The Supreme Court's love-hate relationship with Miranda.

• Author: Kinports, Kit

1. INTRODUCTION

   The Supreme Court's recent attitude towards its landmark ruling in Miranda v. Arizona (1) seems to be one of studied ambivalence. On the one hand, the Court has ruthlessly cut back on Miranda, construing it narrowly (2) and creating exceptions, (3) thereby "[w]eakening" its protections and "softening [its] impact." (4) On the other hand, the Court has resisted blatant attempts to subvert Miranda, whether on the part of Congress or individual police officers. In my view, the Court has adopted a pragmatic approach to Miranda. While it can be doctrinally unsatisfying and even incoherent at times, this pragmatic approach basically maintains the essential core structure of the Miranda rules and exceptions as the police have come to know them, while being wary of deliberate efforts to circumvent them. (5)

   Chief Justice Warren's opinion in Miranda has always been surrounded by controversy. Even though the five-to-four decision was in many respects a compromise (6)--the Court did not ban any particular interrogation technique (7) or require the presence of counsel during police interrogations (8)--it immediately encountered resistance. Just two years after the Court issued the decision, Congress enacted the 1968 Crime Control Bill aimed at overturning it. (9) During the 1968 presidential campaign, Richard Nixon urged Congress to pass the bill, calling Miranda a "legal technicalit[y]" that had "very nearly rule[d] out the 'confession' as an effective ... tool in ... law enforcement." (10) Twenty years later, the Reagan Justice Department, under Attorney General Edwin Meese, described the Miranda ruling as "a derelict on the waters of the law," and proclaimed that "[o]verturning Miranda would ... be among the most important achievements of this administration ... in restoring the power of self-government to the people ... in the suppression of crime." (11)

   But when the 1968 legislation ultimately reached the Supreme Court in 2000 in Dickerson v. United States, Chief Justice Rehnquist, a longtime critic of Miranda, surprised many Court-watchers by writing the majority opinion striking the statute down. (12) Despite language in prior Supreme Court decisions referring to Miranda warnings as "prophylactic" rules, "procedural safeguards associated with" the Fifth Amendment privilege against self-incrimination, and "not themselves rights protected by the Constitution," (13) the seven Justices in the Dickerson majority concluded that Miranda was "a constitutional decision" that "may not be in effect overruled by an Act of Congress." (14) The Court did not go so far as to wholeheartedly embrace the Warren Court's decision, cautioning that "[w]hether or not we would agree with Miranda's reasoning and its resulting rule ... in the first instance, ... Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." (15) Thus, Dickerson "froze in place the status quo," (16) even though in so doing it did not create a particularly tidy jurisprudential package. (17)

   Three years later, in Missouri v. Seibert, a plurality of the Court likewise invalidated the "question-first" interrogation technique, a "practice of some popularity" that had been "promoted" in certain police departments. (18) Police using this tactic made a "'conscious decision'" to start interrogating a suspect without first reading Miranda warnings. (19) Then later, after they elicited a statement that was concededly inadmissible (because of the Miranda violation), they would belatedly provide Miranda warnings, secure a waiver, and "cover the same ground a second time" "'until [they got] the answer that [the suspect] already provided once."' (20) Calling question-first interrogation "a police strategy adapted to undermine the Miranda warnings," the plurality refused to allow the prosecution to introduce the second statement Seibert made following the administration of Miranda. (21)

   Despite cases like Seibert, the police have generally made their peace with Miranda, and so seemingly has the Court. In large measure, law enforcement has successfully "adapted" to the Warren Court's decision. For example, police officers regularly "de-emphasize the significance" of the Miranda warnings in various ways: reading them in a "perfunctory" or "bureaucratic" tone of voice, suggesting they are "a mere formality ... to dispense with prior to questioning"; "undermining the ... warnings' effect" by "focusing the suspect's attention on the importance of telling his story"; or "treat[ing] the suspect's waiver of the warnings as a fait accompli." (22) Whether because of these tactics, or because the warnings themselves are simply unable to dispel the inherent coerciveness of interrogation, (23) the overwhelming majority of suspects waive their rights and agree to talk to the police without the assistance of counsel. (24) Thus, Miranda ultimately led to "an equilibrium that both police officers and courts, the regulated and the regulators, were willing to live with." (25) The Court's pragmatic approach to Miranda has maintained that equilibrium, such that Chief Justice Rehnquist was able to announce in Dickerson that "subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief." (26)

