Turning Miranda Right Side-Up

Turning Miranda Right Side Up*

Theodore O. Te** 

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Miranda warnings have little or no effect on a suspect’s propensity to talk . . . Next to the warning label on cigarette packs, Miranda is the most widely ignored piece of official advise in our society.[1]


Introduction: A “Love-Hate” Relationship

Very few decisions of the United States Supreme Court[2] have stirred as much controversy, confusion, debate, discussion, vitriol, and even vilification as Miranda v. Arizona.[3] Similarly, very few decisions have seen the Court so engaged in a “love-hate” relationship with its own creation—with the Court trying, in the years since Miranda’s promulgation, to narrow down its scope while, at the same time, striking down efforts to circumvent it.[4] Like Roe v. Wade,[5] it is also a decision that has consistently divided the Court with five-vote majorities and even slimmer pluralities, marked by sharp, caustic and, on occasion, pointed language by the Justices in main, concurring or dissenting opinions. Perhaps more than any decision other than Roe, Miranda decisions also clearly show the delineation in the Court between those who favor it almost unqualifiedly, those who favor it consistently on principle, those who oppose it, and those in the middle.

Through the years, the Court itself has chipped away at Miranda by creating exceptions and nuanced readings that have resulted in the narrowing of Miranda’s reach[6] as far as its applicability to custodial investigations while, at the same time, expanding the parameters of permissible waivers of the rights secured by Miranda.  When faced with a Miranda situation, the Court confronts its instinct to re-create its own creation[7] while, at the same time, defend it from encroachment from others.[8]  It is this process of re-visioning and reinventing Miranda, without expressly abandoning it, which has led to a great deal of confusion as to what Miranda actually means at present.

This essay looks at the core holding in Miranda 46 years after it was decided.  It explores the effects of various rulings by the Court that clarify the core holding that statements obtained without the Miranda warnings are presumptively coerced and are inadmissible in evidence and looks at what Miranda stands for now.  The analysis focuses on cases that have a nuanced reading of or carved out exceptions to Miranda’s essential features, such as:  (a) the right to be warned, (b) the language of the warnings, (c) the meanings of “custodial interrogation,” (d) the invocation of the rights to silence and counsel, (e) the knowing and intelligent waiver of the rights covered by Miranda, and (f) the exclusion of unwarned statements and other evidence arising from those statements.

Part of the analysis is to inquire into ways to make the Miranda rule a bright line rule again; toward this end, a comparative analysis of the Philippine experience with the Miranda “warning and waiver” requirement is made. Whereas the United States treats Miranda simply as a means of securing a constitutionally guaranteed right, the Philippines recognizes the Miranda warnings as a constitutional right.[9]

Part One discusses Miranda’s core holding and its bright line rule.[10]  It looks at Miranda’s history to understand how it was arrived at and what the current state of the law is at present.  Part Two examines the effects of these cases on Miranda’s core holding and its bright line rule, looking at how these cases have created an impact on its essential elements.[11] Part Three concludes the essay by deconstructing the bright line rule and confronting the question of Miranda’s effectiveness; examines the Philippine experience with the Miranda warnings; and looks at how the procedural and substantive law on confessions has not only adopted the protections provided under the warning system put in place by Miranda but has also strengthened and amplified the protections provided. In the face of empirical evidence, all the changes done by the Court and law enforcement agencies, the essay concludes that the protective warnings, as originally formulated, are no longer as effective and that it is time to formulate a new bright line rule consistent with Miranda’s original core holding.  This essay also suggests specific measures to make Miranda relevant again, chief of which would be a change in the language and sequence of the warnings and the adoption of measures to create an objective record of any interrogations. (Read the full article in the PDF version)

* Cite as Theodore Te, Turning Miranda Right Side Up, 87 Phil. L.J. 51, (page cited) (2012).

** Assistant Court Administrator and Chief, Supreme Court Public Information Office. Former Assistant Professor, University of the Philippines College of Law. LL.M., Columbia Law School (2012). LL.B., University of the Philippines (1990). A slightly different version of this essay was submitted by the author as his LL.M. paper to Professor Jack Greenberg of Columbia Law School in compliance with the requirements of the degree of Master of Laws; the paper, as originally written, was titled differently and focused only on American law. This paper was revised to include a reference to the Philippine experience with Miranda-type warnings. The author is grateful to Professor Jack Greenberg for his invaluable comments and insights to the original draft of this paper.

[1] Patrick Malone, You Have The Right To Remain Silent: Miranda After Twenty Years, 55 Am. Scholar 368 (1986).

