'You have the right to an attorney,' but not right now: combating Miranda's failure by advancing the point of attachment under article XII of the Massachusetts Declaration of Rights.

AuthorDearborn, D. Christopher
PositionThe Massachusetts Constitution of 1780

    Over forty years' worth of popular culture has led most Americans to believe that they have a "right to an attorney" upon arrest. (2) We have watched this familiar scene unfold in countless movies and television shows: the police close in on the lone (and undoubtedly guilty) suspect, pin him against a wall, slap on the cuffs, and triumphantly recite his "Miranda warnings," which apparently include the right to counsel. Technically, officers here are referring to a suspect's limited Fifth Amendment right, upon "clearly" and "unambiguously" invoking it, (3) to the presence of an attorney before custodial interrogation by the police. (4) This idea would probably strike most people as extremely sensible--that, upon arrest, you should have the opportunity to speak with a lawyer even if you cannot afford to hire one. However, the "right" guarantees neither access to a lawyer to explain the procedural complexities of a criminal case, nor unbiased, professional advice on whether it is prudent to waive any constitutional protections. (5) Rather, Miranda only guarantees the right, once affirmatively invoked, to not be asked questions by the police outside the presence of an attorney. (6) As a practical reality in Massachusetts, that opportunity rarely ripens until after an arrestee is transported to court and a lawyer is appointed to represent him. (7)

    When police recite a suspect's Miranda warnings, they implant in him an expectation that is not legally cognizable. (8) The misleading reality is that an arrestee has the right to an attorney, but not right then. (9) In Massachusetts, this right may not actualize for the better part of four calendar days. (10) Accordingly, an indigent person under arrest might be confused and surprised to learn that his "right" to speak with an attorney, let alone have face-to-face access to an attorney, vests only after he is taken to court. (11) In the meantime, that individual is confronted with a highly trained interrogator whose initial goal is convince the suspect to cast away his constitutional protections by signing a "Miranda waiver." (12) The suspect may have the right to speak to an attorney, but unless he knows one to call, he must fend for himself until he is finally brought to court and formally charged. (13)

    In the forty years since Miranda was decided, police have consistently employed coercive tactics and extracted false confessions (14) while the United States Supreme Court and the Massachusetts Supreme Judicial Court (SJC) have continued to insist in the vast majority of instances that the mere recitation of a suspect's rights is sufficient to protect him against determined law enforcement officers. (15) The protections embedded in these rights ostensibly exist because the Supreme Court and the SJC have recognized that lay people are ill-equipped to understand criminal procedure and to fully understand the rights they may be waiving. (16) Yet these crucial public policy concerns--that a suspect speak with an attorney to properly understand his rights and determine whether it is wise to speak with police--are typically not addressed until the court appoints a lawyer. (17) Both the Supreme Court and the SJC have determined that the right to counsel in the constitutional sense is only triggered by "formal adversarial proceedings." (18) Only then, courts have found, does a suspect face the full force of the government (and not just the persuasive skills of a highly trained police interrogator); only then does a suspect graduate from a mere "suspect" to an "accused." (19) Indeed, many have criticized the involvement of a lawyer prior to this critical stage as an impediment to police investigation, thereby undercutting the ability to obtain a confession. (20)

    The current point where the right to counsel attaches under both federal and Massachusetts jurisprudence runs directly counter to the SJC's expressed vision to "actualize" the rights afforded citizens under the Massachusetts Constitution. (21) The same policy justifications courts have relied on in requiring the advice of counsel at the earliest adversarial proceeding are equally pressing at the time of arrest. (22) Put another way, the police bat leadoff for the government, and, as soon as a suspect is placed in custody and facing possible interrogation, the game begins and that suspect is unequivocally playing for the other team. (23)

