Wednesday, June 16, 2010

On Limiting Miranda

I see some liberals bemoaning the Supreme Court's decision in Berghius v. Thompkins, in that it cuts back on a suspect's Miranda protections. I think this concern is misplaced.

First, as a longtime liberal I have generally supported the trend started in the '60's. However, after a careful review of the major decisions this year, I now understand what conservatives are referring to when they complain about the Court making social policy, "legislating from the bench" as its often called. It is clear to me that this is what the Court often does, at least used to often do.

Take the Court's recent decision in the Florida case involving a life without parole sentence for a juvenile. The dissent by Thomas clearly identifies that the Court is here making social policy, not rendering a legal decision. After all, when 31 jurisdictions have such a law, it can hardly be said to be "unusual". And how can life without parole be considered "cruel", when we routinely do it for adults. If it is indeed cruel, then it should not be done for either adults or children. Consequently, simple logic dictates that one cnanot with integrity conclude it is "cruel and unusual" as a matter of law. Thonas wins this arugment hands down.

Turning then to Miranda, it is clear the Court was making social policy here also. In his book "Guilty: The Collapse of Criminal Justice", Judge Harold J. Rothwax examines the cases involving police coercion of confessions which led up to the Miranda decision. Clearly we don't want confessions being forced, but Rothwax says that this decision throws the baby out with the bath water. He argues that Miranda was wrongly decided and should be overruled.

Given the shaky background of the decision itself, it is hardly surprisingly that any subsequent decisions would limit it rather than expand it. Indeed, it is hard to imagine how it could ever be expanded. The burden it placed on the police to affirmatively show a waiver of rights by the defendant was a huge one, and what the Thompkins decision does is merely to cut back on that unhealthy burden.

The genera rule is that rights must be affirmatively asserted to be invoked, they are not invoked automatically. The Thompkins decision merely restores this principle to the category of admissions. If being advised of one's rights is so damned important, why are the police not required to do so in the case of searches? The vast majority of police searches are conducted under the guise of "consent". But people do not have to be advised that they have the right not to consent, and many surely feel they have no choice when the cops show up and ask if they can search the place, or simply *say* they are going to search the place.

The other side of this issue is the "right to a lawyer". Here, too, Rothwax feels the law has gone way overobard. He points out that the Sixth Amendment gives the right to a lawyer "in all criminal prosecutions". Thus, the right kicks in once a case is filed against the defendant. Until then, the case is in the investigative phase and is in the hands of the police. When it is turned over to the DA, then the legal process starts.

This, too, maks eminently good sense. What role is there for a lawyer before there is any prosecution? All he can do is tell the defendant not to talk to the police. In a small number of cases it might be possible to arrange to avoid prosecution, if the client wants to go to work for the police as a snitch.

It is in this general area that the show "Law and Order" screws things up so badly, giving people wrong ideas of the lawyer's role. The show routinely has the prosecutors getting involved in the investigation, going out and interviewing witnesses and rounding up evidence, not as preparation for trial, but as part of the investigation. Similalry, defense attonreys constantly are magically appearing in an interview room while police investigative work is going on. The idea that defense attorneys have the run of a police station like this is something happening only on TV shows.

Conversely, once the case is filed the worst procedural errors occur, these being the meetings which always take place between the prosecutors and the defendant on "Law and Order". Yes, the defendant's attorney is present, but in real life this sort of meeting would never happen. If the prosecutors had in inquiry to make of the defendant in real life, they would go through the defense attorney, who would consult with the client and come back with an answer for the DA. But on the show, prosecutors are allowed to badger and berate the defendants, and even surprise them with witnesses or family members at these meetings, anything designed to bludgeon the defendant into confessing. No defense attorney would ever allow this sort of thing to go on.

I say let's go back to where everybody has a particular job to do, and the rest of us stay out of their way and let them do it. Let's let the police do their investigative job, and everybody else stay out of their way. Let's let defense attorneys do their job, once a case is filed, and everybody stay out of their way. Let's let Judges go back to their job of deciding if a confession is voluntarily made, based on the totality of the circumstances in a given case. Let's let the Supreme Court go back to making legal decisions, not making policy. And let's let legislators go back to writing laws, which after all is what we elect them to do.

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