# Supreme Court slated to reconsider Miranda **URL:** \ **Category:** Great Debates\ **Created:** [November 26, 2002, 7:57pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941 "2002-11-26T19:57:32Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [November 27, 2002, 5:16am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/41 "2002-11-27T05:16:51Z")
Just read **Minty Green** ’s smug reply. I wonder if **Minty Green** is still smug. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 27, 2002, 5:20am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/42 "2002-11-27T05:20:22Z")
Here’s a pdf if you want to save the trip: > **[FindLaw's United States Ninth Circuit case and opinions.](https://caselaw.findlaw.com/us-9th-circuit/1483616.html)** > > FindLaw's searchable database of United States Ninth Circuit decisions since ---
**Author:** ![Max\_Harvey](https://avatars.discourse-cdn.com/v4/letter/m/ac8455/32.png) [@Max\_Harvey](https://boards.straightdope.com/u/Max_Harvey)\ **Post date:** [November 27, 2002, 5:23am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/43 "2002-11-27T05:23:02Z")
> [@](#): > > (quoting Rehnquist) made by a defendant who is aware of his “rights,” Oh, these silly “rights” of ours. Did he make air-quotes with his fingers? Or hold up a sign with a :rolleyes: on it? ---
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [November 27, 2002, 5:37am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/44 "2002-11-27T05:37:42Z")
I apologize for the mulitiple posts, but I would like to publicly retract any negative comment I made about **pravnik**. Nothing in **pravnik** ’s post is incorrect. The 9th circuit did find a constitutional violation. However, the violation had more to do with due process of the 14th amendment than the 5th amendment. I assumed, perhaps incorrectly, that **pravnik** was attempting to bolster **Minty Green** ’s argument. **Minty Green** is still very wrong when s/he attempts to say Miranda and Dickenson clearly a right that is divorced from the 5th Amendment. Some lower court decisions may have found a right in the 14th amendment, but even the 9th circuit recognizes that the 5th amendment alone does not create a Miranda right (see above quote). ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 27, 2002, 5:37am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/45 "2002-11-27T05:37:49Z")
It’s not dishonest at all. It’s authority. You may disagree with it and SCOTUS will very probably agree with you, but there you have it. It’s the law in 9 states until it overruled. How is a lawyer quoting the law being dishonest? Look, I’m not even saying _I_ don’t agree with you. I haven’t made my mind up one way or the other, but I don’t think it’s a no brainer. Courts have certainly come to conclusions I felt went the wrong way before. I’m just saying that the 9th Circuits opinion is a reasonable construction of the Constitution and Supreme Court precedent; that the test is whether the person reasonably believes the evidence is going to be used in a criminal proceeding. Not to be a jerk, but the portion of Cooper you quote was overruled as to the Constitutionality of Miranda. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 27, 2002, 5:38am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/46 "2002-11-27T05:38:08Z")
I’m always smug when I’m right and you’re demonstrably wrong. Clearly, you were not paying attention to Dickerson, where the Court squarely rejected that quote’s notion that “The Miranda warnings and rights are not themselves constitutionally mandated, but are rather procedural safeguards, or prophylactic measures, to ensure that the Fifth Amendment right against compulsory incrimination is not violated.” My how dishonest and decitful of you to quote overturned law and claim that it supports your point. It is particularly dishonest and deceitful because that quote is an introduction to the various _exceptions_ to the Miranda rule on the admissibility of statements contained via custodial questioning. See, the very next statement, which you dishonestly and deceitfully omitted, states as follows: > [@](#): > > For this reason, the Court has allowed the use of statements taken in violation of Miranda requirements in a variety of ways. For example, evidence obtained from a defendant in violation of Miranda requirements may be admissible under the public safety exception (New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)), and a statement taken by police who questioned a suspect after he asked for an attorney can be used at a criminal trial for impeachment purposes (Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975)). Thus, the court is speaking of the _extent_ of the rule, not the existence of the right itself. This is shortly confirmed in further language that you dishonestly and decietfully omitted, to wit: > [@](#): > > Further, the state officials may be deterred by the remedy in Miranda itself, the suppression of the evidence. It appears to us that **if there is to be any harsher penalty imposed for a simple violation of Miranda rights** , we will have to wait for word from Congress or the Supreme Court. And I particularly like footnote 15: > [@](#): > > After all, the Supreme Court has decided that the Miranda warnings are a necessary prophylactic to assure compliance with the Fifth Amendment. Although the only remedy under the case law is suppression of evidence, **the Court probably did not intend to leave it to police discretion when to honor Miranda and when the price is too high**. Dude, that hole you’re digging ain’t getting any shallower. Time to stop digging. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 27, 2002, 5:40am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/47 "2002-11-27T05:40:49Z")
