Supreme Court slated to reconsider Miranda

[Blalron]

Are you suggesting that people should have the right to sue the government, and its actors, no matter what, for whatever cause they please?

Not for whatever reason they please, but if the government or officers of the government are deliberately and maliciously violating peoples civil liberties, they should be prone to civil suits instead of just a mild judicial slap on the wrist (“don’t do that!”).

[Pencil_Pusher]

*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. You are free to disagree with the Court’s reasoning, but that is the law of this country.
**

As you described it, Miranda is not a constitutional right. Specifically, you said “this guy gets to sue for monetary damages for being interrogated without being properly warned in accordance with Miranda.” Wrong, wrong, wrong.

In order to nip any backpeddling in the bud, let me say that, in certain circumstances it might be correct to say “Miranda is a constitutional right.” If you were using the word “Miranda” as a shorthand of “the requirement that suspects be told certain rights prior to a confession being admissable” you would be correct. As Dickerson says, “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

However, that clearly wasn’t how you were using the term “Miranda.”

You were stretching the Miranda holding to its broadest (and, in my opinion absurd) limits, and then claiming that it is a constitutional right.

I can just see it now. A policeman walks up to a citizen and asks, “what time is it?” The citizen gets to sue the state. Ridiculous.

[pravnik]

I don’t get it…how was minty wrong? His saying “This guy gets to sue for monetary damages for being interrogated without being properly warned in accordance with miranda” is just a description of what the person in the OP news item is trying to do, sue for damages under 1983 for being interrogated without being mirandized. So far as I know, nobody has ever tried it before this (if so, nobody’s ever suceeded).

Also, miranda wouldn’t apply to a “what time is it?” type question in any case…not custodial interrogation.

[minty_green]

You don’t read so good, do ya?

Originally posted by Pencil Pusher
As you described it, Miranda is not a constitutional right. Specifically, you said “this guy gets to sue for monetary damages for being interrogated without being properly warned in accordance with Miranda.” Wrong, wrong, wrong.

Wrong, wrong, wrong. I said that is the plaintiff’s argument, as vaguely described by the article in the OP. And of course, that has nothing whatsoever to do with whether Miranda is grounded in the Constitution or rules of procedure and evidence. 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 can just see it now. A policeman walks up to a citizen and asks, “what time is it?” The citizen gets to sue the state. Ridiculous.

Not merely ridiculous, but also wholly inapplicable. You see, Miranda only applies to custodial questioning. If a cop walks up to you on the street and asks you what time it is, guess what? You ain’t in custody. Miranda is not triggered. Nobody sues no one for nothin’.

[pravnik]

Goodness. A temporal/substantive simulpost.

[minty_green]

Yeah, Pravnik, but you really need to work on that economy of words thing you’ve got going there.

Actually, I’ll try to make this concept as simple as I can, in hopes that it addresses Pencil Pusher’s misconception: The existence of a constitutional right, such as Miranda, does not necessitate a constitutional right to monetary damages for a violation of that right.

The right and the remedy are separate inquiries. What the Supreme Court will be deciding here is the availability of a particular remedy (monetary damages) under a particular statute (42 U.S.C. sec. 1983) for a violation of a particular constitutional right (Miranda).

There is, incidentally, no question that the cops here violated Miranda. Even if they had given Mr. Martinez the proper warnings when he was taken into custody, the cops violated the rule when they continued to press him even after Martinez asked that the questioning be ended, as shown in the following tape recorded exchange:

In the emergency room, Chavez continued to press Martinez to tell him what happened. . . .

 In the emergency room, he is heard asking Chavez several times to leave him alone. "I don't want to say anything anymore."

 "No? You don't want to say what happened?" the sergeant continues.

 "It's hurting a lot. Please!" Martinez implores, his words trailing off into agonized screams that tear through the room.

 Undaunted, Chavez resumed. "Well, if you're going to die, tell me what happened." 

