- The Washington Times - Thursday, July 6, 2000

Mathematical problems yield but one correct answer, such as two plus two equals four, which demonstrates the discipline's pronounced inferiority to constitutional law. The latter, in the hands of the solemn-robed jurists on the U.S. Supreme Court, occasionally sports two antagonistic yet correct answers to the identical legal question.

The intellectual feat is as awesome as would be Hamlet's solving the conundrum in his memorable "to be or not to be" soliloquy by being both at the same time. Can there be any better corroboration of F. Scott Fitzgerald's insight that the mark of a deluxe intelligence is the ability to keep two opposite ideas in the mind simultaneously yet retain the capability of functioning?

The high court's latest bravura performance in Dickerson vs. United States (June 26, 2000) addressed the Fifth Amendment privilege against compulsory self-incrimination. For long years, that sacred protection from police coercion and sister abuses had blocked the use of "involuntary" confessions in criminal prosecutions. Voluntary statements used in criminal cases that were self-incriminating, in contrast, were thought unobjectionable. They advanced truth-finding, yet were untainted by police state tactics. Thus, the first Supreme Court answer to the question of what the Fifth Amendment privilege prohibits was prosecutorial use an involuntary confession to convict the accused.

A second answer arrived in 1966 amidst the nation's Great Society utopian enthusiasms and delirium with abstract expressionism. Writing for a thin 5-4 majority, Chief Justice Earl Warren in the now famously cinematized case of Miranda vs. Arizona summoned unpolished slabs of reasoning in holding that the constitutional privilege prohibits the jury from hearing a voluntary confession made during police custody, like Raskolnikov's murder confession to inspector Porfiry Petrovich in "Crime and Punishment." Admissibility, according to the exalted Supreme Court wizard, pivoted on whether the voluntary confession had been preceded by so-called "Miranda warnings," i.e., informing the suspect of his right to silence and the presence of an attorney, and alerting the detainee that anything said could be legally hazardous.

Chief Justice Warren, claiming a mastery of psychology, insisted Miranda warnings were necessary to prevent unsuspecting and traumatized arrestees from blurting out self-incriminating truths.

But why was that was an evil to be deplored? The chief justice was as silent as the Sphinx. Furthermore, his psychology seemed unworthy of even a consolation prize when measured against the gold standard of philosopher Sam Johnson. To paraphrase the British sage, depend upon it sir, the knowledge that a man may be sent to prison for crime concentrates his mind wonderfully of the wisdom of reticence.

To ordinary mortals, the Miranda precedent dethroned the earlier voluntariness answer as to what the Fifth Amendment prohibits as a constitutional imperative. The new gospel was the prosecutorial use of custodial confessions elicited without Miranda warnings.

The Supreme Court, however, soon began casting doubt on Chief Justice Warren's epiphany, especially because it thwarted the highly commendable quest for reliable jury verdicts. With regard to the presence of counsel, Justice Robert Jackson noted even before Miranda in Watts vs. Indiana (1949): "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances."

In Michigan vs. Tucker (1974), then Associate Justice William Rehnquist concluded that evidence derived from a Miranda violation was nevertheless admissible because the warnings required by the precedent "were not themselves rights protected by the Constitution." The court enlisted the same reasoning, i.e., that Miranda was not a Fifth Amendment mandate, in Oregon vs. Hass (1975), New York vs. Quarles (1984), and Oregon vs. Elstad (1985) to sanction unwarned confessions to impeach the accused, to create a "public safety" exception, and to admit a second confession made on the heels of a Miranda-tainted statement from the suspect.

The Dickerson case confronted the court with choosing between the conflicting Miranda and post-Miranda answers about the constitutional status of Miranda warnings. In the 1968 Crime Control Act, Congress championed a non-constitutional status in prescribing a return to the pre-Miranda voluntariness test in federal prosecutions. Chief Justice William Rehnquist, speaking for a 7-2 majority in Dickerson, declared the voluntariness law an unconstitutional encroachment on the Fifth Amendment privilege because Miranda warnings command constitutional dignity. But he simultaneously left undisturbed post-Miranda precedents anchored to the opposite conclusion. In other words, under the Supreme Court's reigning precedents, the warnings are both required and not required by the constitutional privilege.

"A foolish consistency," Ralph Waldo Emerson preached, "is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." A foolish inconsistency, however, deserves the same reproach. If Miranda schizophrenia added to the luster of constitutional law as when in physics light is sometimes treated as a wave and sometimes as a particle to advance understanding then the illogic might deserve our allegiance. But doesn't the court's nonsense simply foment constitutional chaos and confound accurate jury verdicts without a particle of redeeming virtue? If Miranda warnings are coveted by police and prosecutors as a Fifth Amendment safe harbor, nothing in the overruling of the Miranda precedent would prevent their voluntary adoption by every police department in the country and the FBI.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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