[MUSIC] You have the right to remain silent. You have the right to have an attorney present during questioning. Ernesto Miranda didn't know that. Unlike Dolly Mapp, he didn't know his rights. Miranda was arrested based on circumstantial evidence linking him to a rape. The police interrogated him for two hours without telling him he didn't have to answer their questions and could ask to see a lawyer. In the end, he confessed. This confession was used as evidence against him and he was convicted. Were his rights violated? The Fifth Amendment says that no person can be compelled to be a witness against himself. That clearly means that police can't force a confession out of you and then use it at your trial. But what happened with Miranda? Well, if these are all the facts you know, it's hard to say, especially in the 1960s before police routinely videotaped interrogations. A judge would know how long a defendant was interrogated, maybe, and some of what was said, maybe. But it would be pretty hard to figure out what the defendant's state of mind was. That's one thing the Supreme Court was worried about. Maybe we can't tell if a confession has been coerced. The other thing they were worried about was the psychological pressure on a subject during interrogation. Someone who's in custody, who can't leave the interrogation room, and who has the police telling him that they know he did it and now is his one chance to tell his side of the story, is subject to at least some degree of psychological pressure. Maybe for some people that overpowers their will if the police do it long enough. In one of the cases decided along with Miranda, the interrogation lasted five days. And maybe for others, it doesn't. Requiring the Miranda warnings solves both these problems. If you tell someone he has the right to remain silent, the right to see a lawyer, then you can be pretty sure that if he talks afterwards, he's doing so voluntarily. So that's what Miranda does. It makes sure that confessions aren't coerced and also that judges can tell they aren't coerced. It's just as important to understand what Miranda doesn't do. It doesn't create the right to remain silent. That's in the Fifth Amendment, as I said. It doesn't create the right to a lawyer either. That's in the Sixth Amendment. What Miranda does is require police to tell you about these rights. If they don't, then they can't later use anything you say against you in, as the warning puts it, a court of law. Ernesto Miranda's confession was excluded then, but he was actually convicted anyway without that evidence. Now let's try to think a bit about whether Miranda is a good decision. My aim here, as it was with the exclusionary rule, is not to convince you of a particular position, but rather to show you the arguments on each side. One thing to say in Miranda's favor is that it probably is good for people to know their rights. You certainly could argue that we shouldn't have certain rights, that they're a bad idea. Maybe people should have to answer police questions. Maybe they shouldn't be allowed to see lawyers. But those rights are clearly in the Constitution. If we think they're a bad idea, we need to amend the Constitution to get rid of them. It's harder, I think, to argue that we should try to get rid of these rights without amending the Constitution just by hoping that people don't know enough to invoke them. But does Miranda maybe have some of the same strange features as the exclusionary rule? The exclusionary rule is a little odd, remember, because it really works mainly to protect the guilty. It benefits the innocent only indirectly. Is Miranda like that? Who does it protect? One answer is it protects the guilty. The innocent, after all, have nothing to hide. They don't lose anything by talking to police. But that's not necessarily true. People do make false confessions and this is something that doesn't happen with the Fourth Amendment. People don't manufacture false evidence and put it in their houses. So, Miranda benefits people who might otherwise get pushed into a false confession and those people are innocent. In terms of who it benefits, Miranda is slightly less problematic than the exclusionary rule. But saying that something is sensible or that it's good policy isn't the same thing as saying it's part of the Constitution. And certainly, the Miranda warnings themselves aren't in the Constitution. So you might wonder where judges get the power to require them. Miranda is an example of the Supreme Court being pretty aggressive in terms of managing the conduct of law enforcement and it was unpopular with many people when it was decided. There were billboards around the country calling for the impeachment of Chief Justice Earl Warran. In part, those were a reaction to the Warren Court's decisions about racial equality, like Brown v. Board of Education, which stopped the segregation of public schools. But Miranda had something to do with it too. Richard Nixon campaigned against Miranda and when he was elected president, he appointed justices he thought were likely to overrule it. Over the years, Miranda was narrowed down, just like the exclusionary rule, and exceptions were created. But the decision itself was never overturned. Interestingly though, the threat to Miranda didn't come just from judicial appointments. Congress passed a law purporting to overrule Miranda, just like they later did with the Religious Freedom Restoration Act. They tried to tell the court that it had made a mistake, that it should go back to what it was doing before. Forget the Miranda warning. Just decide whether the confession was voluntary. The United States Department of Justice, which makes legal arguments for the United States, thought that this law was unconstitutional, so they didn't ever try to use it in court. But in 1999, the Court of Appeals for the Fourth Circuit ordered them to and then went on to decide that the law was valid. Congress could overrule Miranda, they said, because Miranda wasn't based on the Constitution. The Supreme Court agreed to review that decision in a case called Dickerson. It was a very interesting case. It was decided the year I clerked. And there was a fair amount of suspense. There weren't five justices who would be willing to overrule Miranda. That was pretty clear. But would there be five justices who were willing to go along with Congress when it tried to change the rule? As it turned out, the answer was a resounding no. The vote against the government, against Congress, was seven to two, not even close. But when you think about this, it shouldn't be that surprising. Chief Justice Rehnquist, who wrote the majority opinion in Dickerson, didn't much like Miranda. He was one of Nixon's appointees. But he did like the Supreme Court and he believed very strongly that if Miranda was to be overruled, only the Supreme Court could do it. >> Congress has authority to supersede nonconstitutional judicially created rules of evidence and procedure, but Congress may not legislatively overrule our decisions interpreting and applying the Constitution. The dispositive question therefore is whether the Miranda court announced a constitutional rule or merely exercised its supervisory au, supervisory authority to regulate evidence in the absence of congressional direction. For a number of reasons, we think it clear that Miranda's rule is constitutionally based. >> So it seems as though Miranda is here to stay, which some people still don't like. But let me suggest a way of looking at Miranda that might make it easier for opponents to accept. Miranda, remember, doesn't really create new rights. It just makes sure that people know about rights they already have. It makes sure that those rights are available to everyone. And from this perspective, Miranda is really a decision that's based on equality, which is one of the themes that the Supreme Court pursued under the leadership of Earl Warren. Constitutional rights aren't just for white people, the Warren Court said. They aren't just for men. They aren't just for the rich. And Miranda is another step in that same direction. Miranda says that rights aren't just for people who know about them already. [MUSIC]
