Do police have the right to remain silent?

It is perhaps the most often repeated piece of legal advice in the United States, made famous more by TV cops than judges or real-life police officers.

"You have the right to remain silent. Anything you say can and will be used against you in a court of law...."

Thirty-three years after the US Supreme Court instructed the nation's law officers to always offer such advice to arrested suspects prior to questioning them, the high court may be on the verge of rethinking the necessity of the so-called Miranda warnings.

Earlier this year a federal appeals court in Richmond, Va., ruled that such warnings weren't necessary so long as incriminating statements by a suspect were made to police voluntarily. The appeals court cited a little-known law passed two years after the landmark 1966 Supreme Court ruling called Miranda v. Arizona.

Alarmed at the prospect of admitted criminals walking free because of a legal technicality, Congress passed the law aimed at undermining the Miranda ruling. Section 3501 of Title 18 of the US Code says, in effect, that a suspect's confession may be used as evidence at trial even if Miranda warnings were not given prior to a confession. Whenever a confession is made voluntarily, Section 3501 says, prior Miranda warnings aren't necessary.

The law has been on the books for more than three decades, but has largely been ignored. Until now.

Making a case

Paul Cassell, a law professor at the University of Utah, has been pushing the issue for seven years, filing briefs in cases and hoping to force the matter all the way up to the nation's highest court. He struck pay dirt when the Fourth US Circuit Court of Appeals adopted his position and refused to throw out the confession of an alleged bank robber because his Miranda warnings may not have been given prior to his statement to federal agents.

The court ruled that since the incriminating statements were given to agents voluntarily, they could be admitted as evidence at the bank robber's trial.

If upheld by the Supreme Court the decision would mean that law-enforcement agencies across the nation would be free to stop issuing the Miranda warnings. It remains unclear what safeguards, if any, would replace the warnings should police rely on the voluntary test exclusively.

The high court could decide to take the case in the next month.

The justices would have to determine whether the Miranda warnings are a rule of procedure or a bedrock principle of constitutional law. If they are a mere rule, then Section 3501 stands as an attempt by Congress to fine tune procedural safeguards laid down by the court. If, on the other hand, Miranda is bedrock principle, Section 3501 must be struck down because Congress does not have the power to reorder the scope of constitutional rights.

All sides in the case are hopeful the high court agrees to hear it. The defendant's lawyers are hoping the court reverses the appeals decision and orders the alleged bank robber's statements suppressed at trial. The Justice Department is hoping the court will reverse the appeals court and declare the congressional law invalid. And Mr. Cassell and the Washington Legal Foundation, a conservative public-interest law group, are hoping the court uses the case to endorse Section 3501 and chip away at Miranda's exclusionary rule.

"The bottom-line issue is whether the criminal-justice system is going to pay attention to victims of crime who should not be victimized again by criminals set free on Miranda technicalities," Cassell says. "There are tens of thousands of criminal cases not solved each year because of Miranda."

In 1965, one year before the Miranda ruling, 60 percent of all violent crimes in the US were solved, Cassell says. Three years later, that figure fell to 45 percent where it has remained. Not all of the decline is related to Miranda, but much of it is, he says.

Miranda's strength

Despite such statistics, many law officers view Miranda as an effective safeguard against police abuses during interrogations and as a means of bolstering the admissibility at trial of a defendant's statements to police.

"The Miranda ruling has had a very positive impact on law enforcement," says Hubert Williams, president of the Police Foundation in Washington and a former police chief in Newark, N.J. "There has always been a division on Miranda in the police world. Some people felt Miranda imposed unnecessary restraints on police investigative methods and limited the effectiveness of police to convict those who perpetrate a crime."

But, he adds, "the Miranda rules prompted police to develop more sophisticated methodologies and strategies in conducting investigations, and to not rely as heavily," on what a suspect says.

Richard Samp of the Washington Legal Foundation disagrees. He says if the Supreme Court upholds Section 3501, police will probably continue to give suspects the Miranda warnings. But, Mr. Samp adds, investigators would have more options in gathering evidence and searching for the truth during an investigation.

"The issue is what happens when you have a voluntary confession and accidentally a Miranda warning was not given," he says. "Is society better served by suppressing the information?"

Samp says the Constitution forbids forcing a suspect to be a witness against himself or otherwise coercing confessions. "But when the confession was voluntary society is not served by upholding arcane legal rules that are not required by the Constitution."

Samp says the nation's priorities are wrong, and rather than attempting to curb police misconduct by withholding evidence at trial, truth should prevail. "How far should we go in subverting the truth-finding process in trying to deter police misconduct?"

(c) Copyright 1999. The Christian Science Publishing Society