# 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:** 4
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 27, 2002, 5:43pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/61 "2002-11-27T17:43:43Z")
:ducking under the flying mud between **minty** and **pencil** First, some other caselaw: In Weaver v. Brenner, 40 F.3d 527, 535 (1994), the second circuit held that it was possible for a person to sue under 1983 for the use of coerced confessions. In Rex v. Teeples, 753 F.2d 840, 843 (1985), the 10th circuit held that “[e]xtracting an involuntary confession by coercion is a due process violation,” and is actionable under § 1983. Interesting enough, SCOTUS denied the writ of cert. on the Rex case. I think it is relatively clear to most people, that **Dickerson** greatly strengthened the argument that obtaining a coerced confession (or if you want to take it even farther, if the police do not read someone their Miranda rights) should be actionable under 1983. Prior to **Dickerson** , most of the appellate courts had held either 1) **Mirand** was prophylactic, and thus did not amount to an action under 1983, or 2) The violation only occurs if the statement is used. (which is what **Bricker** pointed out by citing U.S. v. Verdugo-Urquidez). After **Dickerson** , the cases limiting 1983 actions for the first reason are going to be seriously undermined. I’m guessing here, but I think SCOTUS will rule that there may be an action for obtaining a coerced confession, but not for a simple violation of Miranda. After their ruling in **Dickerson** , I think they don’t have much of a choice. ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/62 "2002-11-27T18:52:21Z")
You know, as I re-read the Ninth Circuit’s case, it occurs to me that the existence of a § 1983 claim is taken almost as a _fait accompli_; the ruling denies the defense of qualified immunity available under § 1983 to an officer who didn’t know his actions were violative of an established civil right. Not that it makes much difference, now that they’ve granted cert, but the actual issue at issue, so to speak, is narrower than I first imagined. - 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, 7:12pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/63 "2002-11-27T19:12:58Z")
> [@](#): > > \*Originally posted by Hamlet \* > I’m guessing here, but I think SCOTUS will rule that there may be an action for obtaining a coerced confession, but not for a simple violation of Miranda. I suspect that’s about right, although there’s also some potential liability there for the attempted use of coercion. Martinez didn’t confess to anything, after all, but the officer’s repeated attempts to elicit information from him in such extreme circumstances, despite Martinez’s repeated requests not to be subject to questioning, could lead to 1983 liability even without a confession. I’d agree, though, that the Court is quite unlikely to endorse 1983 liability for a non-coercive custodial interrogation (putting aside Miranda’s notion that custodial interrogations are “inherently coercive”). ---
**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, 7:23pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/64 "2002-11-27T19:23:18Z")
Civil law guys (not me, obviously!): is there a remedy against the officer for these actions other than what § 1983 might provide? In other words, do states routinely waive their own immunity and permit themselves or their actors to be sued under such circumstances? ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/65 "2002-11-27T20:05:56Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*Civil law guys (not me, obviously!): is there a remedy against the officer for these actions other than what § 1983 might provide? In other words, do states routinely waive their own immunity and permit themselves or their actors to be sued under such circumstances? \*\* Sometimes. Certain states have state tort claims acts or statutory provisions waiving sovereign immunity to the extent covered by insurance. Some may go farther than that (I’m trying to think they do) but I don’t remember off the top of my head. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 27, 2002, 8:22pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/66 "2002-11-27T20:22:13Z")
Thanks, everyone. Obviously most of this conversation has left the realm where I feel comfortable even pretending like I know what I’m talking about, but the discussion is none the less still fascinating. > [@](#): > > As for your experiences being interrogated, I would have to ask if you were aware in those cases that you had a right to refuse. If you were, I don’t know why you felt coerced. Perhaps this is why the court feels that custodial questioning is inherently coercive? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 27, 2002, 8:29pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/67 "2002-11-27T20:29:58Z")
That was a quote from **Izzy** , BTW. ---
**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, 8:44pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/68 "2002-11-27T20:44:29Z")
Sorry about the shit-slinging in your thread, **erl**. If you were wondering about the nature and extent of the constitutional guarantee, however, we may have inadvertently hit you with a few useful points. 😉 ---