> [@](#): > > \*Originally posted by Pencil Pusher \* > **Minty Green** is still very wrong when s/he attempts to say Miranda and Dickenson clearly a right that is divorced from the 5th Amendment. WHERE THE FUCK DID I SAY ANY SUCH THING? Go on, put it in quotes. Surely, you can demonstrate where I said it, right? Right? Good lord, the elevator just refuses to go to the top floor in this building, doesn’t it? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 27, 2002, 5:42am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/48 "2002-11-27T05:42:36Z")
Well, phooey, I would simulpost that right after as you post a retraction. Nevermind. But still, the case did find a 5th amendment violation as well. The 14th Amendment reference is a nod to Incorporation. ---
**Author:** ![Gaudere](https://avatars.discourse-cdn.com/v4/letter/g/e495f1/32.png) [@Gaudere](https://boards.straightdope.com/u/Gaudere)\ **Post date:** [November 27, 2002, 6:35am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/49 "2002-11-27T06:35:31Z")
\*\* minty green \*\*: > [@](#): > > Good lord, the elevator just refuses to go to the top floor in this building, doesn’t it? [Moderator Hat ON] Cool it, minty. [Moderator Hat OFF] ---
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [November 27, 2002, 6:49am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/50 "2002-11-27T06:49:26Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*You don’t read so good, do ya? \*\* > [@](#): > > \*Originally posted by minty green \* > \*\*Good lord, the elevator just refuses to go to the top floor in this building, doesn’t it? \*\* Add Ad Hominem attacks to taking quotes out of context. > [@](#): > > > [@](#): > > > > \*Originally posted by Pencil Pusher \* > > **Minty Green** is still very wrong when s/he attempts to say Miranda and Dickenson clearly a right that is divorced from the 5th Amendment. Some lower court decisions may have found a right in the 14th amendment, but even the 9th circuit recognizes that the 5th amendment alone does not create a Miranda right (see above quote). > > \*Originally posted by minty green \* > **WHERE THE FUCK DID I SAY ANY SUCH THING? Go on, put it in quotes. Surely, you can demonstrate where I said it, right? Right?** > [@](#): > > \*Originally posted by minty green \* > **No, that is entirely incorrect. The Supreme Court has made it entirely clear–both in _Miranda_ itself and in _Dickerson_ two years agoo–that the warning requirement is a constitutional right, not merely a rule of evidence or procedure.** > > \*Originally posted by minty green \* > \*\*Now, as to the nature and extent of that right (you may recall that as the question I identified above, yes?), here’s some of the language from Miranda that you couldn’t be bothered to quote, establishing unambiguously that its guarantee is a right independent of the remedy of exclusion from trial. \*\* > > \*Originally posted by minty green \* > **It is indisputably, as explicitly stated by the Unites States Supreme Court in both Miranda and Dickerson, a matter of substantive constitutional law. Thus, each of us has a constitutional right to be given Miranda warnings prior to any custodial questioning. (Take particular note of those last two words; they shall be important in a moment.) The only questions are the _extent_ of that right and the _remedy_ available for its violation, not its source.** I love the certainty with which you post. “The Supreme Court has made it entirely clear”; “establishing unambiguously”; “It is indisputably, as explicitly stated.” If it was all so clear, why would the Supreme court need to review the case? Once again, what does the fifth amendment protect? The right to not “be compelled in any criminal case to be a witness against himself.” What are you claiming Miranda indisputably holds? A “right independent of the remedy of exclusion from trial” to be given certain warnings at a custodial interrogation. What is the support for your position? Half-quotes that clearly don’t represent the holding of the cases. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 27, 2002, 7:15am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/51 "2002-11-27T07:15:48Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*42 USC § 1893 confers a civil cause of action against the government in certain circumstances. In general, however, the government is immune from suit under the doctrine of _sovereign immunity_. > > Are you suggesting that people should have the right to sue the government, and its actors, no matter what, for whatever cause they please? > > - Rick \*\* No. I’m just tired of hearing that certain rights don’t exist because they aren’t specifically spelled out in the constitution. ---
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [November 27, 2002, 7:46am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/52 "2002-11-27T07:46:12Z")
