Death by a Thousand Cuts: Miranda and the Supreme Court’s 2009-10 Term

By Anthony J. Franze *


A leading Miranda scholar recently concluded that “[t]he best evidence now shows that, as a protective device, Miranda is largely dead. It is time to ‘pronounce the body,’ as they say on television, and move on.”[1] And that was beforethe Supreme Court’s 2009–10 term.

In a trilogy of decisions from that term,[2] the Court eviscerated Miranda safeguards, reversed state and federal decisions finding violations ofMiranda, and, in the view of dissenting justices, “turn[ed] Miranda upside down.”[3] As an attorney for the National Association of Criminal Defense Lawyers lamented, “[a]t this rate, what’s left of Miranda will be only what we see on TV.”[4]

In this essay, I analyze the Court’s Miranda decisions from the 2009–10 term. Part I provides an overview of the three cases, highlighting how the Court narrowed longstanding interpretations of Miranda in each case. Part II discusses the implications of the decisions. I show that the Court created new rules that make it harder for suspects to assert their rights while making it easier for police to question suspects without the presence of counsel and for prosecutors to introduce inculpatory statements into evidence. I also consider the potential impact on police interrogation tactics and what the new decisions suggest about the future of Miranda given the current composition of the Court. Regrettably, my conclusion echoes prior assessments of the state of Miranda.[5] That is, although the Court has not overturned Miranda, it has whittled away at the decision bit by bit, transforming a bold effort to protect suspects’ constitutional rights into a hollow ritual. In many ways, I conclude, that is a fate worse than death.

I. Three for the Prosecution

A. Florida v. Powell

In its first Miranda decision of the 2009–10 term, Florida v. Powell,[6] the Supreme Court addressed the substance of Miranda warnings. The Court held that a pre-printed Miranda warning form used by the Tampa police department—while “not the clearest possible formulation of Miranda’s right-to-counsel advisement”[7]—was essentially good enough. By finding a less-than-clear warning sufficient, the Court quietly displaced Miranda’s explicit directive that suspects must “be clearly informed” of their rights in “clear and unequivocal terms.”[8]

1. The Interrogation of Mr. Powell

The case arose from the interrogation of Kevin Powell, who was arrested after police found a handgun in his girlfriend’s apartment upon going there to question Powell in connection with a robbery investigation.[9] At the police station, officers read Powell the following warnings from a standard Tampa police department Miranda form:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.[10]

The warning form did not state that Powell had the right to have counsel present with him during the interrogation, but rather, that he could “talk to” an attorney “before answering any of our questions.” Powell testified that he signed the form and said the gun was his only after police threatened to charge his girlfriend and have her young children taken away by social services.[11] At trial, Powell’s inculpatory statement was the only evidence linking him to the gun. He was convicted of unlawful possession of a firearm and sentenced to ten years in prison.[12]

The Florida Supreme Court reversed the conviction, holding that the form used by the Tampa police was defective because the language—“You have the right to talk to a lawyer before answering any of our questions”—failed to satisfy Miranda’s requirement that police clearly advise suspects of the right to have a lawyer present during questioning.[13] Like numerous lower courts that had construed comparable Miranda warnings,[14] the Florida high court found that “[t]he ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.”[15]

2. The Supreme Court’s New Warning Standard

In a 7–2 decision written by Justice Ruth Bader Ginsburg,[16] the Supreme Court reversed, finding the less-than-clear warning sufficient under Miranda. The Court acknowledged Miranda’s requirement that “an individual held for questioning ‘must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.’”[17] Nevertheless, the Court found that the warnings given Powell, while “not the clearest possible formulation,” were “sufficiently comprehensive and comprehensible when given a commonsense reading.”[18]

The majority relied primarily on the last sentence of the warning form, which stated: “You have the right to use any of these rights at any time you want during this interview.”[19] The Florida Supreme Court had concluded that “[t]his last sentence could not effectively convey a right the defendant was never told he had. In other words, how can a defendant exercise at any time during an interrogation a right he did not know existed?”[20] Justice Ginsburg, however, disagreed. Parsing the text of the warning form, she wrote that “n combination, the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.”[21]

The majority rejected the risk―identified by Powell and severalamici, including Miranda scholar Professor Richard Leo[22]―that if the Court allowed such unclear warnings to stand, law enforcement agencies would be tempted “to end-run Miranda by amending their warnings to introduce ambiguity.”[23] Rather, citing only an amicus brief submitted by the United States, the Court found that police would have “little reason to assume the litigation risk of experimenting with novel Mirandaformulations.”[24] At the same time, the Court declined to adopt any bright-line formulation of Mirandawarnings to prevent or deter police from doing so.[25]

