Recently, Utah law professor Paul Cassell won a huge victory that could impact the way police and prosecutors deal with arrests and confessions. In U.S. vs. Dickerson, a federal appeals court bought Cassell's argument that a criminal's voluntary confession can be used against him, even if police failed to "read him his rights."
The court's decision was based on a moribund statute, 28 U.S.C. section 3501, which Cassell has single-handedly resurrected through his tireless advocacy and persuasive scholarship. Enacted in 1968, 3501 overruled the Supreme Court's 1966 decision in Miranda vs. Arizona, which, as all fans of "Law & Order" know, requires that police give certain "warnings" to suspects in custody (you have the right to remain silent, etc.).Dickerson concerned a Maryland man who voluntarily confessed to participating in a series of armed bank robberies. A district court found that police did not read the man his rights until after he confessed, a technical violation of Miranda. Accordingly, the court ruled that the confession could not be used. On appeal, Cassell argued that the confession was admissible under 3501. The appeals court agreed.
The Dickerson court is only the second court to embrace Cassell's contention that 3501 trumps Miranda.
Within hours of its release, liberals attacked the Dickerson decision. "Liberals and defense lawyers," reported the New York Times, "said the Miranda ruling established new constitutional rights that could not be revoked by the Congress in 1968." Prominent criminal defense lawyer Larry Pozner stated: "We made a decision as a society that the ends don't justify the means . . . I think it's very frightening."
The American Civil Liberties Union's Salt Lake office suggested that police will view Dickerson "as a license to use heavy-handed tactics, carefully administered to fall just short of coercion, to extract confessions from unrepresented suspects."
And the ubiquitous Alan Dershowitz called the decision "bizarre," predicting "that you might see the Supreme Court stamp it out before it spreads."
The defenders of Miranda are simply wrong.
First, Miranda did not establish "new constitutional rights." The Supreme Court itself acknowledged in Miranda that the Constitution did not require the warnings; disclaimed any intent to create a "constitutional straightjacket;" and invited Congress and the states "to develop their own safeguards for (protecting) the privilege."
Second, our society has never made the decision that criminals who voluntarily confess should be released on technicalities. In Miranda, a divided Supreme Court set forth a controversial, judicially created rule to protect a suspect's right against self-incrimination.
Thereafter, Congress enacted 3501, which declares that confessions "shall be admissible in evidence if . . . voluntarily given." Thus, our society decided (through elected, accountable representatives) that voluntary confessions can be used at trial, irrespective of whether police give Miranda warnings.
Third, Miranda, not Dickerson, is the product of an activist court. Before Miranda, the rule governing confessions was the same for nearly 180 years: Confessions were admissible if made voluntarily. Unlike Miranda, Dickerson did not weigh the merits of requiring Miranda warnings (though it did note Cassell's voluminous scholarship on the issue). Dickerson merely followed the lead of Justice Scalia, who recently suggested that the failure to apply 3501 "may have produced . . . the acquittal and nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens."
Fourth, Dickerson does not give the police carte blanche to coerce suspects into giving confessions that are not truly voluntary. Nothing in Dickerson provides police with incentive to stop giving the familiar warnings.
Finally, Professor Dershowitz's ad hominem charge that the opinion is "bizarre" is, well, bizarre. Dickerson forcefully explains why 3501, and not Miranda, is the law of the land.
Dershowitz's prediction that the Supreme Court might "stamp it out before it spreads" sounds like whistling past the Miranda graveyard. His prediction concedes that the reasoning of Dickerson, unless extinguished by the Supreme Court, will spread to courts throughout the country.
Because of Miranda, thousands of criminals escape justice each year. Under 3501, however, criminals who voluntarily confess no longer will be freed on mere technicalities. This issue certainly will be appealed to the Supreme Court. Hopefully, the Supreme Court will adopt the reasoning of Cassell, and not give heed to the defenders of Miranda.
D. Kyle Sampson is an attorney at the Salt Lake City law firm of Parr Waddoups Brown Gee & Loveless