November 1, 2004

Professor ponders fate of Miranda warning

The words are familiar to anyone who’s watched a cop show: “You have the right to remain silent . . .” But while the Miranda warning was created to safeguard citizens from self-incrimination, there are signs police have been intentionally disregarding it as part of a standard investigative technique, says Alice Choi.

The criminal justice professor says this could become a common practice. Based on Supreme Court decisions handed down over the summer, officers may be tempted to tweak, or willfully violate, Miranda as a means for gathering evidence, Choi says.

In one case, Missouri v. Seibert, the officer had intentionally withheld the Miranda warning to help get a confession. “His technique was to get a confession, then Mirandize the suspect and have the suspect repeat the confession. The post-Miranda confession was then used against the suspect at trial,” Choi says. Here, the court held the post-Miranda confession was obtained in violation of Miranda and was inadmissible.

But if an inadmissible confession leads to other evidence, that evidence can be used against the suspect at trial, the court determined. Choi notes that in U.S. v. Patane, an ex-felon interrupted an ATF officer while he was attempting to administer Miranda. The suspect then admitted he owned a firearm and revealed where he kept it. The court found the firearm was admissible, she says.

“It’s a battle of individual constitutional rights versus effective criminal investigations,” she says. “We have a system where we rely on officers to do independent investigations to prove guilt. The next big question is if they’re allowed to find evidence through ill-gotten confessions, to what extent does that erode the Fifth Amendment?”

While some may say this is just good policing, Choi says, it verges on violating what Chief Justice Warren saw as Miranda’s important role in protecting citizens’ rights.

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