[minty_green]

Actually, now that I think about it, that doesn’t implicate Miranda at all. Continuing to question the suspect after he has asked that the questioning stop is a violation of the right against self-incrimination. That’s one of the bases of Miranda, of course, but not the same thing. My apologies for the confusion–it’s been a while since Crim Pro.

[IzzyR]

*Originally posted by Spiritus Mundi *
Do you feel in all things that government agents should be allowed to do whatever they wish unless a citizen positively asserts a right to the contrary?

The one qualification that I can think of offhand is that there should be no coercive element other than the mere fact that the citizen is unaware of his rights to resist. So that if the government seized your property without due process, they would be in violation even if you failed to assert your rights in this regard. But if the government sent a letter to your house asking if you wanted to donate your property to the government, they would not be in violation, even if you were under the mistaken impression that you had to give it to them. (You might get it back under contract-under-false-pretenses grounds – I don’t know).

Similarly here, I’ve noted that if the cop told the arrestee that he had to answer the questions, that would be coercive and in violation of his rights. But if they merely asked him questions and the guy answered out of ignorance of his rights, that should not be a violation.

I can’t guarantee that I’ve thought of every possibility and every qualification, but it seems consistent to me at this point.

[minty_green]

Izzy: That’s basically the way the law worked before Miranda. But when the touchstone was coercion, it frequently necessitated a broad inquiry into the facts and circumstances of the defendant’s statements. Identifying what is coercion and what isn’t was often very difficult, particularly when (as would so often occur) the testimony of the cops and the suspect was conflicting. Judges hate dealing with that crap, and they’re the ones who have to make those calls.

One of the very beneficial side-effects of the Miranda ruling, however, was to drastically reduce the number and scope of the disputes that inevitably arose when the prosecutors sought to use a confession against the defendant. Under Miranda, once the defendant has been given the proper warnings, it is presumed that his subsequent statements were given voluntarily and free of coercion. In practice, it is next to impossible to overcome that presumption. Thus, the inquiry is basically reduced from a million and one things about the circumstances of the interrogation to a simple question of whether the defendant was warned–and the defendant is always warned.

Bet you never knew law intended to protect the rights of criminal suspects made it so much easier to put 'em behind bars, huh?

[Pencil_Pusher]

*Originally posted by minty green *
**You don’t read so good, do ya? Wrong, wrong, wrong. I said that is the plaintiff’s argument, as vaguely described by the article in the OP. **

I read just fine, thank you. I read that you wrote “the guy has a simple and persuasive argument that boils down to…this guy gets to sue for monetary damages for being interrogated without being properly warned in accordance with Miranda.” I also read that you wrote “that the warning requirement is a constitutional right, not merely a rule of evidence or procedure.” My reading abilities further allow me to watch your argument morph into, “Thus, each of us has a constitutional right to be given Miranda warnings prior to any custodial questioning.”

In fact, my reading abilities are so finely honed, that I can see that you are still wrong in your interpretation of both Miranda and Dickerson. Although your last formulation is close, it still misses a very imporant element, namely, “if the evidence obtained from the custodial questioning is to be used against us as evidence.”

Lets look at the cases, shall we. First, Miranda:

“The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way”

"The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles - that the individual may not be compelled to incriminate himself. "

“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.”

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. . . . But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

And lets not forget Dickerson:

“In Miranda v. Arizona, 384 U. S. 436 (1966), we held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence”

“Accordingly, we laid down “concrete constitutional guidelines for law enforcement agencies and courts to follow.” Id., at 442. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings.”

So stop the lawyer tricks and lets be honest. Miranda is the court’s interpretation of implementation of the 5th amendment. Specifically, the portion of the 5th amendment that prevents someone from being a witness against himself in a criminal case. If you divorce Miranda from the 5th amendment, you are being intellectually dishonest.

