Guest Editorial

Miranda challenged in federal criminal cases

The U.S. Court of Appeals for the Fourth Circuit recently held that 18 USCS section 3501 - and not Miranda - governs the admissibility of confessions in federal court. The decision has been appealed to the U.S. Supreme Court, and if it is sustained, the protection the Miranda warning has provided for more than 30 years, particularly to the poor and uneducated, will be drastically reduced.

By Robert W. Landry

On Feb. 8, 1999, the U.S. Court of Appeals for the Fourth Circuit, by a vote of two judges to one, ruled that the 33-year-old Miranda case was passé and its famous rubric no longer was required to admit in evidence a defendant's confession in a federal criminal case. This decision has dubious precedential merit, but if it is sustained on appeal to the U.S. Supreme Court, the protection the Miranda warning has provided for more than three decades, particularly to the poor and uneducated, will be drastically reduced. In addition, there would be a return to the free-for-all courtroom battles so common in pre-Miranda trials regarding due process, Fifth Amendment rights, and equal protection in confession contests.

The Virginia appeals court said, "[W]e hold that Congress, pursuant to the power to establish rules of evidence and procedure in the federal courts, acted well within its authority in enacting 18 USCS sec. 3501. As a consequence, sec. 3501 rather than Miranda, governs the admissibility of confessions in federal court."¹

Dickerson was charged with conspiracy, four counts of bank robbery, and three counts of using a firearm in relation to a crime of violence. Dickerson filed motions in the trial court to suppress certain statements, which were granted based on Miranda. The trial court held that the statements could not be used in the government's case in chief because the Miranda warning was not timely given but ruled that they could be used for impeachment purposes, on the grounds that Dickerson had been accorded due process in the course of his interrogation by law enforcement officers.

After the government's motion to reconsider the admissibility of Dickerson's confession was denied by the trial court, the government appealed, arguing before the Federal Court of Appeals that the trial court abused its discretion. The government offered to prove that Dickerson received a Miranda warning prior to giving the statements in the form of written documents signed by Dickerson acknowledging that he was timely warned. Because the government failed to offer this evidence when the motion to suppress was first heard, the trial court refused to change its original order to suppress. 18 USCS section 3501 was not presented or argued.

The government appealed the order denying the motion to reconsider. The court of appeals reversed the trial court remanding the case with instructions to admit the confession. It said the confession was admissible under section 3501, which replaced Miranda.

Precedential effect

On appeal, neither the government nor Dickerson relied upon section 3501. It was not briefed by them nor was it argued. An amicus brief was filed by the Washington Legal Foundation: Safe Streets Coalition arguing that section 3501 replaced Miranda. A majority of the court agreed. It remanded the case to the trial court with instructions to allow the disputed statements of Dickerson in evidence.

In his dissent, Circuit Judge Michael said, "We perform our role as neutral abettors best when we let the parties raise the issues and both sides brief and argue them fully." And, "It is sound judicial practice for us to avoid issues not raised by the parties." In further support of his dissent he cites Davis v. United States: "This is not the first case in which the United States had declined to invoke sec. 3501 before us - nor even the first case in which the failure has been called to our attention."²

It is unusual for a case to be decided on a theory of law that is not argued by the parties. The strength of the American justice system depends to a large degree on its adversarial nature where disputes are resolved by an intellectual battle between conflicting points of view. Arguments on one side are balanced with arguments on the other with a reasonable expectation that the court will then be able to make a well-considered decision. This was not done in the Dickerson appeal. Neither side presented briefs or argument on one side or the other. On such an important issue as discarding Miranda, it is difficult to justify the appeal court's impetuosity. It puts the precedential effect of the decision in peril.

The Miranda decision

On June 13, 1966, the U.S. Supreme Court handed down the momentous case of Miranda v. Arizona.³ Some predicted terrible and disastrous consequences, and a collapse of our criminal justice system. Others cautiously hoped that it would produce a major improvement by setting a yardstick for determining due process and voluntariness when judging admissibility of confessions. After 33 years of use throughout the United States the debate continues, and each person is free to judge the historic consequences.

Chief Justice Earl Warren wrote the majority opinion in Miranda. He said, "As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently."

