Miranda Is Further Eroded: Good News for Law Enforcement, Bad News for Criminals

The Supreme Court in Berghius v. Thompkins recently held that Miranda v. Arizona’s famous “exclusionary rule” would not apply where: (a) a criminal defendant was provided a form that exhaustively spelled out his Miranda rights, (b) the defendant read out loud the part of the form indicating that he had a right to remain silent, (c) was interrogated for three hours, (d) remained silent throughout, and then (d) when the subject of God was raised, admitted that he had prayed to God to forgive him for shooting a young boy.  The decision was 5-4 with the usual breakdown.  New Justice Sotamayor wrote for the dissent.

The central feature of the Court’s holding was essentially that when the facts are ambiguous regarding a defendant’s exercise of his or her Miranda rights, the tie should go to allowing the evidence to be used in court.  In other words, silence could not be equated with an exercise of the right to remain silent.  The dissent equated the defendant’s silence with the very exercise of the right to remain silent that Miranda was designed to protect.

The decision attracted a lot of criticism, and the 5-4 split, I’m sure, added to buzz.  However, I read this decision as representing a situation where a decision upholding exclusion of the evidence would have had a more significant impact on the law than the one handed down by the Court allowing the use of what was in effect a confession.  The police already follow a number of procedures to comply with Miranda and other Supreme Court dictates.  Here, the defendant was presented with a form that not only informed the defendant that he had a right to remain silent, but that he had a right to counsel, the right to have a lawyer appointed for him if he could not afford one, and the right that no further questions would be asked of him if he invoked his right to remain silent and/or right to counsel.  If the Court would have upheld suppression here, the justice system would have been filled with new claims for suppression based upon alleged ambiguity in the manner in which these rights were or were not invoked for many years to come.

Justice White, in his dissent in Miranda, made a poignant critique of the exclusionary rule as it was then adopted by the Court and the damaging impact it had, in his view, on the criminal justice system:

In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.

I believe he would agree with the Court’s decision in Berghius.