Now, if you want to say people there are a penumbra of rights that prevent the government for engaging in coercive interrogations, fine. If you want to say people should have a constitutional right to be free from coercive interrogations merely by the fact that the constitution does not authorize coercive interrogations, fine. However, don’t try to mischaracterize Miranda as requiring certain rights to be explained to someone prior to a coercive interrogations separate and apart from using that information against the person at a criminal trial. That dog just doesn’t hunt.

[Spiritus_Mundi]

The one qualification that I can think of offhand is that there should be no coercive element other than the mere fact that the citizen is unaware of his rights to resist.

Does this apply even when the citizen might not be explicitely aware of the government action? For instance, wiretaps without a warrant would be fine unless the citizen has notified the authorities that he does not wish his phone tapped. Searching your house would be fine if you left the door unlocked when you went to the store. That kind of thing?

What about prohibitions of access. Would it be acceptable for teh government to erect barries restricting a citizen’s ability to access certain places/information? (think both physical barriers and electronic.)

How about rights that are already subject to regulation. Should the government be allowed to arbitrarily deny permits for demonstration/assembly to a group of citizens.

I’m just spinning, here, tring to get a feel for exactly what kind of relationship you think should exist between government actions and civil rights. On a slight tangent, I have to ask you exactly what part of a custodial questioning you find non-coersive? In my life I have been questioned by three separate policing agencies (from 3 different countries, as it turns out) and every encounter felt coersive as hell from my side of the table.

Oh, and nice to see you again, too, minty green

[IzzyR]

minty

I’ve heard such arguments before. As a counterpoint I would note that besides for the times that the police forget to read the rights, it is possible that there has been a decrease in confessions. Apparently even guys who do not think they are being forced to confess will sometimes do so simply because they are confused and eager to convince the cops they are on the up-and-up – they start babbling and next thing you know they confess. By reading them their rights, I would have to imagine that a fair number become cautious and suspicious and clam up.

But I don’t know – it might be that you are right. But that would be a general policy issue for the professionals to decide – you could issue the warnings without a requirement if you felt it was advantageous. I am discussing whether it is a right in an individual case.

[minty_green]

So stop the lawyer tricks and lets be honest.

Words fail me. Fortunately, smilies do not: :rolleyes:

Miranda is the court’s interpretation of implementation of the 5th amendment. Specifically, the portion of the 5th amendment that prevents someone from being a witness against himself in a criminal case. If you divorce Miranda from the 5th amendment, you are being intellectually dishonest.

And I’ve done this precisely where? Do tell. That Miranda is rooted in the Fifth Amendment merely demonstrates that it is a constitutional right. Ya know, exactly what I’ve been saying, eh?
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. All bolding my own, for the purpose of easing your reading pleasure:

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.

To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

In the immortal words of Les Claypool, “Dog will hunt.”

[minty_green]

Izzy: Here’s what Rhenquist (no fan of Miranda) had to say about the procedural benefits in Dickerson:

The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his “rights,” may nonetheless be excluded and a guilty defendant go free as a result. But experience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner. See, e.g., Haynes v. Washington, 373 U. S., at 515 (“The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw”). The requirement that Miranda warnings be given does not, of course, dispense with the voluntariness inquiry. But as we said in Berkemer v. McCarty, 468 U. S. 420 (1984), “[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Id., at 433, n. 20.

And hey, if you can’t trust the man in the Gilbert & Sullivan stripes, who can you trust?

[IzzyR]

Spiritus Mundi,

I would think taking unilateral action without the citizen’s knowledge is about as coersive as you can get. In general, anything the citizen does not have the ability to say no to is coersive. I believe this covers your first three paragraphs.

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. If you did not, I can understand your feeling but don’t consider your rights to have been violated, as earlier (assuming that you had such rights in those countries).

[Pencil_Pusher]

Well, Minty Green, I have nothing further to say, except perhaps to thank you for exemplifying exactly the type of lawyer tricks I had hoped you would avoid. I can do nothing more than point out the dishonesty that is inherent in quoting only a portion of an opinion and then taking that quote entirely out of context.