> [@](#): > > \*Originally posted by pravnik \* > \*\*Well, phooey, I would simulpost that right after as you post a retraction. Nevermind. > > But still, the case did find a 5th amendment violation as well. The 14th Amendment reference is a nod to Incorporation. \*\* First, let me say that I made a mistake by previously quoting from the wrong Cooper v. Dupnik. I did a google search, and that was the first one I came up with. Sorry. However, I’ve read the case, and I believe there were two alternative grounds. First, a violation of the 5th amendment and second a violation of substantive due process of the 14th amendment. The 5th amendment violation was made, not simply because certain warnings were not given while a suspect was subjected to custodial interrogation, but because Miranda warnings were ignored, and statements were compelled and involuntary. > [@](#): > > Our holding is consistent with the teaching of Michigan v. Tucker, and it does not create a Fifth Amendment cause of action under 1983 for conduct that merely violates Miranda safeguards without also trespassing on the actual Constitutional right against self-incrimination that those safeguards are designed to protect. This case does not establish a cause of action where police officers continue to talk to a suspect after he asserts his rights and where they do so in a benign way, without coercion or tactics that compel him to speak. So, even in the 9th circuit, ignoring Miranda rights are not enough to create a cause of action. Its only when Miranda rights are ignored AND coersion is used. The court then devoted some time to explaining why such an act ripens into “a full-blown Constitutional violation” as soon as it was committed. In my opinion, it was a pretty weak argument. They primarly relied on some dicta of a Mississippi Supreme Court case in order to come to their conclusion. As to the 14th amendment, they said “the Task Force’s conduct unquestionably shocks the conscience, and thus violates substantive due process.” To me, this alternative ground is much stronger. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 27, 2002, 12:55pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/53 "2002-11-27T12:55:07Z")
In light of my own intemperateness, would it still be appropriate to demand a retraction of Pencil Pusher’s patently false assertion that I “attempt to say Miranda and Dickenson [is] clearly a right that is divorced from the 5th Amendment.” Or is a third demand for him to demonstrate where I said any such thing appropriate? He even concedes that he has taken my words out of context and misattributed them when he describes two of my statements as “Add Ad Hominem attacks to taking quotes out of context.” Needless to say, I am less than thrilled with this one’s apparently intentional misrepresentation of my words and position. Nevertheless, the elevator comment was inappropriate on my part, and I apologize. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 27, 2002, 1:37pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/54 "2002-11-27T13:37:27Z")
> [@](#): > > > [@](#): > > > > Are you suggesting that people should have the right to sue the government, and its actors, no matter what, for whatever cause they please? > > \*\*No. I’m just tired of hearing that certain rights don’t exist because they aren’t specifically spelled out in the constitution. \*\* Well, in this particular instance, the general rule is that you have no right to sue the state government or its actors, period. This is the principle ennunciated in the Eleventh Amendment (and extended in _Hanz v. Louisiana_). So the Constitution spells out that you have no right to sue a state. Congress has carved out a set of exceptions to that rule in 42 USC § 1983, which allow citizens to sue the state, or state actors, under certain limited circumstances. The question of whether coercive questioning, or questioning that is otherwise violative of the guarantees of _Miranda_, is one of those limited circumstances is what the Court has now agreed to decide. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 27, 2002, 2:05pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/55 "2002-11-27T14:05:49Z")
As to the meat of the discussion above… The Congressional intent in enacting 42 USC § 1983 was to create a new civil remedy for a state actor’s violation of established federal constitutional rights. It’s unclear to me how pivotal the issue of whether or not _Miranda_’s guarantees arise primarily from the Fifth Amendment, the Fourteenth Amendment, so some mixture thereof. _Miranda_ and _Dickerson_, read together, make clear that the warnings with which we are all so familiar are themselves a constitutionally required procedure. They are, then, a right in and of themselves, not a rule of foundation or evidence. Does § 1983 extend to creating a civil cause of action for a violation of this particular right, especially when there is already an existing remedy - the exclusion of the evidence obtained in violation of this right? Although the Ninth Circuit thinks it does, the Supreme Court may not agree: in _U.S. v. Verdugo-Urquidez_, they said: > [@](#): > > The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial. Admittedly, this was dicta, and based on the reasoning in _Kastigar_, quoted by **pravnik** above, which in turn was based on the old question of use and derivative-use immunity as opposed to full transactional immunity, as discussed first in our old friend _Murphy v. Waterfront Commission_. But this seemingly tangential discussion is quite relevant. If the Fifth Amendment’s guarantees are not breached by compelled testimony coupled with use immunity, then we can safely conclude that a Fifth Amendment violation occurs, as suggested above, at trial, when the self-incriminating testimony is offered against the accused. Were this not so, then transactional immunity would be required for all compelled testimony. - Rick ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 27, 2002, 2:19pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/56 "2002-11-27T14:19:51Z")
