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Obama's Justice Department Sticks a Fork in Miranda - Why?

Some people think that Miranda already fails to afford meaningful protection to many suspects. If the Court sides with the Justice Department in the current case, that conclusion would be inescapable.
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Miranda v. Arizona -- one of the Supreme Court's most-heralded decisions -- is under attack. Miranda seeks to protect suspects' choices to remain silent or talk with police, to go solo or have the help of a lawyer. But in a case now before the Supreme Court, Michigan is asking the Justices to overturn some of Miranda's basic protections. President Obama's Department of Justice has joined in the assault on this landmark ruling.

Miranda's theory is simple. Officers use sophisticated tactics during stationhouse interrogations to pressure suspects to confess. To counteract these pressures, police must advise people of their rights to remain silent and talk to an attorney. Suspects must have the chance to decide, before being interrogated, whether to waive their Fifth Amendment privilege against self-incrimination. To ensure a real choice, the Court put the burden on law enforcement to show that suspects have knowingly and voluntarily given up their rights. No waiver, no questioning.

In the Michigan case, Berghuis v. Thompkins, officers gave Van Chester Thompkins the Miranda warnings. But instead of asking if he would give up his rights and speak, police just began interrogating. Thompkins kept largely silent for close to three hours while officers tried different tactics to get him to talk. He eventually succumbed and made a statement. A federal court threw out the statement, finding that Thompkins did not waive his rights. Michigan has appealed.

The case directly challenges Miranda. While the Supreme Court previously said that waivers might sometimes be implied when suspects respond immediately to questions, the Court has never suggested that suspects voluntarily waive their rights simply by caving in to lengthy questioning. A ruling for Michigan would rewrite a key component of Miranda: that people should be allowed to choose between speech and silence before stationhouse interrogations begin in earnest. If suspects are questioned for hours and finally talk, how can any "waiver" be anything but the result of those pressures?

The US Solicitor General is joining Michigan in aggressively attacking Miranda. In 1994, the Court held that if suspects initially waive their rights and agree to talk--but later change their mind and want to see a lawyer--they must say so clearly and affirmatively. The Solicitor General now wants to extend this ruling to the very start of interrogation. Under this approach, there would be no "time out" prior to interrogation for suspects to decide whether to speak. Instead of requiring police to obtain a waiver, suspects would have to stop an interrogation that has already begun. Ironically, people would have to speak in order to claim their right to remain silent.

This position appears more hostile to Miranda than any taken in the Supreme Court by previous Democratic Administrations. In the 1994 case, the Clinton Administration argued only that police should clarify a suspect's ambiguous request for a lawyer. In 2000, Clinton's Justice Department refused to defend a statute that directly challenged Miranda. To signal that the refusal was the carefully-considered position of the entire Justice Department, the Government's brief was signed by the Attorney General in addition to the Solicitor General, which is quite unusual.

In 2004, the Supreme Court decided a case from Missouri where officers deliberately withheld Miranda warnings and obtained a confession. Then police gave the warnings and had the suspect repeat what she said before. The Supreme Court condemned this practice as an end run around Miranda. While the Bush Justice Department backed Missouri, a group of former prosecutors and judges -- including current Attorney General Eric Holder, who was then in private practice, and former FBI Director William S. Sessions -- submitted a brief decrying this technique.

Some people (myself included) think that Miranda already fails to afford meaningful protection to many suspects. If the Court sides with the Justice Department in the current case, that conclusion would be inescapable.

But Berghuis v. Thompkins raises another troubling question. The Justice Department was not required to join in the case; it could have stayed on the sidelines. Why has the Obama Administration jumped in and stuck a fork in Miranda? Perhaps it is simply a misstep by a Solicitor General with no previous law enforcement experience. If, however, this really is the considered position of the Attorney General and the Justice Department, it tells us something more disturbing -- that the Obama Administration does not want to afford suspects a fair chance to remain silent in police custody.

Charles Weisselberg is a Professor of Law at the University of California, Berkeley, School of Law.

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