Since 1966, we have lived in a world where if the police coerce an involuntary incriminating statement, generally it cannot be used against a criminal defendant at trial. People who are placed in custody and questioned by the police are required to be informed of their rights to remain silent and to have an attorney present during questioning.
This is the Miranda warning with which we are all - or should be - familiar. You can’t see an American police procedural without hearing that rule. If you watch the BBC, those who are interrogated are placed under “caution.” Those zany Brits…
Miranda v. Arizona would have celebrated its sixtieth birthday in 2026, battered and bruised over the years, but fundamentally in tact. Sadly, I have to inform you that Miranda was part of the legal furniture damaged or destroyed during this term of the Court.
Over the decades, courts have wrestled with the questions of whether Miranda is a (prophylactic) rule or a right. More about that below. Moreover, the Court seemingly was never comfortable in devising a method trial courts could use in determining whether a defendant at trial had voluntarily made an incriminating statement - if the statement was voluntary, it came into evidence; if coerced, it was excluded from evidence at trial.
The difficulty was determining which was voluntary and which involuntary. It didn’t seem like there was one test or guide the courts could use.
From this alone you can probably tell that the Miranda warnings are a pretty big deal.
So let’s get to the issue at hand in last week’s case, Vega v. Tekoh. The facts are straight forward: Tekoh was a nursing assistant in a medical center when he was accused of sexually assaulting a patient. The Sheriff’s Department was called, Deputy Sheriff Vega came and interviewed Tekoh, the result of which Tekoh wrote an apology for touching the patient’s genitals.
At trial (there were two, the first was a mistrial) while it was disputed whether Vega coerced the letter from Tokeh, it was undisputed that Vega never read/informed Tokeh of his Miranda “rights” (in quotes for reasons detailed below). Finally, the jury returned a verdict acquitting Tokeh, who in turned sued Vega under 42 U.S.C. § 1983 for violation of Tokeh’s rights.
Thus the case at issue: the Federal District Court C.D. Cal, and the Ninth Circuit Court of Appeals found that Vega, by not Mirandizing Tokeh, had violated Tokeh’s rights against self-crimination protected by the Fifth Amendment.
The Supreme Court disagreed and reversed the lower courts. Silly lower courts.
At issue was not the Miranda warning per se. That’s still valid. If involuntary statements are made, they can still be barred from trial under the exclusionary rule. As far as this goes the earth still turns on its axis.
What was at issue was what Miranda was: whether it was a prophylactic (told you we’d get here) or a right? If it’s a right, then its violation can be remedied under 42 U.S.C. § 1983; if it’s a rule, no suit for a civil rights violation can be brought.
So what did the Court decide? Miranda is a …. I’ll wait …. its coming …. almost here … RULE! At least it is by a vote of 6 to 3.
The Court determined that the Miranda warning was really prophylactic rule instead of a right. It’s author is Alito (I know, Sam the Sham) joined by, among others, Thomas (Clarence the Con?). I emphasize this to signal a little irony alert for the end.
If you’re a lay person, you’re probably asking what a prophylactic rule is? It does sound delightfully salacious but, really, it isn’t. Rather, it is a Court devised rule intended to protect and enforce a constitutional right. Put another way, the rule “overprotects a constitutional right, and gives more protection than such right actually deserves or requires. This is done in order to safeguard that particular constitutional right or to improve detection of violations of that right.” (USLegal.com - don’t judge me, Black’s 6th ed. doesn’t have a straightforward definition.)
A mistake that the Miranda Court made was after crafting the warnings, it invited the Congress and the states to devise their own warnings if those warnings could better protect the individual’s rights. For 32 years litigation commenced regarding exceptions to Miranda’s exclusionary rule remedies. And for all that time, the Court’s rationale for allowing these exceptions was that the Miranda warnings constituted a mere prophylactic rule. Indeed the Court had held that Miranda was not an interpretation of the Fifth Amendment.
Therefore, a violation of the Miranda warnings did not constitute a violation of a constitutional right. Then came Dickerson.
U.S. v Dickerson held that the Congress could not statutorily supersede the Miranda warnings. The opinion, authored by Chief Justice Rehnquist (no liberal snowflake), held that the Miranda Court announced a “constitutional rule” that could only be overturned by the Court and the Dickerson Court declined to do so. Justice Alito was not on the Court at this time. But Thomas was, who in dissent said that the majority’s holding gave defendant’s too much protection. I guess in Thomasland a yet to be convicted (i.e., innocent) criminal defendant shouldn’t have too many rights.
So seemingly the question of “rule” versus “right” was settled in favor of a constitutional right. Until last week (June 23, 2022).
Written by Alito, five pages are spent detailing the glory days of the prophylactic rules. Then he gets to Dickerson and after conceding that the Court held that Miranda was a constitutional rule, he basically implies that Dickerson is not analogous to the issue raised in Vega. Dickerson dealt with a striking down of a statute; Vega, on the other hand, involved the question of whether a party whose Miranda rights were violated could sue under the preexisting statute 42 U.S.C. § 1983.
In other words, one time it’s a right, another time it’s a rule! Get it? Eazy peezy. Or to paraphrase Captain Barboza in “Pirates of the Caribbean,” Miranda ain’t a rule, it’s more of a guideline.
In a week where rights were stripped from women, expanded to firearms and religion, individuals whose Miranda rights were violated no longer have the legal ability to sue for redress under 42 U.S.C. § 1983. No more will officers of the law have to fear being held liable for trampling on the constitutional rights of a suspect.
Thomas’ dissent was vindicated by Alito and the other four conservatives on the Court. All things considered, Thomas had a good week. We’ll see how good it was when we get to Bruen, up next.
For now, this Court is aggressively retracting individual rights and liberties, one case and issue at a time. It’s not like a complete haircut, it’s more like a trim, one snip at a time, until finally there’s no more hair to trim.
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