> [@](#): > > \*Originally posted by Bricker \* > Congress has carved out a set of exceptions to that rule in 42 USC § 1983, which allow citizens to sue the state, or state actors, under certain limited circumstances. Just to clarify, Congress has the power to waive the states’ 11th Amendment sovereign immunity because the subject of § 1983 is civil rights violations, and Congress was granted the constitutional authority to legislate in that area in the 14th Amendment. Without that specific grant of constitutional authority, Congress could not abrogate the states’ sovereign immunity. ---
**Author:** ![Pencil\_Pusher](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Pencil\_Pusher](https://boards.straightdope.com/u/Pencil_Pusher)\ **Post date:** [November 27, 2002, 4:14pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/57 "2002-11-27T16:14:40Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*In light of my own intemperateness, would it still be appropriate to demand a retraction of Pencil Pusher’s patently false assertion that I “attempt to say Miranda and Dickenson [is] clearly a right that is divorced from the 5th Amendment.” Or is a third demand for him to demonstrate where I said any such thing appropriate? \*\* No and no. Demonstration made, probably to the satisfaction of everyone else present. \*\* > [@](#): > > \*Originally posted by minty green \* > \*\*He even concedes that he has taken my words out of context and misattributed them when he describes two of my statements as “Add Ad Hominem attacks to taking quotes out of context.” > \*\* Take another look at the post. See if you can figure out who I was accusing of both making ad hominem attacks and taking quotes out of context. Hint: Initials are MG. As a bonus, try to explain why this supports my position. Happy Thanksgiving everyone. I will let MG have the last word, as I will not be checking the boards for the next couple of days. I’m sure the response will be a hoot. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 27, 2002, 4:15pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/58 "2002-11-27T16:15:22Z")
Yep. And for completeness’ sake, I should have noted the basis of authority for the Congressional ability to remove, under some circumstances, the states’ Eleventh Amendment immunity. Thanks, **minty** , for the cover. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 27, 2002, 4:18pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/59 "2002-11-27T16:18:41Z")
It’s unclear to me precisely what your position is, **Pencil Pusher** , since your discussion seems to have wound down into taking pot shots at **minty green** rather than explaining the law as you see it. Upon your return, perhaps you could summarize for the slow among us, into which category I cheerfully place myself, precisely where you are now in this debate. Especially in light of _Verdugo-Urquidez_’s dictum. - Rick ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 27, 2002, 4:49pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/60 "2002-11-27T16:49:09Z")
Ah, so I’m the one taking quotes out of context, eh? I assume you can demonstrate that too, right? Just like you can demonstrate where I’m divorcing Miranda from the 5th Amendment? Forgive me if I don’t hold my breath. Meanwhile, some futher Supreme Court authority showing that the right attaches at the time of the custodial interrrogation, not the time of trial. From _Rhode Island v. Innis_, 446 U.S. 291 (1980): > [@](#): > > We conclude that the Miranda safeguards come into play **whenever a person in custody is subjected to either express questioning or its functional equivalent**. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. **This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices** , without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. And let’s not overlook _Edwards v. Arizona_, 451 U.S. 477 (1981): > [@](#): > > In Miranda v. Arizona, the Court determined that **the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.** 384 U.S., at 479 . The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, “the interrogation must cease.” If he requests counsel, “the interrogation must cease until an attorney is present.” Id., at 474. > > **Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.** That the use of a non-Mirandized confession at trial violates the defendant’s Fifth Amendment rights by no means forecloses the repeated statements of the Supreme Court and lower courts that the suspect has a prophylactic, constitutional right to be informed of the Miranda warnings before any custodial interrogation occurs. Whether the initial, non-trial violation of Miranda leads to the remedy of civil damages under section 1983 is a separate inquiry from the existence of the right, which is well established in Supreme Court jurisprudence. [Previous page](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941.md?page=2) [Next page](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941.md?page=4)