[Editor’s Note: It is my great privilege to welcome Charles D. Weisselberg, Professor of Law at Boalt Hall and Faculty Co-Chair, Berkeley Center for Criminal Justice (full bio here). Professor Weisselberg, as the post title suggests, will be teaching us a bit about the Miranda case. Thanks to him, for taking the time to do this.]

Forty-two years ago today, the United States Supreme Court issued its decision in Miranda v. Arizona, perhaps the Court’s most recognized criminal procedure ruling of all time. The 5-4 decision was authored by Chief Justice Earl Warren. The five justices in the majority hoped that the procedures set forth in the decision would enable suspects in the stationhouse to make a reasoned choice whether or not to speak with police. The dissenting justices feared it would effectively end the practice of police interrogation. How did Miranda come about, and what does it accomplish today?

In the several decades before the ruling, the justices faced difficult questions about the legality of confessions obtained by various means, including prolonged interrogation, deprivation of food or sleep, and even physical abuse. The Court applied a test that looked at the overall circumstances of a confession to decide if it was voluntary or not. It was thought that the test was hard to apply, and did not give clear guidance to lower courts, police, and lawyers. If a confession after 36 hours of questioning was inadmissible, did that mean that 20 hours would be ok? Something more, it was thought, was needed.

Two years before the Miranda decision, in a case called Escobedo v. Illinois, the Court flirted with the idea of assessing the constitutionality of a confession by expanding rules about the right to counsel. But that raised as many questions as it answered. Danny Escobedo had a lawyer who was trying to see him while an interrogation took place. Among other questions left open in Escobedo, what about people who couldn’t afford a lawyer? In the fall of 1965, the justices looked at the petitions filed by people seeking Supreme Court review. They identified over 100 “Escobedo” cases and eventually selected four for review. The lead case was brought by Ernesto Miranda, and the decision in those four cases are known by his name.

The opinion in Miranda actually contains several holdings. The majority found that suspects have a right to remain silent during police interrogation; the Fifth Amendment privilege against self-incrimination applies in the stationhouse, even before a suspect is charged with any crime. Next, the justices determined that the process of custodial interrogation contains “inherently compelling pressures” that undermine suspects’ ability to assert their right to remain silent. Finally, in the most controversial part of the decision, the Court decided that a system of warnings and waivers would be required to dispel those inherently compelling pressures. Unless a suspect was advised of his or her rights and voluntarily waived them, no statement taken during a custodial interrogation would be admissible in evidence. The warnings included the right to remain silent, the advice that anything said could be used against a suspect, that a suspect can consult with a lawyer before and during questioning, and that a suspect has the right to the appointment of counsel if the suspect cannot afford to hire an attorney. If a suspect does not waive his or her rights, there should be no questioning. If a suspect asserts his or her rights in the course of an interrogation, questioning should cease.

Miranda was both an experiment and a compromise. Some of the lawyers involved in the case argued that no interrogation should go forward if a lawyer was not present. Prosecutors argued that suspects did not need to be told of their rights. The compromise was to advise of rights but not require the actual presence of an attorney. As for the experiment, when the Court crafted these rules to protect the Fifth Amendment, the Court had no empirical basis to anticipate how the rules would in fact function. The Court launched the justice system, and us all, on a forty-year experiment in overseeing the police.

In the decades since it was decided, Miranda has been both reviled and revered. It was castigated by Richard Nixon, when he ran for President. Congress at one point sought to displace it with a weaker test for federal criminal cases. Critics argue that the Supreme Court issued a series of decisions that undermine key parts of the ruling, for example by allowing use of statements taken in violation of Miranda to impeach a defendant who testifies at trial. In 1984, the Court issued a ruling in a case called Davis v. United States, finding that a suspect who wants a lawyer must unequivocally ask for one during an interrogation or else officers have no duty to cease questioning. The justices also weakened Miranda by holding that officers do not have to expressly ask suspects if they want to waive their rights; a waiver can be express or implied. Still many, including Professor Yale Kamisar—perhaps Miranda’s most steadfast defender—argue compellingly (pdf) that we still need Miranda’s protections today; it is better, he and others contend, than the alternatives.

Miranda faced its most direct challenge in 2000. That year, the Supreme Court decided the constitutionality of the federal statute passed by Congress as a purported replacement for Miranda in federal cases. In Dickerson v. United States, the Supreme Court (by a vote of 7-2) held that the statute was not a constitutionally-adequate replacement for Miranda. To the surprise of many observers, the majority opinion in Dickerson—upholding Miranda—was authored by then-Chief Justice Rehnquist.

Why did Chief Justice Rehnquist come to the aid of Miranda in 2000? R. Ted Cruz, one of Rehnquist’s former clerks, has suggested (pdf) that the Chief Justice did not have the votes to overturn the decision and so voted with the majority so that he could write the opinion and uphold Miranda in its present (somewhat weakened) state. But it may also be that Rehnquist recognized that the version of Miranda that exists in the 21st Century is much less protective of suspects’ rights—and much less costly to police—than the rule that the majority sought to put in place 42 years ago. To the extent that Justice Rehnquist (and others) became accommodated to Miranda, it was to a much different decision than it appeared to be in 1966.

So what does Miranda do today? Today it essentially displaces the earlier voluntariness test. It provides a “safe harbor” for police. If officers give warnings and suspects appear to understand them, a statement is almost always admissible in evidence. I have argued that the best evidence today shows that Miranda no longer effectively protects suspects’ rights for many reasons (including that many suspects do not understand the warnings or have a full opportunity to assert their rights). In my view, we are better off with no Miranda at all. However, I recognize that my view is likely in the minority.

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But court decisions are about people. What about Ernesto Miranda? Liva Baker tells his story in her excellent 1983 book, Miranda: Crime, Law and Politics.

Ernesto Miranda was retried after his conviction was overturned by the Supreme Court. He went in and out of prison. At one point, he earned money selling autographed “Miranda warning” cards.

Then on January 31, 1976, at a bar in Phoenix, Miranda got into a fistfight during a game of poker, and went to the restroom. One man pulled a knife and handed it to another. Miranda returned from the restroom. He was stabbed once in the stomach, once in the upper chest. Miranda was taken to the hospital and pronounced dead.

The killer, it is said, fled down an alley but his accomplice was caught. Before taking him to the police station, the story goes, Phoenix officers read to him, in English and Spanish, from a card:

You have the right to remain silent
Anything you say can be used against you in a court of law
You have the right to the presence of an attorney to assist you prior to questioning and to be with you during questioning if you desire
If you cannot afford an attorney, you have the right to have an attorney appointed for you prior to questioning.
Do you understand these rights?
Will you voluntarily answer my questions?