Constitutional Law,
Criminal
Jan. 10, 2000
Gavel Struggle
Overruling Miranda would mean an unpredictable inquiry in each case as to whether a confession was voluntary under the totality of the circumstances.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
The Supreme Court will probably conclude that the constitutionality of Section 3501 is not properly before it because the U.S. government did not invoke the statute. In Dickerson, the United States did not seek to have the defendant's incriminating statements introduced under Section 3051. Rather, it was an amicus brief filed by the conservative Washington Legal Foundation that argued that the confession should be admitted under Section 3501, even if Miranda warnings were improperly applied.
The executive branch, through the Justice Department, has the constitutional power to decide how to conduct their cases. Courts violate separation of powers when they usurp this function and decide issues not put before them by the parties.
Although the Supreme Court should reverse the 4th Circuit on this basis alone, if the Court reaches the issue of constitutionality, it should conclude that Section 3501 is unconstitutional. In Miranda, the Supreme Court held that warnings are necessary to prevent coercive pressures inherent to custodial interrogations. Chief Justice Earl Warren's opinion was clear that the warning requirements are based on the Fifth Amendment. Chief Justice Warren said that Congress and the states could "develop their own safeguards for the privilege, so long as they are fully as effective as [the warnings] in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it."
Section 3501 does not do this, but instead simply seeks to return the law to what it was before Miranda, in which confessions were admissible so long as they were voluntary. Section 3501 provides no safeguards, as Miranda requires, to ensure that suspects are informed of their rights. The statute's goal and effect is to overturn a Supreme Court decision interpreting the Constitution. This, of course, is beyond Congress' power for as the Supreme Court declared, long ago, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), "[i]t is emphatically the province and duty of the judicial department to say what the law is."
The 4th Circuit held Section 3501 is constitutional because Miranda warnings are not constitutionally required. But this ignores Chief Justice Warren's unequivocal statement for the court in Miranda that informing defendants of their constitutional rights at the outset of custodial interrogation is a constitutional requirement. In Withrow v. Williams, 507 U.S. 680 (1993), the Supreme Court held that claims of Miranda violations can be raised on habeas corpus precisely because they are allegations of constitutional violations.
Thus, the Supreme Court can and should decide Dickerson without reconsidering the desirability of Miranda warnings. Professor Paul Cassell, who wrote the amicus brief submitted to the 4th Circuit and has been appointed by the Supreme Court to argue this position before it, purports that Miranda has caused many criminals to go free. But scholars have repudiated Professor Cassell's methodology and numbers.
Today, police and law enforcement agencies favor Miranda warning requirements as providing police a clear and simple set of requirements of what must be done to obtain a confession that is presumed to be voluntary. Overruling Miranda would mean instead an unpredictable inquiry in each case as to whether a confession was voluntary under the totality of the circumstances.
The 4th Circuit's decision in Dickerson is the height of conservative judicial activism. The court decided an issue raised by none of the parties, effectively overruled a three-decade-old precedent and did so by finding that Congress can overturn a Supreme Court decision. The Supreme Court surely must and will overrule Dickerson.
Erwin Chemerinsky is the Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
#338692
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com