The privilege against self-incrimination, an essential mainstay of the American adversary system, has its constitutional foundation in the respect a government, state or federal, must accord to the dignity and integrity of its citizens. The poor, the uneducated, the inexperienced, and minorities are particularly vulnerable to interrogation tactics of law enforcement officers. It may not be presumed that they know their rights, nor is circumstantial evidence sufficient to constitute a waiver of their rights. They are easier targets to extract confessions from than the rich, intelligent, experienced, and powerful. Some will argue that that is okay. The Supreme Court did not think so, and prescribed the warning that we now take for granted. The warning, of course, does not make a confession admissible automatically. The defendant must freely, voluntarily, and intelligently waive his or her right to remain silent. That subjective test is made after there is sufficient evidence that the warning was properly given. With a few exceptions, the warning requirement works well, and the prediction that confessions would dry up as a consequence has not happened.

Effect of Miranda at trial

In spite of the warning given to an accused required under Miranda, confessions continue to be used in the prosecution of criminal cases. Surprisingly, the number of confessions has not perceptibly changed, but the ease with which the issues pertaining to them has. A judicial hearing out of the presence of the jury is conducted to determine whether or not the confession may be admitted in evidence. If it is allowed in evidence, the case before the jury proceeds including testimony surrounding the confession. The defendant may challenge the weight to be given to the confession - as is the case with all evidence. However, the trial pattern is completely different from pre-Miranda trials.

In pre-Miranda trials the issue of voluntariness of the confession frequently became the main issue in the case. The government was placed on the defensive, and the accusatory claims of the defendant about the misconduct of the officers became more important than the charges against the accused. Even when there was little or no defense offered, the trial would be extended because the defendant would raise the specter of a coerced confession and change the focus of the trial to misconduct on the part of law enforcement - sometimes with good reason.

Under Miranda, those issues are decided in a motion before the court on whether the warning was properly and timely given and whether there was a free and intelligent waiver of the defendant's rights. This explicit standard gives notice to law enforcement exactly what it has to do to meet constitutional requirements. Prior to Miranda even judges were in doubt about those requirements. So, for the first time in American judicial history, a uniform standard was established on the admissibility of confessions. More uniform application of the law (equal protection), more orderly and efficient administration of justice, and a better focus on the substantive issues at trial are all benefits that the court system has enjoyed because of Miranda, without compromising either the rights of the accused or the best interests of the public.

Conclusion

In conclusion, I believe that Miranda is good law for the following reasons:

1. It accomplishes the purposes for which it was intended - to protect the individual against the powers of the state in accordance with the U.S. Constitution;
   
   
2. It is accepted by sheriffs and police as a workable and reasonable guideline that does not compromise the effectiveness of law enforcement;
   
   
3. Criminal trials are conducted with greater integrity and efficiency due to the sanitizing effect of Miranda; and
   
   
4. The Dickerson case fails to weigh in as reliable precedentiaal authority for substituting 18 USCS section 3501 (1998) for Miranda v. Arizona.

The fate of this case will be exciting to follow because it may forecast the posture of the U.S. Supreme Court relative to other Warren Court decisions. If review is accepted and the decision is affirmed, its effect may be postponed because it is the policy of the Department of Justice not to substitute the federal statute for Miranda and it is unlikely that Attorney General Janet Reno will change that policy in spite of affirmation.

It is ominous that a high federal court would take an uncharacteristic prosecutorial role in an opinion that undermines a long-standing constitutional protection in the guise of enlightened public interest and scholarship. If decisions such as this go unnoticed, no one can predict what mischief they may cause. Vigilance and assertiveness are essential to protect the legal system from erosion whether by judges with personal agendas or by persons with special interests.

Endnotes

¹ United States v. Dickerson, U.S. Court of Appeals for the Fourth District, No. 97-4750 (1999).

² Davis v. United States, 512 U.S. 452 (1994) at 463.

³ Miranda v. Arizona, 384 U.S. 436 (1966).

Robert W. Landry, U.W. 1949, is a retired Wisconsin circuit court judge, having served on the trial bench in Milwaukee for 40 years. He participated in the transition from pre- to post-Miranda.

Wisconsin Lawyer