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The government first asserts that there are only two paths this Court can follow--constitutionalize Miranda or overrule it. Brief for the United States 29. The government then asserts stare decisis as blocking the overruling path, leaving only constitutionalization. Id., at 29-31. The defendant makes a similar argument. Brief of Petitioner 30-31.
Actually, stare decisis blocks both paths. If the Court is really forced to the choice the government asserts is necessary, then it will have to overrule some precedent--either Miranda itself with all its progeny or the many cases holding that the Constitution does not require the Miranda rule.
As noted earlier, this Court has often labeled Miranda's rules and procedures, not as constitutional rights themselves, but as prophylactic safeguards for the Fifth Amendment privilege. See supra, at 9-13. Such statements are not dicta, but instead play a central role in limiting Miranda's invasive regulation of police procedure. Thus in New York v. Quarles, 467 U. S. 649, 655-658 (1984), this Court could engage in a balancing of interests and craft a public safety exception to Miranda because "[t]he prophylactic Miranda warnings are 'not themselves rights protected by the Constitution.' " Id., at 654 (quoting Michigan v. Tucker, 417 U. S. 433, 444 (1974)). By comparison, the constitutional right to be free from compelled self-incrimination is not amenable to any policy related to balancing of interests. In New Jersey v. Portash, 440 U. S. 450 (1979), this Court held that compelled but immunized testimony could not be used to impeach the declarant in a subsequent criminal proceeding. This Court distinguished such testimony from statements taken contrary to Miranda, which can be used to impeach. See Oregon v. Hass, 420 U. S. 714, 723-724 (1975); Harris v. New York, 401 U. S. 222, 225 (1971).
"Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible." Portash, supra, 440 U. S., at 459 (emphasis added).
The limits on Miranda such as those found in Quarles, Harris, Hass, Michigan v. Tucker, 417 U. S. 433, 445 (1974) (fruit of the poisonous tree doctrine inapplicable to Miranda), Oregon v. Elstad, 470 U. S. 298, 308 (1985) (same), Duckworth v. Eagan, 492 U. S. 195, 203 (1989) (variation on Miranda warnings), and McNeil v. Wisconsin, 501 U. S. 171, 180-182 (1991) (request for counsel at judicial proceeding is not a Miranda invocation) would probably not survive Miranda's transformation from a nonconstitutional prophylactic to a constitutional right. The balancing of interests that is the hallmark of most of this Court's Miranda jurisprudence cannot be squared with a decision in this case equating the Miranda procedures with the actual Fifth Amendment privilege. Transforming Miranda into a constitutional right would leave this Court with two choices: either raise Miranda violations to the level of actually, as opposed to presumptively, compelled self-incrimination, and thus overruling much of its Miranda jurisprudence, or lower Fifth Amendment standards by treating all instances of compelled self-incrimination as this Court currently treats Miranda violations, which would require overturning many Fifth Amendment cases. Whether this Court raises Miranda or lowers the Fifth Amendment standard, much of its jurisprudence would have to be overturned.
This eliminates stare decisis as a justification for preserving a constitutionalized Miranda rule. Stare decisis should not prevent the reexamination of an inconsistent line of cases, such as when later decisions erode the authority of earlier cases. See Agostini v. Felton, 521 U. S. 203, 235-236 (1997). This is particularly true in cases of constitutional criminal procedure, where stare decisis interests are at their weakest. See Payne v. Tennessee, 501 U. S. 808, 828 (1991).
If some case must fall, it should be Miranda. Miranda is "poor constitutional law." Miranda, supra, 384 U. S., at 504 (Harlan, J., dissenting). This decision was literally unprecedented. "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." Id., at 526 (White, J., dissenting). When this Court first applied the Fifth Amendment to federal custodial interrogation, it relied on a voluntariness test; no special warnings or other procedures were involved. See Bram v. United States, 168 U. S. 532, 557-558 (1897). Until Miranda, all state and federal confessions were analyzed under the same voluntariness inquiry. Miranda was an unanticipated shock to the criminal justice system that would have been disastrous if applied retroactively. See Johnson v. New Jersey, 384 U. S. 719, 731 (1966).
Miranda was unprecedented because its essence was based on faulty logic. Miranda's "right of silence," Miranda, supra, 384 U. S. at 444, is incorrect Fifth Amendment law. "[T]he right, or better the privilege, is against being compelled to speak" rather than staying silent. H. Friendly, Benchmarks 271 (1967) (emphasis added). This difference is more than "mere semantics; it goes to the very core of the problem since the privilege exists only when the statement is compelled, the question of waiver is not reached until compulsion has been shown." Ibid. The Miranda majority leapt over this gap in its logic through its "conclusive presumption" that a person undergoing custodial interrogation " 'cannot be otherwise than under a compulsion to speak.' " See ibid. (quoting Miranda, 384 U. S., at 467); supra, at 5.
