Will Miranda survive? Dickerson v. United States: the right to remain silent, the Supreme Court, and Congress.

PositionPanel Discussion

STACEY OSTFELD: Students, faculty, members of the administration, and distinguished guests. Good evening and welcome to the American Criminal Law Review Fifth Annual Debate. My name is Stacey Ostfeld and I am the Editor-In-Chief of the journal. Published four times a year, the American Criminal Law Review provides timely treatment of significant developments in constitutional and criminal law through articles contributed by leading scholars and practitioners, and through notes written by our own student staff. Each year we bring notable speakers to campus during this, our annual debate, to discuss contemporary legal and public policy issues concerning American criminal law. We are pleased to continue this tradition with our program today. I would now like to turn the event over to the Executive Editor of the American Criminal Law Review and to thank her in advance for all of her hard work in preparing this program today, Ms. Adriana Rodriguez.

ADRIANA RODRIGUEZ: Welcome to the ACLR's annual debate this year entitled, "Will Miranda Survive? Dickerson v. United States: the Right to Remain Silent, the Supreme Court, and Congress." Before I introduce today's participants I would like to say a few words about our format. After our moderator introduces the topic, each debater will have the opportunity to make a five-minute opening statement. Following these remarks, our moderator will then direct each question to one participant. That participant will have five minutes to respond and then our other speaker will have three minutes for rebuttal. At the end of the debate each participant will have five minutes to make closing arguments. I now have the distinct privilege of introducing our distinguished guests.

Professor Paul Cassell, a self described "tilter-at-windmills" and Professor of Law at the University of Utah College of Law, filed the amicus brief in Dickerson that brings the Miranda debate to the Supreme Court and gives us our topic for today. A graduate of Stanford Law School, after serving as clerk for Chief Justice Burger and then Judge, now Justice Scalia, Professor Cassell served in the Department of Justice as a federal prosecutor and for two years as Assistant Deputy Attorney General.

Robert Litt, partner at the Washington, D.C. firm Arnold & Porter, has a distinguished record of service to government. He has served as Special Advisor at the Department of State and worked for over ten years in different capacities at the Department of Justice. First, he served as an Assistant U.S. Attorney in the Southern District of New York and later as Deputy Assistant Attorney General in the Criminal Division. Most recently, he served as Principal Associate Deputy Attorney General with responsibility for law enforcement, national security, cyber issues, and independent counsel matters. After earning his J.D. from Yale Law School, Mr. Litt served as a clerk for Judge Weinfeld in the Southern District of New York and for U.S. Supreme Court Justice Potter Stewart. Mr. Litt has served as adjunct faculty member here at Georgetown University Law Center and at American University. Mr. Litt has also authored an amicus brief on behalf of law enforcement in Dickerson.

Our moderator, Lyle Denniston, has covered the Supreme Court for forty-two years, currently for the Baltimore Sun. One of every four Justices ever to sit on the bench has been covered by Mr. Denniston. He is one of the few non-attorneys to serve as adjunct faculty here at Georgetown University Law Center. He has also served on the faculties of American University, Johns Hopkins University, Georgetown University's undergraduate school, and he now teaches a course on American constitutional history in Penn State's new Washington program on communications and democracy. In addition to his reporting and teaching, for 15 years Mr. Denniston wrote a monthly column for the American Lawyer analyzing attorneys' arguments before the Supreme Court.

We look forward to a lively debate. I turn the stage to Mr. Lyle Denniston.

LYLE DENNISTON: Thank you Adriana, and thank you Stacey for getting us started here and for inviting me. I am delighted to be with you and I am indebted to the judiciary and to the legal profession for allowing me to be here. Today was a day on which we thought the balloon would go up for Microsoft in Judge Jackson's chambers, but it did not. We also thought that there might have been very significant developments today in the Elian Gonzalez case in Miami. There were not. We thought the Supreme Court might today decide issues of profound significance, but aside from a couple of small criminal law decisions, they did not, so all I had to do was to prepare to come and lead our group here tonight and be with you. I must say this is a larger audience than I've ever had in the Georgetown Law Center and I am grateful to the American Criminal Law Review for turning out such a crowd. The room where I taught legal process for eight years is now gone, a casualty of the expansion of the Law Center eastward, but my most important continuing connection to the law school is my wife. Pamela graduated here two years ago and is now happily ensconced in intellectual property practice, which of course, is where all the money is.

