- The Washington Times - Tuesday, December 7, 1999

In an unusual brief recently filed in the Supreme Court, the Clinton Justice Department abandoned its obligation as chief federal prosecutor and instead chose to side with criminal defendants in an issue of crucial importance to the protection of crime victims. In Dickerson vs. United States, a case that the Supreme Court decided to review yesterday, the Justice Department joined with a criminal defendant in arguing to uphold the blanket “exclusionary rule” adopted in Miranda vs. Arizona. That decision requires judges to exclude from evidence otherwise voluntary confessions where police have in any way made a mistake in delivering the now-familiar warnings heard nightly on television cop shows.

Arguing in support of Miranda, the Justice Department has asked the Court to ignore a 1968 federal statute enacted in response to the decision and designed to prevent the automatic exclusion of confessions where judicially-required warnings were not administered. The administration’s view that the Court should instead continue to follow a rule designed merely to provide a buffer zone to protect constitutional rights is dead wrong. The Clinton administration should be chided for elevating the technical “rights” of criminal defendants over the rights of the millions of crime victims in the United States.

In the case before the Supreme Court, after confessing to participating in a series of armed bank robberies, Charles Dickerson subsequently convinced the trial court to throw out his confession because he had not been read his rights. Relying on the 1968 statute, the United States Court of Appeals for the Fourth Circuit reversed, concluding that the otherwise voluntary confession should not be thrown out simply because a technical Miranda violation occurred.

The Fourth Circuit rightly criticized the Justice Department for “affirmatively impeding” enforcement of the 1968 law. The administration has prohibited its front-line prosecutors from relying on the statute to secure the admission of voluntary confessions. The Justice Department argues that courts should not apply the valid statute, but rather should adhere to a pro-defendant judicial doctrine. In doing so, the department abdicates its role as principal defender of congressional enactments, leaving the task of arguing for the prosecution to a Washington, D.C. public interest law firm, the Washington Legal Foundation. Ironically, the case aligns the criminal defendant with the United States government, while pitting the government against itself. Political appointees at the Justice Department impede the law-enforcement efforts of front-line federal prosecutors, who have been hampered for decades by Miranda’s artificial limitations.

Which side ultimately wins this battle will have repercussions well beyond the facts of the case. Common sense and the law suggest that the political appointees are on the wrong side. As the Supreme Court repeatedly has stated, the Miranda exclusionary rule is not mandated by the Constitution. Rather, it was cut from whole cloth by the Warren Court as a “prophylactic” measure. As a result, Congress has the power to change it. Indeed, the Miranda Court itself invited Congress to draft new rules. Congress did so only a couple of years later, gutting that part of the decision requiring automatic exclusion of any confession obtained in the absence of the warnings. Courts must enforce this valid act of Congress.

Enforcement of the 1968 statute is also good policy. Despite predictions of disaster from criminal defense lawyers, enforcement of the statute will not lead to trampling of the rights of criminal defendants. The 1968 law itself strongly encourages police to continue to give Miranda warnings with each arrest. As part of determining whether a confession is admissible, a court must continue to examine whether a defendant has been advised of the right to remain silent or the right to counsel. Police therefore can and will continue to police themselves by reading the Miranda warning to criminal defendants. The statute merely provides that a technical failure to give a warning will not bar the admission of a confession, so long as the confession is otherwise voluntarily given. It thus recognizes that too many criminal defendants are set free because of inadvertent mistakes by the police rather than conscious decisions to disregard constitutional rights even in the face of convincing evidence of guilt and a lack of evidence that their confessions were actually coerced.

More troubling than those cases lost by prosecutors as a result of Miranda’s exclusionary rule are the crimes that are never solved as a result of the decision. As Prof. Paul Cassell has demonstrated, tens of thousands of crimes may go unsolved each year as a result of the decision. Similarly, a comparison of criminal confessions before and after the Miranda decision suggests that Miranda rules may have prevented many dangerous criminals from ever confessing their crimes.

Charles Dickerson’s case may present a test case for the Supreme Court. But if this case is a test, the Clinton administration has already failed. And the casualties may be costly.

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