[2] Unless specified, reference to “Supreme Court” or “Court” is to the United States Supreme Court; references to District Courts will expressly characterize the court involved as a district court or use the lower cased “court” instead of the initially-capitalized “Court.” The comparative reference to the Supreme Court of the Philippines will be to the “Philippine Supreme Court” or “Philippine Court.”

[3] 384 U.S. 436 (1966); with the possible exception of Roe v. Wade, 410 U.S. 113 (1973), very few decisions can claim to provoke as much controversy, passion and even vitriol from lawyers and even judges as Miranda does.

Yale Kamisar, who is one of the very few who can claim to have directly influenced the way Miranda was originally written and can claim parentage of it, describes Miranda v. Arizona as “one of the most praised, most maligned—and probably one of the most misunderstood” cases in American history. See Yale Kamisar, On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It—and What Happened to It, 5 Ohio St. J. Crim. L. 163 (2007).

See also Patrick Malone, “You have the Right to Remain Silent”: Miranda after Twenty Years in George C. Thomas III, Miranda: The Crime, the Man and the Law of Confessions, in The Miranda Debate: Law, Justice and Policing 7 (Northeastern University Press, Boston, Richard A. Leo & George C. Thomas, eds., 1998); see, generally Yale Kamisar, Can (Did) Congress “Overrule” Miranda?, 85 Cornell L. Rev. 883 (2000).

[4] Kit Kinsports, The Supreme Court’s Love-Hate Relationship with Miranda, 101 J. Crim. L.& Criminology 375 (No. 2; 2011); Part II of this essay will discuss the occasions during which the Court has carved out exceptions that chip away at the protections intended by Miranda’s core ruling while, at the same time, deliberately not abandoning the doctrine.

[5] 410 U.S. 113 (1973)

[6] See, e.g., Harris v. New York, 401 U.S. 222 (1971) (where the Court refused to completely exclude a statement given by a defendant despite the absence of Miranda warnings, ruling that it could be used by the prosecution to impeach the defendant’s testimony but not to prove the prosecution’s case in chief); Michigan v. Tucker, 417 U.S. 433 (1974) (where the testimony of a witness identified by a statement taken in violation of Miranda was admitted because even if the police disregarded Miranda, they did not violate the defendant’s Fifth Amendment rights which formed the core of the Miranda ruling); New York v. Quarles, 467 U.S. 649 (1984) (where the Court created a “public safety exception” to Miranda, holding that the police were not required to provide the warnings to a suspect if they had a reasonable concern for the public’s safety); Oregon v. Elstad, 470 U.S. 298 (1985) (where the Court held that a “two-step” interrogation technique, which involved withholding Miranda warnings until the suspect has already given a statement and then prompting the suspect to repeat the unwarned statement, did not result in inadmissibility of the statement; contra, see Missouri v. Siebert, 542 U.S. 600 (2004) overruling Elstad); Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (where the Court ruled that the suspect’s invocation of the right to remain silent under Miranda cannot be presumed by his silence and that his short responses to specific questions indicated a waiver of the right to remain silent); and Howes v. Fields, No. 10-680, 2012 WL538280 (Feb. 12, 2012), holding that a prisoner who is interrogated, while in prison, on a matter unrelated to the subject of his confinement need not be mirandized.

[7] One of the main arguments, of course, against Miranda is that it was an exercise in judicial legislation and that the ruling is overbroad.  This would be resolved much later in Dickerson, infra.

[8] Dickerson v. United States, 530 U.S. 428, 432 (2000), where the Court, through Chief Justice Rehnquist, declared Miranda to be a constitutional principle and, on that basis, rejected a legislative effort to render Miranda inoperative declaring that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress and we decline to overrule Miranda ourselves . . . Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts

[9] Const. art. III, §12 to wit:

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

. . . .

(3) Any confession or admission obtained in violation of this . . . [s]ection . . . shall be inadmissible in evidence against him.

[10] Understood as a rule that is composed of objective factors or components that leave little or no room for varying interpretation. Justice O’Connor used the term “bright line” to describe Miranda in Oregon v. Elstad, 470 U.S. 298, 317 (1985). See discussion infra.

[11] As stated supra, these elements are: (a) the right to be warned, (b) the language of the warnings, (c) what it means to be in custody, (d) what interrogation means, (e) the invocation of the rights to silence and counsel, (f) the knowing and intelligent waiver of the rights covered by Miranda, and (g) the exclusion of unwarned statements and other evidence arising from those statements.