Justice John Paul Stevens, joined in part by Justice Stephen Breyer,[26] dissented, finding the majority’s analysis “unpersuasive” and arguing that the Florida Supreme Court had “the better view on the merits.”[27] The Tampa warning, Stevens concluded, “if given its natural reading, entirely omitted an essential element of a suspect’s rights”: the right to have counsel present during interrogation.[28]

B. Maryland v. Shatzer

The day after it decided Powell, the Supreme Court issued its decision in Maryland v. Shatzer,[29] which addressed the rules governing police re-interrogation of a suspect who previously asserted his Mirandarights. Nearly thirty years ago, the Court in Edwards v. Arizona[30] held that once a suspect invokes hisMiranda right to counsel,any further responses to police-initiated questioning without the presence of counsel are presumed involuntary and inadmissible.[31] In Shatzer, the Court retreated from the Edwardspresumption of involuntariness when there is a “break in custody” of the suspect lasting more than fourteen days between the first and second attempts at interrogation.[32]

1. The Interrogation of Mr. Shatzer

The case arose out of multiple police interrogations of Michael Shatzer―who at the time was incarcerated for a child sexual abuse offense―concerning unrelated allegations that he had sexually abused his son. In the first interrogation, Shatzer invoked his Miranda rights and declined to speak without an attorney present. The interrogation ended and Shatzer was released back into the general prison population.[33]

Two and a half years later, while Shatzer remained incarcerated, police reopened the investigation and, despite Shatzer’s prior invocation of Miranda, questioned him without an attorney present. A detective read Shatzer his Miranda rights and obtained a written waiver on a standard form. During the interrogation and a polygraph examination taken a few days later, Shatzer made inculpatory statements. The state charged him with child sexual abuse of his son, and after denying motions to suppress, the trial court found him guilty. The Maryland Court of Appeals reversed the conviction under Edwards.[34]

2. The New Fourteen-Day and Prison-Is-Not-Custody Rules

The Supreme Court reversed the Maryland high court.[35] In a unanimous judgment and 7–2 opinion written by Justice Antonin Scalia,[36] the Court held that the Edwards restriction on re-interrogation no longer applies after a break in custody lasting longer than fourteen days.[37] The Court further concluded that Shatzer’s return to the general prison population, after he had invoked his right under Miranda not to speak without counsel present, constituted such a break in custody.[38]

First, the Court held that because the Edwards rule is a “judicially prescribed prophylaxis,” it could not be expanded without justification.[39] Justice Scalia examined the costs and benefits of Edwards and found no such justification.[40] He explained that in the paradigmatic Edwards situation―in which the “suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated”―there is a risk of police badgering a suspect to abandon an earlier refusal to submit to interrogation without counsel present.[41] But when a suspect has been released from custody and has returned to his normal life for a sufficient duration, “there is little reason to think that his change of heart regarding interrogation without counsel has been coerced.”[42] Thus, the “[u]ncritical extension of Edwards” would have minimal benefits, while the “costs” would include courts excluding voluntary confessions and police not even trying to obtain voluntary confessions.[43]

As for the “duration” needed for a break in custody to dissipate the coercive effects of the initial interrogation, the Court found a case-by-case approach impractical because “law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.”[44] In a move Justice Scalia acknowledged was “unusual,” the majority picked a specific time period, fourteen days from release, after which police can renew their questioning. That period, Scalia reasoned, “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”[45]

Second, the Court addressed whether release into the general prison population could constitute a break in custody for Miranda purposes.[46] The Court found that “lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda.”[47] Justice Scalia reasoned that “suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine―they regain the degree of control they had over their lives prior to the interrogation.”[48] The Court found that Shatzer’s life in a medium security facility lacked the inherently compelling pressures of custodial interrogation. As such, Shatzer’s release into the prison population was a break in custody and, therefore, the Edwards presumption did not apply.[49]

Justice Stevens and Justice Clarence Thomas separately concurred in the judgment.[50] Both disagreed with the fourteen-day rule, but for different reasons. Stevens found the blanket rule too rigid, while Thomas argued that it was an unjustified expansion of Edwards.[51] Thomas joined the majority’s prison-is-not-custody holding, but Stevens found that it ignored the realities of prison.[52] In addition, Stevens found that both rules created incentives for aggressive police interrogation practices, such as police engaging in catch-and-release tactics with the intent of seriatim interrogations until the suspect spoke without counsel present.[53]