    The dilemma of just when this right "actualizes"-or, in constitutional parlance, "attaches"-implicates both the right to counsel under the Sixth Amendment and the limited right to counsel embedded in the Fifth Amendment's protection against compelled self-incrimination. (24) Despite this overlap, the interplay between arrest and the right to counsel has been viewed primarily as a Fifth Amendment issue. (25) Yet analyzing this issue under the self-incrimination clauses alone muddies the water because the limited right to an attorney in that context is part of a "prophylactic" rule derived from constitutional principles rather than the text of the Fifth Amendment. (26) A simpler, cleaner solution would be to rely on the Sixth Amendment and conclude that the right to counsel should attach as soon as practicable following arrest, but no later than prior to any custodial interrogation. (27) In other words, the only way to truly actualize the limited right to counsel in the Fifth Amendment context is for the Sixth Amendment right to counsel to attach the moment Miranda warnings are required. (28) In Massachusetts, the SJC could accomplish this goal by doing what it has done before: interpreting article XII of the Massachusetts Declaration of Rights (encompassing rights guaranteed by both the Fifth and Sixth Amendments) more broadly than its federal counterpart. (29)

    Part II of this article will explore why Miranda has failed to honor the constitutional principles and notions of fairness it was designed to protect. Part III will discuss why a reformulation of the point of attachment under article XII is both a legally sound and socially justified solution to the failure of Miranda in the Commonwealth of Massachusetts. Part IV concludes by imploring the SJC to alter its jurisprudence accordingly.


    "Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." (30)

    In Miranda, the Supreme Court recognized the insidious and coercive nature of custodial interrogation when it noted, "[i]t is obvious that such an interrogation environment is created for no other purpose than to subjugate the individual to the will of his examiner." (31) The Court therefore reasoned that a suspect would be much less likely to falsely confess if he understood he had an absolute right against self-incrimination. (32) By requiring police to recite a suspect's constitutional rights, while at the same time offering that suspect a theoretical "right" to speak with an attorney, the Court believed it had once and for all solved the problem of compelled self-incrimination. (33) Yet if Miranda sought to eliminate coerced self-incrimination by giving each suspect the unfettered choice to remain silent, it has utterly failed. (34) What the Court did not (and perhaps could not) realize was that the forms of psychological coercion it sought to address would simply be refined and replaced with equally sinister forms of manipulation. (35)

    1. The Supreme Court's Historical Efforts at Honoring the Right Against Compelled Self-Incrimination

      1. Pre-Miranda

        Prior to Miranda, the Supreme Court analyzed the constitutionality of confessions through the Due Process Clause of the Fourteenth Amendment. (36) Prosecutors were required to demonstrate that a suspect confessed only after making a "knowing and intelligent relinquishment" of his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel-both of which were considered "fundamental" constitutional protections. (37) In spite of these protections, law enforcement officers regularly intruded upon or completely disregarded suspects' rights in relentless pursuit of a confession. (38) Interrogators routinely used "the third degree"-physical and psychological abuse-during "incommunicado interrogations to extract confessions that were later used in court to prosecute defendants." (39)

        The Supreme Court attempted to address these abuses in Escobedo v. Illinois 40 The Escobedo Court was faced with the question of whether the Sixth Amendment's guarantee of the right to counsel in all criminal prosecutions applied to pre-arraignment custodial interrogations. (41) The Court answered in the affirmative, reasoning that even the "most illustrious counsel" would be of little use unless present at any pre-trial examinations. (42) As Justice Goldberg explained:

        In Gideon v. Wainwright, we held that every person accused of a crime, whether state or federal, is entitled to a lawyer at trial. The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the "right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination." (43) In addition to holding that the right to counsel extends to pre-trial interrogation, the Court provided defendants with an additional safeguard by requiring police to advise them of their right to remain silent. (44) Therefore, the state of the law following Escobedo was such that defendants could "actualize" their right to counsel at the time of pre-trial interrogation, which undoubtedly would have led to fewer coerced confessions and a greater chance that defendants prevail during subsequent stages of the criminal prosecution. (45) Unfortunately, the Court has since limited Escobedo to...

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