Yes, the court in Miranda did not tack on the phrase “if the evidence is to be admissable” in every sentance. However, any fair reading of the opinion would recognize that they are talking about admissability, and had not created an entirely new right to be free from coercive interrogations.

To take one of your quotes:

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.

Now, if I were to play your game, I could argue that nothing in that sentance said anything about the questioning being done in the context of a custodial interrogation. Therefore, the police are not allowed to ask any citizen any question without first informing them of their rights. Yep, postal workers are now required to inform you of your rights before asking if you would like the Elvis stamp or the Flower stamp.

Finally, I should note that a careful reading of the second quote doesn’t even support your position.

Procedural safeguards must be employed to protect the privilege

What privilege? The privilege to be free from coercive interrogations? Nope. The privilege to not “be compelled in any criminal case to be a witness against himself.” How can we be sure? Well, the last sentance of the quote says:

But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

Hmmm. I guess I did have something to say.

[minty_green]

Oh, so the Supreme Court spoke of both the right and the remedy. Well, I guess you’ve made your point then. Whatever it is.

BTW, those quotes aren’t “lawyer tricks.” Simply the English language, I’m afraid. Do get back to us when you’ve figured it out, 'kay?

[pravnik]

Heck, while we’re at it:

“The Fifth Amendment protects against any disclosures which the defendant reasonably believes could be used in a criminal prosecution or could lead to other evidence that could be so used” Kastigar v. U.S., 406 U.S. 441, 445 (1972)

"The due process violation caused by coercive behavior of law enforcement officers in pursuit of a confession is complete with the coercive behavior itself…the actual use or attempted use of that coerced statement in a court of law is not necessary to complete the affront to the Constitution. Chavez v. Martinez 270 F.3d 852 (9th Cir. 2001) (emphasis the court’s) (quoting Cooper v. Dupnik 963 F.3d 1220, 1254-1255 (9th Cir. 1992), cert. denied 506 U.S. 593 (1992).

[minty_green]

You bastard! Them’s dishonest lawyer tricks! Plus, you’ve got the USCA at home, don’t you?

That Chavez opinion is the one now being reviewed by the Supreme Court. I suspect the rule is the same in other circuits, however, even if they don’t endorse the 9th Circuit’s remedy. I was planning on checking it out in the library tomorrow (it’s a slow, slow week).

Actually, I was just dropping by to link to Findlaw’s discussion of the Miranda rights, which echoes the language of Miranda in stating it as an affirmative requirement even apart from the remedy of exclusion from trial.

[Pencil_Pusher]

Hmm. I’m trying to figure out whether quoting the case which is up for appeal as controlling authority is more or less dishonest than reading a quote out of context.

I think it is more dishonest, especially when Cooper v. Dupnik states:

A closer inspection of the holdings of these cases as well as later Supreme Court and Ninth Circuit cases interpreting them reveals that a violation of Miranda rights is not itself a violation of the constitution. The actual holdings of the three cases cited by Cooper is simply that statements obtained in violation of the Miranda rule are inadmissible as part of the prosecutor’s case-in-chief in a criminal trial against that defendant. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Edwards, 451 U.S. at 480, 101 S.Ct. at 1882; Roberson, 486 U.S. at 680-81, 108 S.Ct. at 2097-98. 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. Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 831, 93 L.Ed.2d 920 (1987) (“prohibition on further questioning - like other aspects of Miranda - is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose . . .”); Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974); United States v. DeSantis, 870 F.2d 536 (9th Cir. 1989) (because Miranda is only a prophylactic rule, statements and evidence obtained from defendant by the police after he had requested counsel are admissible under the public safety exception to Miranda); Smith v. Endell, 860 F.2d 1528, 1532 (9th Cir. 1988) (“The conduct it [Edwards] prohibits is not wrongful in itself. The purpose of the rule is wholly prophylactic . . .”).