You Have the Right to Remain Silent — At Least for a Few More Weeks

“You have the right to remain silent” are words well-known to even those whose brushes with the law are through Hollywood.That script might be set to lose some of its oomph as the Supreme Court prepares to issue a ruling in the case of Vega v. Tekoh, which turns on whether a violation of the rights of a person taken into custody, marked in the 1966 case Miranda v. Arizona, gives rise to a federal suit for monetary damages. If the court decides that Miranda is not sacred writ but merely a man-made script, it will then be up to states to craft their own police procedures. A patchwork of procedures is likely to ensue. At stake is whether a failure to issue a Miranda warning — the rights to remain silent, to be represented by an attorney, and to be protected against self-incrimination — is a violation of federal rights or merely a law enforcement failure. The police officer at the center of the case, Carlos Vega, argues that “Miranda does not directly regulate police conduct, but instead establishes a prophylactic rule of evidence designed to protect a criminal defendant’s Fifth Amendment right against compelled self-incrimination at trial.”In oral arguments, Mr. Vega’s attorney, Roman Martinez, told the Nine that “the violation of such a rule doesn’t violate the constitutional rights of any person. If unwarned testimony is used at trial, he urged the court to assign blame to the prosecutor who presents the evidence and not the officer who collects it.Attorney Paul Hoffman, who represented the man accused of the sexual assault that precipitated the case, Terence Tekoh, rejected the argument that Miranda touches only evidence and not a claim for monetary damages. Mr. Hoffman reasoned that “if Miranda violations lead to habeas relief based on a violation of the Constitution or to the reversal of state criminal convictions on the same basis, the same violations fall within the broad remedial sweep of Section 1983.”The stage is now set for the high court to rule on whether this legal catchphrase is itself woven into the constitutional woof, or is merely an early warning signal installed by judges around the Fifth Amendment’s vulnerable perimeter. That question has been brewing at the court for more than a half-century. Miranda v. Arizona was decided during the apex of the Warren Court’s jurisprudential avant-gardism. Griswold v. Connecticut was decided the year before, and New York Times v. Sullivan preceded Miranda by two years. A decade previously, Brown v. Board of Education had ended legally sanctioned segregation. Miranda was decided by a 5-4 vote, with Chief Justice Warren himself writing the majority’s opinion. The chief distilled the holding to “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” To guard the Fifth Amendment’s guarantee against self-incrimination, five justices composed a kind of secular liturgy for law enforcement, one designed to ensure that statements were both willing and in turn usable in court. In his dissent, Justice John Harlan II quoted a prior titan, Justice Robert Jackson, to the effect that “This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” For Justice Harlan the court took a hammer to the ballast of the Constitution. He could not detect anything “in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action.” Justice Byron White registered his own dissent that because defaulting on the Miranda warning would allow the guilty to walk free, the result would “not be a gain, but a loss, in human dignity.” Such warnings were unknown at common law and smacked of judicial meddling. Another decision proximate to Miranda in both time and spirit was Mapp v. Ohio, which held that the Fourth Amendment’s Exclusionary Rule — that the fruits of forbidden searches could not be used as evidence at trial — applied to the states as well. Like Miranda, and for that matter, Roe v. Wade, Mapp overrode local practices in the name of an expansive Constitutional understanding articulated from the bench. In both Vega and Dobbs v. Jackson, the abortion case whose leaked draft opinion overturning Roe v. Wade set off a firestorm, the court could deliver back to the states questions of law, order, and life.

You Have the Right to Remain Silent — At Least for a Few More Weeks

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