U.S. Supreme Court chipped away at Miranda, but it’s safe here in Minnesota, for now

Long hated by some on the right, Miranda could be on the block

September 7, 2022 6:00 am

The late Supreme Court Justice Earl Warren, whose court decided Miranda, was vilified by the American right, in part for respecting the constitutional rights of the accused. Postcard via Library of Congress.

In the waning days of the tumultuous 2021-22 term of the U.S. Supreme Court, a series of major rulings garnered an extraordinary amount of attention. They included abolishing the constitutional right to abortion; invalidating a New York firearms licensing law; stopping the Environmental Protection Agency from regulating greenhouse gas emissions; allowing a public high school football coach to lead his team and students in prayer on the football field after a game; and, siding with the Biden administration and dismissing an attempt by some states to enforce Trump-era immigration restrictions.  

Another important case, which was buried in the avalanche of high-profile decisions, may have significant impact on criminal law. Although perhaps less so here in Minnesota state court proceedings. 

Now, with the justices gearing up for the upcoming 2022-23 term, beginning on the traditional first Monday of October, it’s worth looking back at that largely-overlooked case with a big footprint and ponder what steps it might lead to nationally and here in Minnesota.

Criminal constriction

The case was Vega v. Tekoh, a civil rights lawsuit arising out of Los Angeles. The claimant, who had been arrested and charged with sexual assault, had made a confession to the L.A. County deputy sheriffs without being furnished the well-known “you have a right to be silent” warnings derived from the famous Arizona v. Miranda case of 1966. In that case, the Supreme Court ruled that criminal suspects held in custody must be warned that they have the right not to respond to any questions; that anything that they say might be held against them at trial; that they have the right to an attorney at all stages of the proceeding; and that an attorney will be provided to them if they cannot afford one.  

These Miranda warnings have become so well known — largely through TV cop shows, movies and literature — that the late Chief Justice William Rehnquist referred to them as being “embedded in the national culture.” He wrote that while re-affirming the Miranda ruling in 2000 in a case entitled U.S. v. Dickerson. Those admonitions were based upon the interpretation of the right against self-incrimination under the Fifth Amendment of the U.S. Constitution, tinged with the Sixth Amendment’s right to counsel.

The current composition of the Supreme Court, even since it achieved its conservative super-majority status, has done little to tinker with basic criminal law protections established by the tribunal over the years, especially during the 1953-1969 tenure of Chief Justice Earl Warren. 

But the super-majority’s knives came out to carve up and constrict those rights in the Tekoh case. The defendant there was acquitted at his trial, even though his confession was admitted. He claimed that the inculpatory remarks were coerced and, therefore, should be disregarded, which a compliant jury did. 

Following his acquittal, he brought a civil lawsuit against the law enforcement officers and the county under the federal Civil Rights Act, which authorizes civil lawsuits for violations of constitutional rights by public sector workers and their employers. 

A jury found for Vega, but the U.S. Court of Appeals for the Ninth Circuit vacated the verdict. The case then reached the Supreme Court, which ruled the acquitted claimant could not pursue damages for the undisputed Miranda violation.

The Supreme Court — in another one of those familiar 6-3 conservative/liberal split votes — reasoned that the Miranda requirement may stem from the Fifth Amendment, but is merely a “rule” established by the Warren Court to effectuate the right against self-incrimination. It is not, however, a constitutional mandate. 

To the chagrin of many progressives, the Biden administration joined law enforcement and county defendants in rebuffing the extension of Miranda to the civil realm, and it got what it wanted — and maybe more than it bargained for in the process.

The obvious implication: Any “rule” can easily be changed at the whim of a majority of the justices. Chief Justice John Roberts made a silly remark at his 2006 confirmation hearing, in which he equated judges with “umpires calling balls and strikes”; in reality, as the rule-makers, judges often set the strike zone. And, in this case, the claimant struck out. 

The court, of course, can change its constitutional interpretation, as it did in the abortion case, Dobbs v. Jackson Women’s Health, and a few other recent reversals of precedent. 

But now that the justices have scaled back Miranda to a transitory “rule” — not a binding requirement — the opportunity exists for the tribunal to view the original Miranda case as having been “egregiously wrong” and discard it altogether, invoking the same dismissive terminology that they used to abrogate abortion rights in the Dobbs case.

But that may only be the beginning once the super-majority jurists turn their attention to criminal law precedent, which has largely remained intact even as the Robert’s tribunal undermines other fundamental rights. 

Disemboweling Miranda claims in civil lawsuits may be an incremental but hugely consequential step towards weakening it in criminal cases, too. 

They also may decide to discard other well-entrenched obligations than just Miranda warnings. Such as the requirement to disclose all exculpatory evidence to criminal defendants and their attorneys; unanimity of jurors; proof beyond a reasonable doubt; and a host of other matters that would impinge on the rights of the accused.

Minnesota Matters

Thankfully, constricting or even eliminating Miranda at the federal level may not have much impact in Minnesota, at least in state court proceedings, which comprise the vast majority of criminal matters.

The judiciary here has followed the Miranda precedent, while usually rejecting Miranda challenges by criminal defendants.

But the state Supreme Court stepped into the fray in 1994 in a case entitled State v. Scales, mandating  compliance with a prior state law requiring that interrogations of a person in custody be recorded, and that the recordings be preserved.            

Unrecorded statements cannot be used in evidence, and if the omission is deemed “substantial” it can lead to a possible dismissal of criminal charges.

The Scales tenet, based upon the court’s supervisorial authority over the judiciary, gives criminal law attorneys and, more importantly, their clients, more protection in Minnesota than they have under existing and prospective federal law.

Comedian Jerry Seinfeld wondered in one of his riffs: Why do they still have to read that whole Miranda warning? “Is there anybody who doesn’t know that by now?” 

If the radical majority on the high court gets its way and guts that doctrine, too, our rote, TV-influenced memory of Miranda may go the way of the multi-camera network sitcom.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.