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‘Popular culture’ won out in Miranda

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"Spin control" can make a world of difference. When controversial subjects roll across the landscape like thunderstorms, showering us briefly with official pronouncements and the scattered lightning of critics before blowing off the front page to make room for the next disturbance, we judge things quickly based on how they are presented to us.

Ask anyone on the street if they think cops should be required to read people their rights. Chances are, they will say yes, of course. That's as American as having the referee's explanation of a penalty broadcast through stadium loudspeakers.

But ask that same person if he or she thinks it's OK to let killers go free because some cop skipped a word when reading those rights, and you'll get a different answer.

Unfortunately for University of Utah law professor Paul Cassell, law enforcement agencies and, ultimately, all Americans, the first question was asked a lot more than the second one in the recent Supreme Court case, in which seven of nine justices decided the Miranda warnings should continue to be treated as something close to a constitutional right.

Of course, the court isn't supposed to care about public opinion. In this case, it was to decide one thing and one thing only: whether the Miranda rules are required by the Fifth Amendment to the Constitution or whether Congress has the power to change, modify or even do away with them.

They managed to dance around that one a bit. But it was clear that public opinion played a role in their decision. The majority opinion, written by Chief Justice William Rehnquist, contained this curious phrase: "We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."

National culture? Was he referring to police television dramas such as "NYPD Blue," or any of its predecessors dating back 30 years to "Hawaii Five-O"? Miranda has been repeated so many times in movies and on television that most Americans can recite it better than the 10 Commandments.

But what does this mean? If the Supreme Court drafts a catchy set of rules, and if enough Hollywood scriptwriters take those rules and make them part of the popular lexicon, do those rules then achieve a sort of constitutional status? Why were the Founding Fathers so lacking in insight that they didn't see this as a viable way to amend the Constitution?

The court stopped short of making Miranda an official part of the Constitution, but the seven justices in the majority made it very clear, in an otherwise very confusing ruling, that Miranda is to be rigidly and word-for-word considered a part of any police interrogation, and that, as in anything considered part of the Constitution, Congress couldn't pass a law to the contrary.

This case came to the court because witnesses saw a man getting into an Oldsmobile Ciera after robbing a NationsBank branch of $876 in Virginia. According to a description in an American Bar Association review of the case, FBI agents traced the car to a man named Charles Dickerson. He didn't confess to anything, but he nervously told agents he had been driving with his friend, James Rochester, on the day of the robbery and had stopped nearby to buy a bagel. As he later drove away, he said, James acted in a way that made Dickerson suspect he had robbed the bank while he, supposedly, had been next door innocently deciding between plain and sesame seed.

This statement was thrown out of court because, at the time, the FBI agents had not yet read Dickerson his rights. Evidence found at his apartment also was suppressed.

Cassell has spent the past 13 years studying Miranda and the last seven years litigating this case. As Miranda nightmares go, this one was rather tame, he told me this week. Back in the 1970s, an officer told a murderer anything he said could be used " 'For' or against you in a court of law." Because he added that extra word, the killer went free. "My statistics suggest that hundreds of thousands of cases go unsolved" because of the Miranda technicality, he said.

Cassell said all he wanted was some flexibility. He understands that the rights of suspects must be protected, but he doesn't think the exact letter-perfect wording of Miranda should be sacrosanct, especially in an age where, because of "popular culture," virtually everyone understands the rights anyway. Why not, he asks, allow police departments to videotape all interrogations? That technology was unavailable when the Miranda decision originally was drafted in 1966, and it would protect suspects from coerced confessions.

Ah, but it wouldn't add much drama to a good police show.


Deseret News editorial page editor Jay Evensen may be

e-mailed at: even@desnews.com