We are fast-approaching the 45th anniversary of Miranda v. Arizona. This landmark 1966 Supreme Court case has become a mainstay of every law school classroom and nearly every lawyer-cop show on television. Almost anyone can recite the words by now: “You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to the presence of an attorney…” And if you are an indigent, you have the right to have an attorney appointed for you.
Under Miranda, law enforcement must give warnings whenever a suspect is in police custody, before an interrogation. The reason is to protect the suspect’s Fifth Amendment right against self-incrimination. This is especially relevant to clients taken into police custody after a vehicle search and seizure turned up drugs or other potentially incriminating evidence. Yet even though Miranda appears to have been embraced by the mainstream, it has been under attack since the very beginning. Many (including Richard Nixon) complained that it would undermine law enforcement’s ability to go after serious criminals. Since 1966, law enforcement officials have looked for ways around the Miranda warnings. Sometimes they were thwarted by the Supreme Court, but too often – especially in recent years – they received its sanction.
In 2004, a plurality of the Court shot down a common police practice of withholding Miranda warnings until after they had interrogated the suspect in Missouri v. Seibert. Yet it introduced the idea that the pre-warning confessions could remain valid if the warnings were withheld “in good faith” – however ill defined. Six years and a few new Supreme Court justices later, we had Berghuis v. Thompkins. Here, the Court held that suspects who wanted to exercise their “right to remain silent” had to say so specifically. Speak for the right not to speak.
So now criminal suspects must do something counter-intuitive in order to exercise their basic rights–that is, if anyone even informs them of their rights in the first place. Suspects can waive their rights if done knowingly and voluntarily, but in reality, they often do so without understanding what’s at stake. Too few suspects have a strong criminal defense attorney at their side when they speak to police. This latest development is destined to put more people in jail.
What will become of Miranda when it reaches its 50th anniversary? Hopefully this important case will still be honored. Yet the current conservative majority on the Supreme Court seems too willing to chip away at its holding. Unless there is a Justice Kennedy or Scalia retirement within the next few years, the Berghuis majority will be there to leave its mark on the next Miranda case. It will then be more important than ever for a suspect to have an experienced federal defense attorney at his side during questioning.