**Author:** ![Truth\_Seeker](https://avatars.discourse-cdn.com/v4/letter/t/5fc32e/32.png) [@Truth\_Seeker](https://boards.straightdope.com/u/Truth_Seeker)\ **Post date:** [November 27, 2002, 8:47pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/69 "2002-11-27T20:47:52Z")
> [@](#): > > \*\*I’m guessing here, but I think SCOTUS will rule that there may be an action for obtaining a coerced confession, but not for a simple violation of Miranda. After their ruling in Dickerson, I think they don’t have much of a choice. \*\* Yes. Exactly. The cause of action for a violation of the U.S. constitution under 1983 isn’t complete unless there is _injury_. If an un-Mirandized suspect blurts out a confession during friendly questioning by police, the suspect suffers no actual harm unless the statement is somehow used. If, on the other hand, the interrogation is coercive, the suspect suffers harm even if he or she says nothing at all. Suppose, for example, the suspect is denied food, water and sleep until he confesses. Clearly, the constitutional violation is complete even if the suspect never confesses. In this case (though I don’t know all the facts) a court could easily find that interrogating someone who has five bullet holes in him does amount to a deprivation of a constitutional right, especially if this questioning resulted in a delay in administering medical care. The key point, however, is that this has nothing to do with failing to read a suspect his Miranda rights and everything to do with a substantive violation of the rights of a subject in custody. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 27, 2002, 9:25pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/70 "2002-11-27T21:25:32Z")
Just a free bit of advice from my attorney. 1. If they do read you your rights- shut the fuck up and don’t say anything besides “I want to see a/my attorney”. Even if you are as innocent as the baby Jesus. 2. If they are asking you some questions, and you don’t like the way things are heading- ask “am I free to go now?”. If the answer is “no”, you are in “custodial questioning”, ie for some purposes you are “under arrest”- so see #1. If the answer is “yes”- why not leave? However, here is one part of Miranda I do not understand the reasoning behind- the “fruit of the poison tree” thing. Say a dude tells the police where the gun and/or body is, but they obtained that illegally, thru a tricked non-miranda confession. OK, I buy that the confession itself is not admissable. But why not the evidence thus garned? I mean- by not admiting that evidence- you are punishing “the people”, and not the officers who violated the perps rights. I say- admit the evidence, but fire the cops. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [November 27, 2002, 9:42pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/71 "2002-11-27T21:42:23Z")
Basically fruit of the poisonous tree is not admissible because it would be contrary to fundamental notions of fairness to say that the actual confession is inadmissible but whatever other evidence the police get as a result of that confession is admissible… it would result in there being no real protection at all, just an illusory protection of keeping the “words” out at court. You can read the [Wong Sun Opinion](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=371&invol=471) here. One relevant part is: > [@](#): > > In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, 116 U.S. 616 , this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383 . The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, [371 U.S. 471, 485] 251 U.S. 385 . Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” 251 U.S., at 392 . For example, let’s say you confess to the police that you murdered your noisy neighbor and tell them where they hid the gun. Does it really “protect” your rights against coerced confessions if the court says your words can’t come in at trial but the gun with your fingerprints all over it can? ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [November 27, 2002, 9:44pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/72 "2002-11-27T21:44:46Z")
… and I meant to add that the exclusionary rule and the fruit of the poisonous tree doctrine aren’t so much about “punishing” the cops or the people, but are really more about “protecting” and giving meaning to the Constitutional rights of the accused… ---