C. Berghuis v. Thompkins

On June 1, 2010, the Court issued its third and most contentious Miranda decision of the term, Berghuis v. Thompkins.[54] In a 5–4 decision, the majority held that suspects must affirmatively and unambiguously speak to invoke their right to remain silent and that suspects may implicitly waive theirMiranda rights by answering a single question after hours of uninterrupted interrogation.[55]

1. The Interrogation of Mr. Thompkins

The case arose out of the interrogation of Van Chester Thompkins, whom police suspected of murder in a shooting outside a mall in Southfield, Michigan. Two officers interrogated Thompkins for about three hours in an eight-by-ten foot room. The officers began the interrogation by presenting Thompkins with aMiranda form. One of the officers read the form aloud and then had Thompkins read a portion of the form aloud to confirm that he could read and understand English. The officers then asked Thompkins to sign the form to demonstrate he understood his rights, and Thompkins refused.[56]

Thompkins remained mostly silent during questioning.[57] “He did give a few limited verbal responses, however, such as ‘yeah,’ or ‘no,’ or ‘I don’t know.’ And on occasion he communicated by nodding his head.”[58] Nearly three hours into the interrogation, an officer asked Thompkins if he believed in God and whether he “‘pray[ed] to God to forgive you for shooting that boy down?’” Thompkins “answered ‘Yes’ and looked away.” He thereafter refused to make a written confession, and the interrogation ended about fifteen minutes later.[59]

Thompkins was charged with first degree murder, the State used his statement against him at trial, and he ultimately was found guilty and sentenced to life in prison without parole.[60] Addressing Thompkins’s habeas corpus application, the Sixth Circuit threw out the conviction, concluding that his “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.”[61]

2. The New Waiver and Clear Statement Rules

In a 5–4 decision written by Justice Anthony Kennedy,[62] the Court reversed the Sixth Circuit and reinstated Thompkins’s conviction.[63] First, the majority held that to invoke the right to remain silent, an accused must do so unambiguously.[64] Justice Kennedy noted that the Court has long held that to invoke the right to counsel under Miranda, a suspect must do so “unambiguously.”[65] A fortiori, Kennedy found, “there is no principled reason to adopt different standards for determining when an accused has invoked his Miranda right to remain silent.”[66] Kennedy wrote that there was “good reason” for the rule: “If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused person’s unclear intent and face the consequences of suppression ‘if they guess wrong.’”[67] Thompkins could have said he wanted to remain silent or that he did not want to speak with the police, but he did not make “either of these simple, unambiguous statements” and therefore failed to invoke his right to remain silent.[68]

Second, Justice Kennedy recognized that even absent an invocation of the right to remain silent, a suspect’s statement is inadmissible unless the prosecution establishes that the suspect “knowingly and voluntarily” waived his or her Miranda rights.[69] The Court held that Thompkins―despite spending most of the three-hour interrogation in silence and refusing to sign the Miranda form―had implicitly waived his rights.[70] The majority acknowledged that “[s]ome language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement,” but found that decisions since Miranda reflected a more relaxed standard.[71] No “formalistic waiver procedure” is required and an “implicit waiver” of the right to remain silent is sufficient. In short, “[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”[72]

Under this relaxed standard, the Court found that Thompkins understood his rights because the Mirandaform was given and read to him and he read a portion back to the officers, confirming he could read and understand English.[73] Answering the officer’s questions, even after saying next to nothing for nearly three hours in the face of consistent police questioning, itself was a “course of conduct indicating a waiver.”[74] Justice Kennedy also reasoned that “there is no authority for the proposition that an interrogation of this length is inherently coercive.”[75] Nor did the record show coercive conduct by the police, such as threats, food or sleep deprivation, or that Thompkins was in fear.[76]

Justice Sonia Sotomayor, joined by Justices Stevens, Ginsburg, and Breyer, wrote a vigorous dissent.[77] She found the majority decision “turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent―which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.” Those results, Sotomayor concluded, “find no basis in Mirandaor our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.[78]

II. Miranda “Upside Down”: Observations and Implications

A. Where We Are

Before the 2009–10 term, many who have studied Miranda and police interrogation practices had questioned Miranda’s utility as a protective device.[79] Those views find further support in Powell,Shatzer, and Berghuis. Consider the new rules resulting from these decisions: the police can take an individual into custody, read him an ambiguous Miranda warning, and then question him for hours without a lawyer present. If the suspect does not speak up and unambiguously invoke his right to counsel or right to remain silent, police can persistently question him and use even a single, terse, one-word response after hours of questioning as an implicit knowing and voluntary waiver of his rights. If, by chance, the suspect unambiguously invokes his rights, the police can release him for fourteen days and then pick him up on day fifteen to begin the entire interrogation process anew.

