Miranda V. Common Sense: Justice Scalia’S Dissent In Dickerson And Why The Court Should Overrule Miranda During The 2003 Term

By Phil Angus. on February 15, 2019 in Law
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DURING the 2003 Supreme term, Justices will hear three cases involving the Miranda issue. In Missouri v. Seibert .02-1771, a murder suspect was interrogated by police without notice of the right to remain silent. The Missouri Supreme Court held that the interrogation process was improper; thus the conviction obtained as a result of the suspects’ incriminating admission was overturned. In Fellersv. U.S., 02-6320, Nebraska police interrogated a drug dealer two times – once without Miranda and the second time while the suspect was in jail. As a result, the second interrogation was tainted because police initially “failed” to follow Miranda’s dictates. In U.S. v. Patane, 02-1183, a criminal in illegal possession of a gun said he already knew his rights and waived the reading of them. Nevertheless, his conviction was overturned and the issue before the court was whether police must read suspect Miranda rights prior to seizing illegal contraband which is used at a later trial.

Miranda v. Arizona changed the American judicial landscape, effectively creating new, formerly unobserved, Constitutional rights. The strictly delineated mandates of Miranda are, at best, constitutionally dubious; at worst, deleterious to effective law enforcement. Originally predicated on the court’s determined effort to strongly discourage coercive interrogatory tactics, Miranda’s patent inflexibility does not wholly justify the court’s, well-intentioned, yet indefensible holding. Indeed, in 1968, Congress responded to Miranda by passing 18 U.S.C.A: Ș 3501, thus acknowledging Congress’s commitment to the voluntariness test pursuant to the due process clause. $3501 also served the purpose of overriding Miranda’s stringent and unconstitutional dictates.

It is in this purview, then, that Justice Antonin Scalia found it necessary to vigorously dissent in Dickerson v. the U.S., observing that, “[T]he Court has squarely concluded that it is possible – indeed not uncommon for the police to violate Miranda without also violating the Constitution.” This fact illustrates the current judicially created morass that has become perhaps Miranda’s second greatest legacy. It also signifies Miranda’s obvious betrayal of the text of the Constitution. The majority holding in Dickerson seems to fly in the face of logical reasoning. Consider the Court’s odd statement concerning upholding the constitutionality of Miranda. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, we are addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.”

Miranda V. Common Sense

In his dissent Scalia seems to be quite perplexed – in essence, if the Court concedes that Miranda was wrongly decided from the outset, why does it feel compelled to uphold it now? And why should it matter that it did not originally decide Miranda? Is the Court implying that stare decisis can be determinative even when reviewing a decision that many members of the court consider to be constitutionally absurd? It seems, then, almost as if the Court is holding the Miranda should be upheld by an understanding that can be considered as one less than judicial fiat.

To then deflect this charge, the Court seems to defend its ground on the rather thin reed of judicial efficiency; “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Then the Court almost apologizes “recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule.” A specious claim, Scalia concedes the rather unwieldy nature of resolving these issues, but nevertheless responds with the far more legal reasoning: “were I to agree that the old totality of the circumstances test was more cumbersome, it is simply not true that Miranda has banished it from the law and replaced it with a new test.”

Scalia hammers the Dickerson majority for insisting upon an immutable and adamant adherence to the unworkable Miranda standard, despite its unconstitutionality and its resulting injurious effect on the already established “voluntariness” test clearly enunciated by the courts to be within the boundaries of the Constitution. In fact, no Court before, or since, Miranda has stated in express or implied terms that the voluntariness test is no longer applicable. Dickerson, in fact, identifies and subsequently affirms this test: “We applied the due process voluntariness test in ‘some 30 different cases decided during the era between Brown and Escobedo…’ Those cases refined the test into an inquiry that examines ‘whether a defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.” This test is the correct constitutional mandate. If any statement fails this Constitutional test, regardless of the difficulties that may be involved when determining the “totality of the circumstances,” it is inadmissible by law.

Miranda V. Common Sense
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Scalia’s Dickerson dissent takes the majority to the task, chiding it for so blatantly engaging in power grabbing, when deciding, despite its own belief, that an act which is itself, not unconstitutional, can be so defended if the court so presumes. Decrying the grossly improper majority holding that $3501 (reinstating the “totality of the circumstances” test)was unconstitutional, Scalia contends, relying on Marbury v. Madison, that to “’disregard’” $3501, a duly enacted statute,” would only be constitutionally mandated if “it ‘be in opposition to the Constitution.”’ Therefore, by declaring that $3501 is unconstitutional, despite, the Court’s own admission that the “totality” test, which $3501 attempts to reestablish, is not unconstitutional, Dickerson’s holding is not simply judicially overreaching, but also, it is logically disconcerting.

No provision in the Constitution calls for Miranda warnings. It is time to overrule Miranda. This, at the very least, would be a major victory for police forces that work very hard to protect the citizens of their communities. Additional, the Court’s activist proclivities must be reigned in. If not, Justice Scalia’s prescient words will become even more telling:

The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether, in the light of “various circumstances,” they can be “modified;” they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy. Scalia’s test castigation of the majority’s convoluted holding is singularly definitive of a Court gone astray. As long as the Court insists on playing constitutional referee, and insisting that its proclamations asserting what it c

considers to be subjectively fair are to be considered constitutional rules, it will continue to subject itself to continued improvements and modifications so as to continue to remain “fair.” This zero-sum game that the Court insists on practicing, however, is the reason for the conundrum in which it finds itself concerning Miranda and its subsequent progeny. During the 2003 Supreme Court term, Justices should take the opportunity and recognize the Miranda and Dickerson can properly be resolved with one word: Overruled.


Phil Angus

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