Reconsidering Miranda and the Fifth Amendment

Reconsidering Miranda and the Fifth Amendment

Description

Few decisions of the Warren Court have attracted as much attention and as much controversy as its 1966 ruling in Miranda v. Arizona. Miranda relied upon the Fifth Amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. The Court was vilified for “handcuffing the police” and for “favoring the criminal forces over the peace forces" in this country. Recently the Miranda decision has become the focus of renewed debate. Critics argue not only that the Miranda decision was legally incorrect and socially unwise but also that the Court stepped far outside its proper adjudicatory function and engaged in an illegitimate act of legislation. These claims of illegitimacy are fueled by the elaborate, rulelike character of Miranda requirements. Attorney General Edwin Meese, for example, attacked Miranda for “its prescription of a detailed, code-like set of rules for police conduct—the sort of rules more properly devised by the legislative or executive branches of government.” Because the Court stepped beyond the appropriate limits of the judicial function, these critics assert, Miranda should be overruled. Talk about overruling Miranda ignores the fact that Miranda contains not just one holding but a series of complex and important interpretations of the Fifth Amendment. One could subdivide them in various ways, but three important and conceptually distinct steps were involved in the Court's decision. First, the Court held that informal pressure to speak—that is, pressure not backed by legal process or any formal sanction—can constitute compulsion within the meaning of the Fifth Amendment. Second, Miranda held that this element of informal compulsion can be satisfied by any questioning of a suspect in custody, no matter how short the period of questioning may be. Third, Miranda held that a series of precisely specified warnings is required to dispel the compelling pressure of custodial police interrogation. The third step, the series of particularized warnings, poses some obvious problems of legitimacy. But the core of Miranda is located in the first two steps. I want to begin by considering these first two holdings in depth. The Court's first holding was that compulsion, within the meaning of the Fifth Amendment, can include informal pressure to speak. Note first that there is not the slightest doubt about the legitimacy of the Court's settling this question by adjudication. The Fifth Amendment says that no person shall be “compelled” to be a witness against himself. According to one school of thought, this word referred only to formal legal compulsion. It is a normal act of judicial interpretation for a court to consider the meaning of the word “compelled” and to decide whether it extends to informal pressures. A much more important problem is to determine whether the Court's decision on this point was correct on the merits. In Bram v. United States, decided in 1897, the Court had relied on the Fifth Amendment to suppress a statement made in the course of a brief custodial interrogation, but Bram was repudiated shortly afterwards, and for the next sixty years the Court frequently and consistently held that the Fifth Amendment privilege was inapplicable to police interrogation. Because the suspect was under no legal obligation to speak, the argument ran, there was no compulsion in the relevant Fifth Amendment sense of the term. Confessions obtained by “breaking the suspect's will” were called involuntary and held inadmissible under the due process clause, which was conceived as a distinct and more flexible constitutional restraint. In rejecting this view and holding the Fifth Amendment applicable to informal compulsion, Miranda undoubtedly departed from a long line of precedent. Nonetheless, this first step in the Miranda analysis was the appropriate interpretation of the constitutional command. Although the early history of the privilege is clouded and ambiguous, it seems clear that the privilege was intended primarily to bar pretrial examination by magistrates, the only form of pretrial interrogation known at the time. The reasons for concern about that form of interrogation under formal process apply with even greater force to questioning under compelling informal pressures. As Professor Edmund Morgan showed almost forty years ago, “The function which the police have assumed in interrogating the accused is exactly that of the early committing magistrates, and the opportunities for imposition and abuse are fraught with much greater danger. . . . Investigation by the police is not judicial, but when it consists of an examination of the accused, it is quite as much an official proceeding as the early English preliminary examination before a magistrate, and it has none of the safeguards of a judicial proceeding.” Other leading experts on the law of evidence concur in Morgan's assessment. Thus, Professor John McNaughton, writing almost thirty years ago, noted that virtually all the policies underlying the Fifth Amendment privilege “apply with full force to insure that police in informal interrogations not have the right to compel self-incriminatory answers. . . . Answers should not be compelled by police.”

Source Publication

The Bill of Rights: Original Meaning and Current Understanding

Source Editors/Authors

Eugene W. Hickok, Jr.

Publication Date

1991

Reconsidering Miranda and the Fifth Amendment

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