It is no surprise, then, that many have questioned whether these decisions have “decimated Miranda[80] or “finally dealt Miranda a death blow.”[81] To be sure, the Court did not overturn Miranda. But the Court’s recent jurisprudence certainly has done little to counter views that Miranda has gone from a rule designed to protect suspects to one that protects the police. To borrow from Justice Sotomayor’s Berghuisdissent, the new rules “turn[] Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore[] the important interests Miranda safeguards,” and “bode[] poorly for the fundamental principles that Miranda protects.”[82]

B. How We Got Here

While this essay will not undertake the historical, ideological, or theoretical reasons for Miranda’s transformation over the years, it is safe to say that the 2009–10 term decisions were possible only through a narrow interpretation of the landmark 1966 decision. In Powell, for instance, the Court essentially permitted ambiguous Miranda warnings, notwithstanding that Miranda itself repeatedly held that suspects must “be clearly informed”[83] of their rights in “clear and unequivocal terms”[84] and that “only by effective and express explanation”[85] of the rights can there be assurance that the accused was in a position to exercise them. Indeed, the Court in Powell allowed police to use a warning that omitted the suspect’s right to have counsel present during interrogation, even though Miranda and later decisions explicitly stated that “an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . .”[86]

As for Shatzer, Justice Stevens’s assessment that the majority was “insufficiently sensitive to the concerns that motivated the Edwards line of cases”[87] was an understatement. That Justice Scalia would circumscribe Miranda and Edwards is consistent with his prior appraisal of those decisions. Justice Scalia previously has argued that Miranda is “a milestone of judicial overreaching” that should be overruled[88] and has described the Edwards line of cases as “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”[89] Ironically, Justice Scalia’s fourteen-day rule in Shatzer resembles the “Court-made code” he found offensive about Miranda.[90] His majority opinion in Shatzer may be, as Professor Orin Kerr surmised, the result of an “if you can’t beat ’em, join ’em” approach[91]―one that forgoes dissenting opinions rejecting prophylaxis rules outright in favor of majority decisions that remove their teeth.

For its part, Berghuis is the most striking example of the Court essentially rewriting Miranda. Justice Sotomayor’s dissent correctly noted that “[r]arely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case.”[92] She quoted Miranda and other decisions establishing that “the fact of a ‘lengthy interrogation’ prior to obtaining statements is ‘strong evidence’ against a finding of valid waiver; ‘mere silence’ in response to questioning is ‘not enough’; and waiver may not be presumed ‘simply from the fact that a confession was in fact eventually obtained.’”[93] Contrary to these cases, the Berghuis majority found an implicit waiver after a lengthy interrogation where the accused sat mostly silent, but uttered a few inculpatory words.

While it is hard to miss the retreat from precedent reflected in each of the decisions, it takes a closer look to notice a disquieting doctrinal inconsistency. For instance, whereas Powell permits police to give the accused an ambiguous warning, Berghuis requires the accused to speak “unambiguously” with lawyer-like clarity to invoke the right to remain silent, creating an untenable double standard.[94]

Another example of inconsistency concerns the Court’s approach to bright-line rules. Whereas the majority justified the fourteen-day rule in Shatzer and the requirement of an “unequivocal” invocation of the right to remain silent in Berghuis based on the need to provide clear guidance to police, the Court eschewed any bright-line in Powell when it declined to set a precise formulation police must use when advising suspects of their Miranda rights.[95]

A subtler doctrinal inconsistency can be seen in the Court’s views on the coercive nature of custodial interrogation. In Shatzer,the majority found that prison is not “custody” for Miranda purposes because imprisonment does not impose the highly “coercive pressures” inherent in a custodial interrogation.[96] In Berghuis, however, the majority downplayed the inherently coercive environment of a custodial interrogation by stating that suspects can easily assert their rights unequivocally and suggesting that coercion exists only when there are overt acts of coercion, like threats of violence or deprivation of food or sleep.[97]

