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Jewish World Review Jan. 18, 2000 /11 Shevat, 5760

Nat Hentoff

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Will Miranda make it? -- LONG AFTER the Supreme Court's 1966 Miranda decision requiring police to tell criminal suspects their rights before questioning them, I spent six months with a New York City squad of homicide detectives.

Generally, police do not welcome reporters hanging out in their workplace, but a veteran member of the squad was a fan of Charlie Parker's and had read some of my writing on that nonpareil alto saxophonist. With that detective's imprimatur, I was able to be there so often that the other detectives became used to me.

They would tell me some of the particularly sickening details of murders they had to clear. Without exception, they took the job personally and were determined to find and put away the killers.

I wanted to find out if they felt that the Miranda warnings were impediments to justice. Over time, I asked each one separately about Miranda while we were also talking about other matters.

With only one exception -- the youngest and newest member of the squad -- each said essentially the same thing. Their comments, similar to those of a good many other police officers around the country, are particularly pertinent since the Supreme Court will decide during this term whether Miranda warnings will continue to be mandatory to justify admitting confessions in federal prosecutions.

The case, Dickerson v. United States, comes to the court from the 4th Circuit Court of Appeals. It ruled that Section 3501 of the 1968 Omnibus Crime Control Act requires that voluntary confessions be allowed in evidence in federal cases, even if they are not preceded by Miranda warnings. The warnings can continue to be given, but will not determine the validity of the confessions so long as they are voluntary, considering all the circumstances of the interrogation.

Moreover, if the Supreme Court agrees with the 4th Circuit, individual states will then be able to legislate their own versions of Section 3501 and Miranda will become only a shadow of its former self.

The homicide detectives I asked about Miranda said that at first they were resentful of Supreme Court justices, who had never been in danger of losing their lives pursuing suspects on mean streets but nonetheless insisted on handcuffing police officers.

But as significantly more of their arrests held up in court because of Miranda, they became at ease with the warnings.

On the other hand, the single most determined opponent of Miranda's mandatory warnings will argue against them before the Supreme Court. Paul Cassell, a professor at the University of Utah College of Law, has been selected by the court for this historic role.

In the Nov. 30 Criminal Justice Weekly -- a valuable new American Lawyer Media publication that covers key cases and trends in criminal law -- Cassell engaged in a debate with Prof. Yale Kamisar of the University of Michigan law school.

"In recent years," Cassell said, "the court has shown itself disenchanted with rigid rules that exclude reliable evidence from criminal trials. Instead, the court has placed increasing emphasis on the search for truth as the fundamental value underlying the criminal justice system. Look for the court to uphold the Fourth Circuit's ruling in Dickerson."

Kamisar, however, recalled what Justice Hugo Black said during oral arguments in the Miranda case: "If you are going to determine the admissibility of a confession each time in the circumstances . . . one by one . . . it is more than we are capable of doing." And it is more than increasingly overburdened lower court judges are capable of doing.

And Kamisar added a point made by Justice David Souter in Withrow v. Williams (1993) that "in protecting defendants' Fifth Amendment [constitutional] privilege against self-incrimination, Miranda safeguards a fundamental trial right."

Even the one holdout among the homicide detectives I asked about Miranda softened his opposition as he saw the Charlie Parker admirer leading the squad in confessions without raising his voice, or his hand. He would spend a long time in the cell getting to know the suspect.

It didn't always work, but Miranda did not stand in the detective's way.

Kamisar is confident the Supreme Court will not get in Miranda's way. There are prosecutors and national police organizations, to be sure, urging the court to overturn Miranda. But far from all cops on the street agree.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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