The Volokh Conspiracy
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Miranda Warnings . . . in 1748? A Fascinating Amicus Brief
A new filing in Vega v. Tekoh, on remedies for Miranda violations.
On April 20th, the Supreme Court will hear argument in an important case on Miranda rights, Vega v, Tekoh. The basic question in Tekoh is whether there can be a civil remedy for a Miranda violation. In Chavez v. Martinez, back in 2003, a badly-splintered Court held that the law is not violated if a police officer obtains a confession in violation of Miranda that is never actually admitted in Court. It's the admission in court of the unwarned statement that is the problem, the various opinions concluded, not the obtaining of the statement alone. In the words of Justice Kennedy's partial concurrence, without the admission of the statement there is no "completed constitutional violation actionable under 42 U. S. C. § 1983."
Tekoh raises a follow-up question: If an unwarned statement is wrongfully admitted, is that a completed violation actionable under 42 U. S. C. § 1983? And if it's actionable, who is responsible for it?
I would have thought that the first question was definitively resolved by Dickerson v. United States, which concluded that Miranda is "a constitutional decision of this Court [that] may not be in effect overruled by an Act of Congress." If Miranda is a constitutional decision, and the constitutional wrong is the admission of the unwarned statement, then logically doesn't the admission of the unwarned statement have to be a constitutional violation? Violating a constitutional rule is a constitutional violation, after all.
Not so, says Vega, the officer who obtained the statement. Vega says that Dickerson never explicitly stated that Miranda violations are actually constitutional violations. In Vega's view, this means that Miranda is just a constitutionally-inspired prophylactic rule of evidence, not an actual constitutional rule. As a result, he argues, admission of an unwarned statement can be a subject of a motion to suppress, but it cannot lead to liability under § 1983. Echoing the dissenters in Dickerson, Vega presents Miranda as just a made-up rule that is not part of the real Constitution—and certainly not part of the Constitution as originally understood.
This brings me to a really fascinating amicus brief that was filed earlier today: BRIEF OF AMICI CURIAE HISTORIANS OF CRIMINAL PROCEDURE, led by Counsel of Record Professor Wesley Oliver. I have mentioned my admiration for Professor Oliver's historical scholarship before, and his brief is a remarkable read. It should redefine the debate over the history of Miranda rights.
Professor Oliver and his co-authors argue that Miranda v. Arizona was more a return to Framing-era interrogation practices than something entirely novel. Around the time of the Framing, he claims, the common law voluntariness test for the admission of confessions was much more restrictive than it became in the 20th century. In the Framing era, magistrates routinely gave legal warnings to a person about to be interrogated that he had a right to remain silent and that their evidence would be used against them. The warnings were thought necessary, Oliver argues, as a way to meet the very strict voluntariness rule then in place. Only when a person was told of his rights, the thinking went, could a subsequent statement be deemed truly voluntary.
This thinking will ring a bell to modern criminal procedure ears: It's the basic theory of Miranda. What happened, Oliver argues, is that courts loosened the voluntariness test in the late 19th and early 20th centuries. Warnings were then dropped, as they were no longer needed to make sure statements were voluntary. (Almost everything was voluntary under the new voluntariness test; who needs warnings?) But the new looser voluntariness test then led to brutal interrogation practices in the 20th century. And then the Warren Court, entirely unaware of this history, responded to those brutal interrogation practices by devising what it thought was a new idea for how to ensure the voluntariness of confessions: Introduce the requirements of legal warnings.
As Oliver tells it, Miranda inadvertently returned the law to something akin to what it was in the Framing era without actually realizing it:
Miranda-like warnings were part of the historical practice of interrogations. Under the Framing Era voluntariness test, as a practical matter, warnings were often essential to admit a suspect's confession. As the Court often looks to Framing Era practices to understand the original public meaning of the Constitution, this often-overlooked set of practices provides considerable historical support for Miranda warnings as a constitutional protection.
Although the brief doesn't put it this way, the picture drawn hints at a rich irony. The living constitutionalists behind Miranda stumbled upon a rule similar to what was employed in the Framing era, while the originalists who excoriate Miranda are unknowingly advocating a modern judge-made rule very different from that used when the Bill of Rights was ratified.
Full disclosure: I have spoken with Professor Oliver about the case and reviewed a draft of the brief. Also, I have slightly edited this post shortly after publishing it.