The conclusive presumption that compulsion follows from custody is as wrong as it was unprecedented. Before Miranda, custody had merely been one factor in determining whether the confession was in fact compelled. See, e.g., Bram, supra, 168 U. S., at 558. As the Miranda majority admitted, the dissents proved, and experience confirmed, unwarned custodial confessions are quite capable of being voluntary. See supra, at 6-7. Indeed, voluntariness is the norm for unwarned custodial confessions. The best research available when Miranda was decided showed that police interrogation procedures substantially complied with Fifth Amendment and Due Process requirements. See Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1443-1444 (1985). When Miranda was decided, "the law enforcement establishment was engaged in a critical self-examination of its procedures." Ibid. Miranda cut dead this reform movement, replacing it with a detailed code of procedure based upon an unwarranted presumption of compulsion. "The Court disserves its great role as vindicator of the Bill of Rights when it constructs from plainly inadequate data a generalization refuted by the common experience of mankind." Friendly, supra, at 273.
Miranda's greatest flaw is self-admitted; it excludes voluntary confessions. See supra, at 6-7. Voluntary confessions are essential to the vital task of detecting and prosecuting crime. See supra, at 4. Every lost voluntary confession threatens to free a guilty criminal or force victims to undergo needless, traumatic litigation. Thus even though Ernesto Miranda's confession was obtained "without any force, threats or promises" and was "unmarked by any of the traditional indicia of coercion," see Miranda, supra, 384 U. S., at 518-519 (Harlan, J., dissenting), the woman he brutalized was forced to endure again the pain and indignity of testifying about the rape, because his voluntary confession was not protected by the Miranda talisman.
By unnecessarily limiting custodial interrogation and its final product, voluntary confessions, Miranda does a grave and continuing disservice to society. Society has no greater function than to protect its people and their property from crime. See Illinois v. Gates, 462 U. S. 213, 237 (1983). In its great rush to place suspects on a level playing field with the police, the Miranda majority ignored the many nameless victims of crimes not prosecuted and guilty criminals let free because Miranda and its progeny prevent the police from obtaining or the courts from utilizing voluntary confessions.
"In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case." Miranda, supra, 384 U. S., at 542-543 (White, J., dissenting).
The government's claim that Miranda's bright line should be kept because it is easily followed by police and courts, see Brief for United States 31-36, is a tattered fig leaf that fails to cover Miranda's glaring faults. As the government admits, Miranda has its difficulties, particularly with regard to custody, and invocation of counsel under Edwards v. Arizona, 451 U. S. 477 (1981). See Brief for United States 35. Furthermore, Miranda's alternative, the voluntariness standard, is sufficient. Voluntariness was acceptable for the almost 70 years between Bram and Miranda. The decision declining to apply Miranda retroactively referred to the voluntariness standard as having grown "increasingly meticulous through the years." Johnson, supra, 384 U. S., at 730. Furthermore, many confessions that are excluded from the case-in-chief under Miranda currently must still run the voluntariness gauntlet, if the confession is to be used for impeachment or if the defendant seeks to exclude derivative evidence. See, e.g., Mincey v. Arizona, 437 U. S. 385, 396-398 (1978); J. A. 212. Miranda's minimal convenience does not justify the harm it does to public safety or the Constitution.
As Dean Caplan notes, the Miranda majority's emphasis on fairness for the accused at the expense of society's legitimate interest in prosecuting crime is an example of the sporting theory of justice. See Caplan, supra, 38 Vand. L. Rev., at 1441-1443. Miranda's gamesmanship has no place in the Constitution. "A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule." McGuire v. United States, 273 U. S. 95, 99 (1927); accord United States v. Ceccolini, 435 U. S. 268, 279 (1978). Congress's solution is an improvement over Miranda, even if it is not the optimum solution.
The rules of Miranda and its progeny are not constitutional commands. Arizona v. Roberson, 486 U. S. 675, 688 (1988) (Kennedy, J., dissenting). If this Court should decide that the choice is really between overruling Miranda and striking down §3501, along with all the cases holding that Miranda is not constitutionally required, then Miranda should go.
The decision of the Court of Appeals for the Fourth Circuit should be affirmed.
March, 2000
Respectfully submitted,
Edwin Meese III
Kent S. Scheidegger|
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