   Against this backdrop, the first clues as to the Roberts Court's views on Miranda came last Term. The Court jumped right in, granting cert in three cases--Maryland v. Shatzer, (27) Florida v. Powell, (28) and Berghuis v. Thompkins (29)--that together raised questions spanning the range of issues that arise under Miranda. On each occasion, the Government prevailed. In fact, the three cases involved eight separate Miranda issues, each of them resolved in favor of the prosecution. This Article uses these opinions as the vehicle to test the Roberts Court's commitment to the pragmatic approach to Miranda. In examining the cases through a pragmatic lens, I evaluate them on several levels: whether they make only incremental changes in the law or tread new ground, both in terms of Supreme Court precedent and the trend among the lower courts; whether the Court can justify its ruling on pragmatic grounds or instead leaves the door open to law enforcement efforts to circumvent Miranda; and whether the opinions are one-sided or sensitive to the concerns of suspects facing custodial interrogation.

   Part II of the Article begins with Maryland v. Shatzer, which cut back on Miranda in two respects: first, the Court created a break-in-custody exception to the Edwards rule that protects suspects who invoke their rights, (30) and second, it ruled that inmates serving prison sentences are not in "custody" for purposes of Miranda. (31) Despite ruling against Shatzer on both issues and extending Supreme Court precedent in defining custody, the majority opinion was consistent with a pragmatic approach to Miranda and somewhat sensitive to the policies underlying that decision. In fact, it contained language protective of suspects' rights on other questions the Court had not clearly resolved on prior occasions. (32)

   In Florida v. Powell, which is the focus of Part III, the Court upheld a variation on the Miranda warnings given to the suspect there, rejecting his argument that the police did not adequately inform him of the right to have an attorney with him in the interrogation room. (33) Although the opinion was tied to the narrow facts of the case, it departed from both the Court's own precedent and lower court case law and is harder to defend on pragmatic grounds.

   In the final case, Berghuis v. Thompkins, which is analyzed in Part IV, the Court resolved four issues directly and a fifth implicitly, all in favor of the prosecution. Two of the rulings--that suspects must unequivocally invoke the right to silence and that this clear invocation requirement applies even where a suspect did not initially agree to waive her rights--endorsed the prevailing lower court view and therefore may have been expected, even though they are difficult to reconcile with a pragmatic approach. (34) But the more significant holdings--that Thompkins did not successfully invoke his right to silence by remaining silent, that he impliedly waived Miranda by giving a one-word answer to a question almost three hours into the interrogation, (35) and that the police do not have to secure a Miranda waiver prior to initiating interrogation (36)--cannot be justified on pragmatic grounds.

   Thus, I conclude that while Shatzer and Powell arguably effect only piecemeal changes in the law, poking holes in Miranda without giving the police substantial room to undermine it, Thompkins is a different story. The combined impact of the rulings in Thompkins enables the police to administer Miranda warnings in a very quick, dismissive, bureaucratic way and then launch immediately into the interrogation--unless and until the suspect has the wherewithal to unequivocally invoke her rights. In so holding, Thompkins deviates dramatically from Supreme Court precedent and goes a long way towards undoing Miranda and reinstating the voluntariness due process test Miranda sought to replace.

   To the extent Thompkins signals a change in the Court's attitude toward Miranda, it comes at a particularly critical time given recent suggestions that Congress create an exception to Miranda for terrorism suspects. While Dickerson may indicate that the Court would not look favorably on such legislation, Thompkins may change that calculus. Some preliminary thoughts on the implications of the Roberts Court's rulings for a terrorism exception to Miranda appear in the final piece of the Article.

2. MARYLAND V. SHATZER

   In Maryland v. Shatzer, the Court created a break-in-custody exception to Edwards v. Arizona, holding that a defendant who is released...