Let me get started here with an introduction that perhaps will detain our debaters a little long, but I hope it will be able to provide some considerable context and if I succeed in what I undertake to do here, I think it will save our debaters some time so that they will not have to put their comments in context. They can simply go at each other.

What I would like to do is begin by going back to June 6, 1968. That day the House of Representatives was moving toward final passage of the Omnibus Crime Control and Safe Streets Act. Gerald Ford, a Republican representative from Michigan and the minority leader in the House, rose to defend Title II of that bill. Congressmen Ford said "I refuse to concede that the elected representatives of the American people cannot be the winner in a confrontation with the Supreme Court." Now did that mean that there was about to be launched a constitutional shoving match between Congress and the Court, or was it just another example of the verbal hyperbole that occasionally one hears on the floor of the House or the Senate. Well, if it was a confrontation, who was the winner? Not even Gerald Ford could have said at the time that thirty-two years later it would still not be clear whether the elected representatives or the Court had won, and that remains unresolved tonight. Within about three months, however, we may all have an answer.

But in the meantime, the staff of the American Criminal Law Review, with the quite indispensable assistance of the two gentlemen you see behind me, hopes to prepare us all to appreciate the outcome when it does emerge. This will be a debate, ladies and gentlemen; it is not a moot court and it is not an attempt to provide a preview of a Supreme Court hearing. It will be a debate that will be centered upon, though not confined to, two cases: Miranda v. Arizona(1) and Dickerson v. United States.(2) Miranda, as almost everyone already knows, if you watch police drama on television, has been decided. Dickerson has not, but on April 19, in the closing days of oral argument in this term of the Court, the Justices will hear that case and expect to decide it by summer. As tonight's debate unfolds before you, it will be our goal to try to cover four general areas of inquiry. First, on Miranda. What did the decision mean in the beginning? Has its meaning changed since then, and if it has, what are the consequences? Second, on H.R. 5037, the bill that Congressman Ford was addressing in 1968, two years after Miranda. Why did Congress enact that legislation and, in particular, its Section 3501? What did the section mean in the beginning and what does it mean today? Third, on the Dickerson case, what central themes is the Court likely to address when it hears and decides the Dickerson case and what might the result mean to Congress, to the Supreme Court, and to the rest of us? Fourth and finally, why does all of this matter?

But now let me depart from the debate of the moment, the topic of the moment, and bring you some of the background that I think will help the debaters proceed more rapidly when their time begins. For many years before Miranda, the Court had been concerned about involuntary or coerced confessions by criminal suspects. In 1936 in a famous case, Brown v. Mississippi,(3) the Court had excluded from evidence the confessions of three black men, confessions which had literally been beaten out of them by sheriff's deputies. At that time the Fifth Amendment did not apply to states and Brown was a state case. The Brown decision was based on the Fourteenth Amendment's Due Process Clause.

As time went on, in federal prosecutions the Court relied upon the Due Process Clause of the Fifth Amendment to overturn confessions that had been deemed coerced. Later the Court would articulate another basis for excluding coerced confessions in federal cases: the Court's own supervisory power over procedures in the federal system. Still later, the Court began relying upon the Sixth Amendment right to counsel as an antidote to involuntary confessions. First, it applied the right to counsel in a confessions case in federal court.(4) The individual involved had already been indicted before making admissions to a co-defendant who was cooperating, and the Court ruled that the Sixth Amendment attaches after one has been indicted. In 1964, the Court extended the right to counsel to another confessions case, but this time it was a state case.(5) Now recall that just the year before in 1963 in Gideon v. Wainwright,(6) the Court for the first time had extended the Sixth Amendment to state cases, but only, at that point, at trial. In 1964, in the case of Escobedo v. Illinois,(7) the Court extended...

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