Over-reaction - the mischief of Miranda v. Arizona.

• Author: Inbau, Fred E.
• Position: Originally published in Journal of Criminal Law and Criminology, vol. 73, p. 797, 1982 - Reprint

Immediately after the attempted assassination of President Ronald Reagan in Washington, D.C. on the early afternoon of March 30, 1981, Secret Service agents and the District of Columbia police arrested John W. Hinckley, Jr. and took him to the local police headquarters, arriving there at 2:40 p.m. They wanted to question Hinckley not only as to his motive but also about the possible involvement of accomplices. Before doing so, however, they dutifully read to him the warnings of constitutional rights that the Supreme Court in 1966 mandated in its five to four decision in Miranda v. Arizona.(1) The warnings given to Hinckley, as we shall see, contained embellishments of the ones specified in Miranda, and they were read to him on three separate occasions within a two hour period. After receiving the third set of warnings Hinckley was presented with a "waiver of rights" form on which he responded "yes" to the questions whether he had read his rights and understood them. Then he was asked whether he "wished to answer any questions." At this point Hinckley answered, "I ,don't know. I'm not sure; I think I ought to talk to Joe Bates [his father's lawyer in Dallas] ." Hinckley added: "I want to talk to you, but first I want to talk to Joe Bates."(2)

Following the D.C. police "booking procedure" (identification data and fingerprints), and while the police were attempting to contact Joe Bates, two FBI agents arrived and arrested Hinckley for violation of the Presidential Assassination Statute.(3) They were informed of all that had transpired and then took Hinckley to the FBI field office at approximately 5:15 p.m. He received the Miranda warnings for the fourth time, at the field office. He was also presented with another waiver form, supplied by the FBI. Hinckley signed his name to it; however, "it was clearly understood that he did not waive his right not to answer questions before consulting counsel." Nevertheless, he did answer various "background" questions asked by FBI agents.

The "background" information was suppressed by the D.C. District Court. It reasoned that the information was elicited from Hinckley in violation of Miranda, which prohibits the interrogation of a custodial suspect after he announces or indicates he wants to have a lawyer present.(4) As already quoted, Hinckley had said he wanted one, although he did so rather hesitatingly.

The district court ruling was affirmed by the Court of Appeals for the D.C. Circuit.(5) Both courts rejected the government's contention that the questioning of Hinckley at the FBI office was merely "standard processing procedure" of an "essentially administrative nature." The courts concluded that Hinckley had, in fact, been interrogated and that the purpose of the questioning was to obtain personal background information from Hinckley which would negate an anticipated insanity plea at the time of trial. It was obvious that Hinckley could not deny he did the shooting, so the only conceivable defense would be that of insanity. That was, in fact, the plea at his trial, which began on April 26, 1982.(6)

In view of the court rulings declaring the "background information" inadmissible at trial, whatever value that information may have been to the prosecution was irretrievably lost. The government decided not to seek Supreme Court review of the appellate court's decision. Reliance had to be placed, therefore, upon independent evidence of Hinckley's sanity.

Before proceeding to discuss several other cases to illustrate the mischief occasioned by Miranda, the writer reiterates that Hinckley had received the prescribed warnings three times within a two-hour interval, and that a signed waiver was sought from him at the D.C. police station when he was asked if he wished to answer any questions. Nowhere in the Miranda opinion is there anything requiring such a repetition of the warnings, or the need for a signed statement, or the ascertainment of any other kind of waiver than an indicated willingness to be questioned. Why, then, the mischief?

The mischief in the Hinckley case resulted from a concern on the part of law enforcement officers--and an understandable concern--that whatever they say to a suspect by way of Miranda requirements might later be considered inadequate by a judge or appellate court. Hence, they over-react; they embellish the warnings or add new ones. Each time someone wants to talk to the suspect, or the same interrogator wants to resume his interrogation, the warnings are repeated. The repetitive warnings are followed by a request to sign a legalistically shrouded waiver form. As a consequence of all of this, suspects who might otherwise have been willing to talk are far less apt to do so.

Another illustration of over-reaction to Miranda appears in an appellate court case within the District of Columbia that was decided only one month prior to the interrogation of Hinckley. In that case, United States v. Alexander,(7) a suspected murderer received the following warnings, as prescribed in a D.C. police department regulation:

You are under arrest. Before we ask any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer questions. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Following a reading of the warnings to the suspect, she was presented with a printed waiver form, on which the first three questions were:

1. Have you read or had read to you the warnings as to your rights?

2. Do you understand these rights?

3. Do you wish to answer any questions?

   Alongside each of the foregoing questions the suspect wrote "Yes." The next question was:

4. Are you willing to answer questions without having an attorney present?

   To this fourth question the suspect wrote "No." The next item on the form was:

5. Signature of defendant on line below.

   After the suspect's signature, the remaining portions of the waiver document contained space for the time, date, and lines for the signatures of two witnesses.

   Following completion of the printed waiver form, a police officer told the suspect, "[w] e know you are responsible for the stabbing," whereupon she confessed and agreed to give a written statement. At this point, the officer issued "fresh Miranda warnings."

   The trial court in Alexander suppressed the resulting confession, for the same reason stated in the Hinckley case--the questioning of a custodial suspect after an indication of an interest in having a lawyer present. The suppression order was affirmed by the appellate court. Consequently, the confession could not be used as evidence at trial.

   The warnings that were used in the Alexander case presumably were the same ones that were given by the D.C. police department to Hinckley. In those warnings and in the waiver forms, the police went far beyond what the Supreme Court mandated in Miranda, or in any of its subsequent decisions prior to (or since) the interrogations of Alexander and Hinckley. What the Court stated in Miranda was that before a custodial suspect could be interrogated

   [h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.(8) Following this specification of the required warnings, the Court proceeded to advise interrogators that the suspect's "[o]pportunity to exercise these rights must be afforded to him throughout the interrogation," meaning that if he changed his mind and decided to remain silent or wanted an attorney present he should be accorded that privilege.(9) But this was only a warning to interrogators, not something for incorporation into the required warnings to the suspects themselves. The Court also stated that after the issuance of the warnings, "the individual may knowingly and intelligently waive these rights and agree to answer questions or make a...