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Excerpts from pages 100-103
The most frequent criticism of Miranda, in the years after it was
handed down, has been that the ruling makes law enforcement more
difficult because the primary advantage of the “old world of criminal
procedure” has been lost: Police can no longer interrogate a suspect
quickly, before the suspect has a chance to concoct an alibi or reflect
at length on the legal consequences of truthful confession. Some even go
so far as to say this has had “a devastating effect on enforcement of
criminal law, for it would effectively preclude police
questioning - fair as well as unfair.”
Perhaps the most radical and foolish attack in this vein came from
former Attorney General Edwin Meese III,
who, when asked whether “suspects” should have the right to have a
lawyer present before police questioning, replied, “Suspects who are
innocent of a crime should. But the thing is you don’t have many
suspects who are innocent of a crime. That’s contradictory. If a person
is innocent of a crime, then he is not a suspect.”
Such a patently ridiculous assertion of course deserves no serious
answer; John Frank’s response, that Meese was “a dangerous buffoon in a
high place,” serves best to dispense with this entire line of irrational
overreaction, which has tainted the argument against Miranda. The
far better argument, one deserving a reasoned response, is that
Miranda has created the possibility that even confessions given
freely, prior to any police questioning of any kind, might well be
inadmissible in a courtroom, and thus dangerous criminals, relieved of
their confessions, can and do walk away unprosecuted.
It simply cannot be denied that this has happened, just as it cannot be
denied that the job of the arresting officer has been made more
difficult, for he is now required to advise the suspect of his rights
“without word games, lies, or qualifiers,” as Peter Baird wrote in a
Wall Street Journal counterpoint editorial, published on the
twenty-fifth anniversary of the Miranda ruling.
Baird, who had written portions of the appellate briefs in Miranda’s
retrials and appeals, further conceded that if the arresting officer
failed to warn, and “if the only evidence is the unwarned suspect’s
confession,” then the prosecutor’s case would be “stillborn.”
However, Baird then put this difficulty in perspective, reminding
critics of the obvious: In the twenty-five years since becoming law,
Miranda has had no effect on police methods of prearrest
investigation and detection because the Court’s decision applied only to
suspects in custody. There was no legal requirement to read
Miranda warnings to suspects until they were actually placed under
arrest. Also, six years after Miranda, in a case that raised the
question of what to do with confessions made before the warning could be
issued, the Supreme Court contended that if the police failed to warn a
suspect of his constitutional rights and the suspect did confess, the
unwarned confession could be “cured,” that is, presented at trial to
contradict a subsequent denial.
In his anniversary editorial, Baird also made one of the most compelling
arguments in answer to the charge that Miranda hampered law
enforcement. First pointing out that the educated and the affluent, as
well as the organized criminal, are almost always aware of their
constitutional rights, he insisted that “More than anything else,
Miranda v. Arizona means that information about our constitutional
guarantees is no longer rationed on the basis of wealth, experience, or
education.”
Some of Miranda’s earliest, most vocal, and most respected
critics, including former Supreme Court Justice Tom Clark and Chief
Justice Warren Burger, had by 1989 changed their views regarding
Miranda’s effect on law enforcement, no doubt giving way to the
statistical evidence, which showed that, as of 1988, less than 1 percent
of all American criminal cases had been dismissed because of “unwarned”
confessions.
And only a fraction of that 1 percent was dismissed for noncompliance
with Miranda. In fact, most law teachers, academic lawyers,
professional prosecutors, and managerial level police officers see
increased professionalism rather than decreased prosecutions as a
consequence of the Miranda doctrine.
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