C. The Road Ahead

So what do the 2009–10 term decisions say about the future of Miranda? As a practical matter, the decisions could lead to more aggressive police interrogation tactics. The social science literature onMiranda indicates that law enforcement agencies “have developed multiple strategies to avoid, circumvent, nullify, and sometimes violate Miranda and its invocation rules in their pursuit of confession evidence.”[98] Nevertheless, the majorities in Powell, Shatzer, and Berghuis all but ignored the risks that police would misuse the new rules. In Powell, for example, Professor Leo warned in an amicusbrief that if the Court approved the ambiguous warning given to Powell, it would “create incentives for law enforcement nationwide to experiment with the Miranda warnings . . . to change the standard Mirandaformulation in an effort to dilute the warning. Indeed, the history of Miranda demonstrates that some law enforcement agencies and officials will seek to do just that.”[99] The majority not only ignored the risk, it presumed the opposite—that law enforcement agencies would want to make warnings as clear as possible to avoid litigation.[100] Arguably, portions of the Powell decision itself may offset incentives to water down warnings. Justice Ginsburg was effusive in her praise of the FBI’s standard warning as “exemplary” and “admirably informative,”[101] such that law enforcement agencies may be inclined to adopt the FBI’s more clear formulation as “litigation proof” because it now has been blessed by the high court.

Similarly, in Shatzer, Justice Stevens’s concurring opinion raised red flags about the potential for police abuse of the new rules, which the majority brushed aside. Justice Stevens noted that the new rules give incentives for police to engage in the catch-and-release tactics of letting a suspect go with the intention of picking him up again for questioning fourteen days later.[102] Stevens further argued that the prison-is-not-custody rule presents the risk that police, knowing the suspect is locked up, will simply “bide their time, interrogating and reinterrogating their suspect until he slips up.”[103] And in Berghuis, in the face of obvious risks that police will use the decision as license to unfettered lengthy questioning of an accused who sits silent, the Court’s response was to downplay the pressures of custodial interrogation and suggest that suspects can make a “simple” assertion of their right to remain silent or to counsel.[104]

Beyond their potential influence on police interrogation practices, the 2009–10 term decisions suggest more of the same from the Court in the future. Both Powell and Shatzer had seven-justice majorities.[105] And while Berghuis was a 5–4 decision, one of the dissenters was now-retired Justice Stevens. Stevens in fact was the only justice who disagreed with the majority in all three cases, authoring the dissenting and concurring opinions in Powell and Shatzer, respectively, and joining Justice Sotomayor’s dissenting opinion in Berghuis.

With Stevens’s retirement, the Court lost one of its “foremost defenders of Miranda-related rights.”[106] In a forthcoming article, Professor Christopher Smith conducts an impressive comparative analysis of the Court’s Miranda jurisprudence and concludes that Justice Stevens’s opinions, more than any other justice’s, reflect a “sensitivity to the risks of deceptive and abusive practices by law enforcement officials and strong beliefs about the essential role of defense attorneys in the American adversarial system of justice.”[107] Those strong beliefs were on display in the 2009-10 term. From his practical view inPowell that, at minimum, when Miranda said a warning must be clear, that is what it meant;[108] to his concerns in Shatzer about the Court’s lack of sensitivity to the underlying motivations of the Edwardsrule and the troubling incentives for police abuse created by the new fourteen-day rule;[109] to joining Justice Sotomayor’s powerful rebuke in Berghuis, Justice Stevens approached each issue mindful of the real-world implications of the Court’s decisions and the inability of the average criminal suspect to navigate the justice system without the assistance of counsel.

Whether Justice Elena Kagan will share any of Stevens’s views on Miranda is unclear. Professor Charles Weisselberg has argued that Justice Kagan “was complicit in Miranda’s demise,”[110] because as Solicitor General her office filed an “aggressive” brief in Berghuis that reflected “no understanding of modern police interrogation tactics or that suspects—who are in a position of powerlessness during an interrogation—may have difficulty asserting their rights or using precise language to do so.”[111] Others, however, have expressed concern that Kagan is a Miranda sympathizer.[112] During the Senate confirmation process, for instance, Senator Jeff Sessions submitted written questions to Kagan concerning a certiorari memorandum she had written as a law clerk to Justice Thurgood Marshall. There, Kagan suggested that a Ninth Circuit decision upholding the admission of physical evidence derived from statements obtained in violation of Miranda was a “disservice to the Miranda rule” and opined that “t seems to me likely that this Court would use this case to curtail even further the scope and meaningfulness of Miranda protections.”[113] Senator Sessions’s written questions pointedly asked, “[w]hat was the ‘disservice’ you thought was done to Miranda?” and “[w]hat did you fear the Court would do to ‘curtail’ the ‘scope and meaningfulness’ of Miranda?[114]