**Author:** ![Spiritus\_Mundi](https://avatars.discourse-cdn.com/v4/letter/s/c68b51/32.png) [@Spiritus\_Mundi](https://boards.straightdope.com/u/Spiritus_Mundi)\ **Post date:** [November 27, 2002, 10:13pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/73 "2002-11-27T22:13:52Z")
**IzzyR** , I think I understand your position re: coersion, but I wonder if things can really be so neatly divided. What about a person who is willing to answer questions, but does not know that he is entitled to representation even if he cannot afford to pay for it? When the police start to ask him questions, has he been coerced? > [@](#): > > As for your experiences being interrogated, I would have to ask if you were aware in those cases that you had a right to refuse. If you were, I don’t know why you felt coerced. Since none of the cases was being handled under US law, I truly do not know whether I had the right to refuse. In one case, I suspect not. In the others, I suspect yes. In one case I did have an “advocate” under the UCMJ, but he was not JAG and I had absolutely no confidence in his desire to protect my interests. Frankly, even knowing in all three cases that I was innocent, the experiences gave me a deep appreciation for the psychological impact of enforced custody and interrogation. ---
**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, 11:18pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/74 "2002-11-27T23:18:30Z")
> [@](#): > > \*Originally posted by Spiritus Mundi \* > \*\* > > Frankly, even knowing in all three cases that I was innocent, the experiences gave me a deep appreciation for the psychological impact of enforced custody and interrogation. \*\* Good point. Perhaps those who think that the accused has “too many rights” should spend 6 months or so every decade under the thumb of a sadistic non-com who thinks you are a real \*\*\*\* \*\* and has the whole weight of the US government on his side. This never happened to me, I got along just fine in the army. Just the same, I saw some others who got crossways when they were first inducted and the word followed them from place to place. Their experiences were not pleasant. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 28, 2002, 2:45am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/75 "2002-11-28T02:45:39Z")
> [@](#): > > \*Originally posted by Spiritus Mundi \* > **IzzyR** , I think I understand your position re: coersion, but I wonder if things can really be so neatly divided. I’m not sure if they can. But this is common. Much of the judicial system is kept busy deciding how to rule on ambiguities in the laws and and at the edges of legal principles. > [@](#): > > What about a person who is willing to answer questions, but does not know that he is entitled to representation even if he cannot afford to pay for it? When the police start to ask him questions, has he been coerced? Not sure if I understand this. My position here is that if the entire coersion based on the ignorance of the citizen as to his rights, there is no coersion by the state. I’m don’t see why this case would be any different. ---
**Author:** ![Spiritus\_Mundi](https://avatars.discourse-cdn.com/v4/letter/s/c68b51/32.png) [@Spiritus\_Mundi](https://boards.straightdope.com/u/Spiritus_Mundi)\ **Post date:** [November 28, 2002, 3:47am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/76 "2002-11-28T03:47:15Z")
Got it. Ignorance of action is coersive, ignorance of the legality of an action is tough luck. I certainly don’t agree, but I think I understand your position. Just to clarify anothe rpoint: is it coersive for teh government to tap your phone after obtaining a warrant? ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 28, 2002, 3:57am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/77 "2002-11-28T03:57:33Z")
Yes ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2002, 4:19am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/78 "2002-11-28T04:19:27Z")
> [@](#): > > 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. I wouldn’t call it “limited”, since civil rights violations can fall into a broad category. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 28, 2002, 4:21am UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/79 "2002-11-28T04:21:03Z")
On further reflection, i may have misunderstood your question. clearly the guy is being coerced into having the wire-tap. I wouldn’t necessarily say that he was being coerced into confessing on it. If your point was indeed the latter, I would observe that wire taps appear to be legal even under Miranda, so I’m not sure how it relates to my position. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [December 2, 2002, 8:38pm UTC](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941/80 "2002-12-02T20:38:11Z")
Just in case anyone is still interested, this case is scheduled to be argued on Wednesday, December 4th. There’s a bit of a description here: [AP Findlaw Story](http://news.findlaw.com/ap_stories/a/w/1154/12-2-2002/20021202051501_26.html) I think it perhaps strains the likely results of this case to suggest, as the article does, that “[t]he blanket requirement for a Miranda warning . . . could end up in the rubbish bin of legal history.” It seems to me that this case is really just about how far the right extends and that even if the Court concludes that Martinez cannot rely on the violation of his Miranda rights to defeat the officer’s qualified immunity defense, the right will still exist and the warning will still have to be given if the state intends to introduce statements against a defendant in a criminal trial. I’m in the process of reading the briefs submitted by the US and Martinez. So far it’s pretty interesting reading… at least it is if you dig reading legal arguments and analysis. [Previous page](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941.md?page=3) [Next page](https://boards.straightdope.com/t/supreme-court-slated-to-reconsider-miranda/138941.md?page=5)