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In an appearance on ABC’s This Week, Attorney General Eric Holder proposed that Congress legislatively authorize an exception to the Miranda rule:
“The [Miranda] system we have in place has proven to be effective,” Holder told host Jake Tapper. “I think we also want to look and determine whether we have the necessary flexibility — whether we have a system that deals with situations that agents now confront. … We’re now dealing with international terrorism. … I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that’s one of the things that I think we’re going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face.”
In so doing, Holder is picking up on a suggestion that my Balkinization blogging colleague Rick Pildes advanced last week. They’re both correct, and Congress should follow up on the proposal. Moreover, it would be foolish to regard this as just another retrenchment of civil liberties.
The 5-4 ruling in Miranda v. Arizona in 1966 may well be the high-water mark of the Warren Court’s promotion of civil rights. It clearly was inspired by concern about coerced confessions in police stations and jails across the country. Abuse was indeed rampant at the time. The Court’s ruling was that
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in the court of law; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
Since the New York v. Quarles decision in 1984, Miranda has been subject to an exception that authorizes questions “reasonably prompted by a concern for the public safety.” A person apprehended at the site of a violent crime, for instance, can be asked questions designed to ensure that the violence has been brought to an end. Was he acting alone or in concert with others? Does he have weapons, and if so, where are they? This exception is mandated by the obvious concern that preventing further crime or violent acts should take precedence over the possible prosecution of the person who is taken into custody. Moreover, notwithstanding the use of the word “must” in the key passage of Miranda, it is not really correct to view the reading of the formal warning as obligatory in all circumstances. More strictly, the requirement of the Miranda warning applies with respect to any statements taken from a person in custody that the government wants to use in connection with a prosecution. That means, among other things, it would not necessarily apply to a person seized outside of the United States or taken on a battlefield, unless perhaps the purpose of the detention was to bring the person back to face criminal charges. Miranda simply says that statements taken before the warnings are given can’t be used to prosecute someone in the American criminal justice system; it does not rule out their use for other purposes. A review of federal jurisprudence about Miranda shows that its scope has almost steadily shrunk since it was first announced, largely in response to conservative criticism.
On September 29, 2008, Attorney General Mukasey issued Guidelines for Domestic FBI Operations that implement the public-safety requirement. So when Republicans complain about the reading of Miranda rights after public-safety questioning to figures like the panty bomber and the Times Square bomber, they are complaining about procedures proposed and applied during the Bush Administration. As usual, what the Bush Administration actually did as a matter of policy is far more sober and measured than implied by their own rhetoric at the time or the demagogic rants of the Republicans now out of office.
It seems sensible that the parameters of the public-safety exception be set by Congress. At the same time, it would be appropriate for Congress to address the Miranda concerns in some other areas. Clearly the majority on the Warren Court felt that Miranda was a civil-rights bulwark, “one of the most important opinions of our time,” as Justice Brennan called it in internal court papers. The protections against coerced testimony are essential to the integrity of the criminal justice system. But Miranda is hardly the only way to approach the problem, and indeed it may not be the most efficient approach. Moreover, civil libertarians in the United States have made too much of the Miranda warning itself. The essence of the protection is against coerced statements, and this rule serves the public, not just the defendants, because coerced statements are not reliable and should not be the basis of evidence in a criminal prosecution.
Other ways of approaching the same issues are suggested by the British model. Following years of police station abuse during the “troubles” in Northern Ireland–abuse that led to coerced confessions in dozens of cases, many of which were later overturned following embarrassing disclosures–Britain’s Conservative government under Margaret Thatcher introduced a series of changes in the Police and Criminal Evidence Act of 1984, which govern stopping, searching, and questioning suspects. These included the key requirement that an audio recording be made of all interrogation sessions. With the proliferation of high-quality recording technology, this capability is now nearly ubiquitous, and it would go a great length towards establishing a definitive record of interrogation sessions that would eliminate most questions about what was said and whether a witness was improperly coerced. The Bush-era Justice Department loudly opposed initiatives by many of its best prosecutors to introduce a recording process, for no articulated good reason. Congress should consider introducing such a requirement and it should carefully examine the other Thatcher-era changes in Britain, which collectively constitute a sensible, responsible, and conservative approach to the same issues identified and addressed by Miranda.
My only reservation is about Congress itself. In the last several years it has been generally incapable of looking into public safety matters without engaging in counterproductive histrionics. Attempts to codify the public-safety exception will be a test of Congress’s seriousness and of its ability to legislate rather than engage in emotive political grandstanding. Will it be up to the test?
More from Scott Horton:
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”