some jurisdictions that it has acquired its own moniker: questioning "outside Miranda."(12)

This Article argues that Dickerson firmly rejects the "new vision" and asks whether the ruling may foster new respect for Miranda and adherence to its commands. The Article explores the Court's reaffirmation of the constitutional basis for Miranda and discusses the efficacy of exclusionary rules and civil rights actions in enforcing Miranda's procedures. Most police officers are not lawyers and do not read advance sheets. Court decisions can influence officers' conduct only if the holdings are accurately transmitted to them. This Article thus examines how law enforcement officials are instructed following Dickerson and other recent Miranda cases, and explores whether officers are likely to follow their training.

Part I briefly reviews interrogation training in the last decade, particularly in California, and discusses the holdings in Dickerson and three other recent Miranda decisions from lower courts, including one civil rights action. Part II examines the instruction of officers in California in the wake of these cases. Although the training is not uniform, and may not be given in all parts of California, officers are now being encouraged to comply with Miranda. It appears to have taken a palpable threat of civil liability and, perhaps, Dickerson to force this change. Part III discusses the conditions under which the new training may actually alter interrogation practices in the stationhouse. The Article argues that the new training may prove effective if law enforcement supervisors themselves take Miranda's commands seriously and work to change norms within their departments. Finally, the Article explores the use of civil rights actions to vindicate Miranda rights after Dickerson and concludes that the risk of civil rights liability is important in changing departmental norms.

1. INTERROGATION PRACTICES, THE COURTS AND DICKERSON

   1. Questioning "Outside Miranda" in California

      Before describing police practices in California, one might ask whether it is worth examining what occurs in a single state and whether California's practices have spread to other jurisdictions. There is some evidence of Miranda noncompliance outside of California,(13) though I have not undertaken to examine training in other jurisdictions and I make no claims about the prevalence of questioning "outside Miranda" elsewhere. Nevertheless, even in the event that questioning "outside Miranda" is confined to California, California is the nation's most populous state(14) and has the largest criminal justice system of all the states.(15) Whether or not California's police practices are representative of those in other jurisdictions, California has a large chunk of the nation's criminal investigations and prosecutions, and what happens in California is therefore significant in its own right.

      Consistent with the "new vision" of Miranda, many police officers in California have been trained during the last decade that Miranda's rules are merely nonconstitutional "recommended" or "suggested" guidelines that must be followed only when officers seek a statement that will be admissible in the prosecution's case-in-chief at trial.(16) This training has been promulgated by state law enforcement agencies, such as the Attorney General's office and the California Commission on Peace Officer Standards and Training ("POST").(17) The instruction has also occurred in counties and cities within California, though it is also true that some agencies have rejected the practice and have told officers to respect a suspect's Miranda invocation.(18) Despite the efforts of some agencies to urge respect for Miranda, "outside Miranda" training has had a significant impact in California, as demonstrated by the reported cases with "outside Miranda" issues,(19) This training has led to several legislative efforts at reform, which have not yet proved successful.(20)

      "Outside Miranda" instruction emphasizes that Miranda describes only a value-neutral rule of evidence; it does not embody a constitutional command. Thus, there is nothing legally or morally wrong in interrogating a suspect who has invoked the right to counsel or the right to remain silent. Questioning over an invocation merely has an evidentiary consequence at trial.(21) It is therefore perfectly legitimate to question a suspect even after she has asserted her Fifth Amendment rights, to obtain additional information (such as the location of physical evidence, the names of witnesses, the identities of accomplices, or the accused's methods of operation) or to force the defendant to commit to a statement that will prevent her from asserting a new defense at trial. Of course, any such statement cannot itself be used in the case-in-chief at trial. But, in the words of a proponent of this tactic, "you can accomplish all of these legitimate purposes that don't have anything to do with the prosecution of the case, and some that do, by talking to the guy `outside Miranda.' "(22) Officers trained in this fashion perceive no downside to questioning "outside Miranda." Investigators who respect an invocation of a suspect's rights and stop questioning will obtain no information from a suspect. On the other hand, questioning over an invocation may yield useful information, even if that information has a limited use at trial.

      I have argued elsewhere that this theory and training is not faithful to the language, history, or purposes of Miranda.23) Nor does it cohere with Edwards v. Arizona,(24) which holds that an accused who has "expressed his desire to deal with the police only through counsel ... is not subject to further interrogation by the authorities until counsel has been made available to him" unless the suspect reinitiates contact or communication with the officers.(25) A significant number of law enforcement trainers, however, have not read Miranda or Edwards to bar such continued questioning.(26)

   2. Lower Court Rulings and Questioning "Outside Miranda"

      Because so many officers have been instructed that it is permissible to interrogate "outside Miranda," a series of cases challenging this practice have reached the state and federal courts. Along with Dickerson, these decisions have significantly affected formal police training in California.

      1. People v. Peevy

         A number of defendants have argued to California state courts that statements taken in deliberate violation of Miranda and Edwards should not be admissible for impeachment under Harris v. New York and that the tactic of questioning "outside Miranda" was sufficient to render their statements involuntary under the Fourteenth Amendment. An involuntary statement is inadmissible for any purpose, including impeachment.(27) Most intermediate appellate courts to face the issue have strongly criticized the practice of questioning "outside Miranda."(28) But not all intermediate appellate courts agreed. In People v. Branscombe,(29) the court endorsed the "new vision" of Miranda, holding that "[p]olice officers are presented with a choice -- they may cease questioning upon defendant's invocation of the right to remain silent or they may continue their discussion with the suspect and therefore lose the benefit of that evidence in the prosecution's case-in-chief."(30)

         The question reached the California Supreme Court in 1998 in People v. Peevy.(31) Airreque Peevy was arrested for attempted robbery by San Bernardino County sheriff's deputies, who questioned him after he asked for an attorney.(32) One deputy testified that "I kept talking with him for impeachment purposes."(33) Peevy's "outside Miranda" statement was later used to impeach him at trial.(34)

         On May 7, 1998, the California Supreme Court unanimously ruled that the Harris exception applies even when a statement is taken in deliberate violation of Miranda and Edwards.(35) Peevy did not assert that his statement was involuntary; consequently, that issue was not addressed.(36) The court also left open the question whether a...