Miranda warnings are critical not only to show that the suspect has been ADVISED of the right to remain silent, but also to establish that the suspect knowingly and voluntarily WAIVED those rights.

Police are well-trained to convince people to waive their Miranda rights, including ignoring the invocation of such rights by continuing to pressure the suspect to talk (e.g., by the cop’s making a phone call in the suspect’s presence after the suspect says s/he’ll take the Fifth: “Yeah, the fool’s refused to talk. We can’t do anything for him if he won’t talk to us,” or by angrily saying in response “Have it YOUR WAY!!!,” bursting out of the room, and slamming the door shot (perhaps to have another cop, in the “good cop” role, show up to gently escort the suspect to the cell.

The very fact that so many people know about the Miranda rights may make them wonder whether they’re only entitled to remain silent AFTER those rights are read. Cops routinely seek statements from suspects BEFORE arresting them, because Miranda rights do not need to be read to people who are not in custody. Cops know that Miranda warnings yield fewer statements from suspect.

I’ve written more about Miranda here:
http://markskatz.com/blog2/serendipity/archives/20-When-Ernesto-Miranda-applies-little-more-than-Carmen-Miranda..html

Posted by Matt | February 12, 2007 22:51

Miranda warnings are pretty irrelevant at this point in history anyway. Everyone who watches television knows that if they’re arrested they have the right to remain silent, consult an attorney, and have the state pay for their representation if they can’t afford to. Hell, criminals in other countries, where such rights are not offered, consider themselves entitled to them anyway, on the basis of having watched American cop shows.

I’m assuming that judges are doing this because they dislike the final outcome of the specific case before them if they don’t find an exception. That’s my understanding of “hard cases make bad law.”

I suppose one choice would be to avoid picking judges who do that, but that wasn’t a very radical idea. Instead, I asked: How do you change the incentives for judges so that they stop doing this?

Thinking in terms of incentives, one thought was to give judges some way to make a one-time-only exception. This would give judges a way to avoid an undesirable outcome in a specific case, without establishing a precedent. We’ve removed the incentive for creating unfortunate exceptions to the rules.

However, without fear of establishing a bad precedent, we’ve also removed the incentive for judges to ever follow the rules. We’ve eviscerated the rule of law.

One solution to that problem is to cap the number of times this power can be used, so judges will only use it when absolutely necessary. However, even as little as once-per-year-per-judge seemed far too often. But if there are fewer chances to use this power than there are judges, then the power will have to be rationed by a central authority, some statewide office…such as the Governor.

Once we allow someone outside the judiciary to override court rulings, we might as well admit that we’re creating a power to imprison people without due process and call it what it is.

I think of it as sort of a mirror image to the Governor’s power to pardon.

I certainly hope you’re kidding about that whole “authorizing incarceration without conviction” thing.

The present state of jurisprudence on admissability of evidence may be a travesty (and it is), but replacing it with the power to incarcerate American citizens on a whim is most definitely not the answer. I think I’d be quite justified in asserting that the day such a thing is seriously proposed is the day that violent revolution should start. Anyone who thinks such power would be used against violent criminals in preference to political opponents is hopelessly naive.

At least under the present system, a person has to either be so likely to be guilty that they get convicted by a jury, or so well-compensated that they plead guilty even though they’re innocent, before they can be sent to prison. Both of these metrics could stand a great deal of improvement, but they’re better than the “you go to jail because the Governor doesn’t like you” standard.

As to plea bargaining, all litigants (both criminal and civil) must have the right to negotiate or not negotiate settlements to cases. For criminal cases where I practice (Maryland, Virginia, DC and the federal courts), the judge has the option to accept or reject a guilty plea. A problem with the federal sentencing system is that it penalizes people for going to trial (and losing) rather than pleading guilty without a trial. Sentencing Guidelines or none, I do not like when judges penalize defendants for requiring the prosecutor to try to prove their guilt beyond a reasonable doubt at a trial.

Regarding reverse truth in sentencing, as you call it, beyond consequences for future convictions, a wide range of felonies and misdemeanors can cause massive havoc on non-U.S. citizens’ immigration status, as well as on receiving government benefits, security clearances, and job and educational status. Certainly, we have an overly draconian criminal justice system (for many reasons) that places too much currency on the characterization of past convictions for such considerations as mandatory minimum sentencing, sentencing guidelines, and penalties for violating probation and parole.

As to your remaining suggestions, I do not believe in chipping away at any rights the courts have confirmed exist for criminal defendants. The Miranda case is particularly sacrosanct and has withstood decades of attacks, sometimes more wounded as a result. If any existing criminal defendants’ rights are to be lost, that should only be as a result of a defendant’s waiver of those rights, and not as a result of the rights being removed by anybody else.

Thanks for requesting my comments. Jon

—
Jon Katz
Criminal Defense Lawyer for MD, DC & VA
MARKS & KATZ, LLC
Silver Spring, MD 20910, (301) 495-4300
Underdog Blog: http://markskatz.com/JusticeBlog

Jon,

Mike at Crime & Federalism just suggested eliminating plea bargaining by eliminating guilty pleas. That gave me some crazy ideas of my own, and I’m looking for comments in the same spirit: