Silent Right

Anyone who has watched a cop drama during the past few decades is familiar with the so-called Miranda warning: "You have the right to remain silent; anything you say can and will be used against you in a court of law. You have the right to an attorney…" The warning, which grew out of a 1966 Supreme Court case, is designed to advise individuals placed under arrest of their legal rights; since its inception, it has effectively barred prosecutors from using confessions given before a suspect has been explicitly made aware of his rights. But if a recent court decision holds up, television may be the only place you'll ever hear the Miranda warning again.

In February, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled in United States v. Dickerson that the Miranda warning no longer governs the admissibility of confessions in federal court. Dickerson involves a bank robber from Maryland who confessed to his part in several heists. A lower court suppressed the confession on the grounds that it had been given before he was read his Miranda rights. The appeals court reversed the decision and ruled that a statute passed two years after Miranda is the governing authority.

That statute, USCA 3501, was passed as part of the Omnibus Crime Control Act of 1968 and requires only that a confession be offered voluntarily in order to be used in court, thereby bypassing Miranda-related legal and evidentiary requirements. But the Department of Justice has never seen fit to rely on the law, which is widely viewed as an attempt to get around Miranda. In fact, USCA 3501 came into play in Dickerson only because two right-leaning legal groups–the Washington Legal Foundation and the Safe Streets Coalition–submitted a brief in support of the statute.

The appeals court excoriated the Justice Department for failing to invoke the statute, saying the government "has caused the federal judiciary to confront a host of `Miranda' issues that might be entirely irrelevant under federal law….It may have produced–during an era of intense national concern about the problem of run-away crime–the acquittal and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens. There is no excuse for this."

Some legal observers fear that undermining Miranda will give law enforcement a freer hand in coercing suspects into making false confessions. Robert Pambianco, chief policy counsel for the Washington Legal Foundation, counters that the decision merely allows the introduction of voluntary confessions before Miranda's "magic words" are spoken and should not usher in a climate where abuse of suspects would be legally tolerated or sanctioned.

While the decision is currently limited to federal courts in the states comprising the 4th Circuit–Maryland, North Carolina, South Carolina, Virginia, and West Virginia–most legal analysts expect a full review by all 13 members of the circuit and an eventual trip to the Supreme Court. At least two Supreme Court justices–Antonin Scalia and Clarence Thomas–are believed to favor doing away with Miranda's limits on police interrogations.