Contrary to The Post's Nov. 8 editorial "Miranda and the Court," the Department of Justice did not make the "right call" in urging the Supreme Court to overturn an act of Congress and, by so doing, conceal from the jury a dangerous defendant's voluntary confession.
Just about everything in the editorial is wrong. First, under both political parties, the Department of Justice has viewed itself as obligated to defend an act of Congress when any reasonable argument can be made in its behalf. This stance is necessary precisely to maintain the stability of the law that The Post's editorial elsewhere prizes. For the department to take any other position would essentially replace the rule of law with the rule of taste, as one administration would feel free to bury laws enacted in an earlier administration with a different ideological or political outlook.
Neither The Post nor the Justice Department has claimed that no reasonable argument is available in behalf of the statute that would allow the jury to hear a defendant's voluntary confession, and understandably so. In the statute's 30-year life, every court to have addressed it has upheld it. And in a Miranda-related case in 1994, the Supreme Court itself said that the statute, not Miranda, was the law "governing the admissibility of confessions in federal court."
Of course, it is true that a constitutional holding of the Supreme Court cannot be overturned by an act of Congress. But the court has made it quite clear that Miranda is not a constitutional holding. To the contrary, it has said that the Miranda rules are a "series of recommended procedural safeguards" that are "not themselves rights protected by the Constitution" and are "not constitutional in character." The court has also held that in some circumstances, voluntary confessions made in the absence of Miranda warnings can be placed in evidence. Because a confession that has been compelled in violation of the Fifth Amendment can never be used as evidence, these rulings necessarily confirm that Miranda is not a constitutional requirement.
That being the case, Congress had the authority to overturn Miranda had it chosen to do so. In fact, however, Congress only modified Miranda, preserving what is best about it while discarding its most rigid and irrational features. Under Congress's statute, the judge who determines whether a suspect's confession will be admitted must consider whether the suspect had the assistance of a lawyer during questioning and whether he was given his warnings--which (this was unmentioned in the editorial) the statute repeats practically verbatim.
The part of Miranda that the statute directly overturns is Miranda's one-size-fits-all rule that automatically excludes every unwarned confession, regardless of how clear it is that the police acted fairly and that the suspect spoke voluntarily. The statute corrects this by allowing the judge in each case to hear all the facts and then decide whether the confession should come in.
Miranda does not deserve to be exempt from improvement because it gets on TV and has "entered the public consciousness," or simply has been around a long time. Plessy v. Ferguson was around for twice as long, but we got rid of it because it was wrong. Our citizens' confidence in the criminal justice system will be strengthened by ensuring that the rules will be fair to crime victims as well as suspects; will protect the public by helping convict those who voluntarily confess their guilt; and will promote honesty and accuracy in criminal trials by allowing the jury to hear all truthful evidence.
Fairness to the defendant is important, but to toss aside every other important value will quite certainly erode, not strengthen, public confidence.
A society that beats confessions out of suspects has lost its morals. But a society that rejects a suspect's voluntarily given confession has lost its marbles. The statute now before the Supreme Court lets us keep our morals and our marbles. If the Department of Justice can't see this--if it persists in "elevating politics over law," as the court of appeals put it in a devastating criticism--then we can still hope the Supreme Court will.
The writer was chief of appeals in the U.S. Attorney's Office, where the case he discusses here arose. After the department took its position renouncing the statute that modified Miranda, he withdrew his name from the government's pleadings and resigned.