To be sure, while Justice Kagan was Solicitor General her office filed amicus briefs in not just Berghuis, but all three of the 2009–10 term Miranda cases, each arguing that the lower courts had erred in finding Miranda violations.[115] But those briefs were filed on behalf of the United States, and I do not think personal views can be meaningfully gleaned from positions a lawyer takes on behalf of a client. Similarly, I do not think that memos drafted over two decades ago to a boss Justice Kagan knew was a Miranda supporter say much about her personal views today. One could imagine Justice Kagan in the future, strolling the marble halls of the high court contemplating a Miranda case, allowing her thoughts to stray to Marshall, but those tea leaves are of little value to any accurate assessment of her views on Miranda.

As for the other justices, that Justice Ginsburg wrote the majority opinion in Powell or Justices Ginsburg and Breyer joined the majority in Shatzer may have been surprising to some. It may be that Powellcarried a 7–2 majority based on the view that the decision was narrow; the Miranda form used by Tampa police was unlike the more precise warning forms used by nearly all law enforcement agencies nationwide.[116] As for Shatzer, its peculiar facts—the second interrogation took place more than two years after the initial questioning and the defendant signed a Miranda waiver form—likely helped secure the majority.

In any event, the justice who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence may be Justice Sotomayor. Granted, she joined the majorities in Powell and Shatzer, so the early signals were that her years as a prosecutor and judge may have left her no friend of Miranda. But it is those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda. In the end, however, it may not matter whether Justices Kagan and Sotomayor turn out to be strong Miranda advocates—their votes would not be enough to overcome the majorities in Powell, Shatzer, or Berghuis or future cases like them.

Notwithstanding this grim assessment of Miranda’s future, I do see one ray of hope: the controversy surrounding the three decisions may prompt litigants and state courts to focus more vigorously on state constitutional protections of Miranda rights. In Powell, the Court noted that “[n]othing in our decision today, we emphasize, trenches on the Florida Supreme Court’s authority to impose, based on the State’s Constitution, any additional protections against coerced confessions it deems appropriate.”[117] Indeed, the Florida Supreme Court held that the warning given Powell violated both Miranda and the Florida Constitution.[118] After the 2009–10 term, state courts may be more inclined to rely less on Miranda and more on their own rules that often closely resemble the Miranda of 1966.

Finally, there is one thing I can predict with some certainty about Miranda’s future: it will remain a hot-button issue. That is particularly the case in the political sphere. Amidst all the criticisms that the Court had decimated Miranda, for instance, the Obama administration did not back down from its May 2010 announcement that it would push for Congress to enact a broad “public safety” exception to Mirandaallowing investigators to interrogate terrorism suspects without informing them of their rights .[119] Likewise, even after Berghuis, Senators during the confirmation process appeared concerned that Justice Kagan supported Miranda rights.[120] Regardless of whether it has lost its force, then, Mirandaassuredly will maintain its title as one of the Supreme Court’s most controversial decisions.


A decade ago the Supreme Court found an insufficient “justification for overruling Miranda. Mirandahas become embedded in routine police practice to the point where the warnings have become part of our national culture.”[121] Powell, Shatzer, and Berghuis reaffirm that the Court will not overrule Mirandain a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts.

* The author is a member of Arnold & Porter LLP’s Appellate and Supreme Court practice. He was co-counsel for the defendant in Florida v. Powell, 130 S. Ct. 1195 (2010), one of the Miranda cases discussed in this essay. The author would like to thank R. Stanton Jones, Sheila B. Scheuerman, and Ben Wallfisch for their comments on earlier drafts. The views expressed herein are those of the author alone and not Arnold & Porter LLP or any of the firm’s clients.

[1] Charles D. Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1521, 1521 (2008).

[2] Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), available from the Supreme Court; Maryland v. Shatzer, 130 S. Ct. 1213 (2010), available from the Supreme Court; Florida v. Powell, 130 S. Ct. 1195 (2010), available from the Supreme Court.

[3] Berghuis, 130 S. Ct. at 2278 (Sotomayor, J., dissenting).

[4] Tony Mauro, Miranda Dealt One-Two Punch by High Court, Nat’l L.J., Feb. 24, 2010 (quoting Jeffrey Green (quotation alterations omitted).

[5] See, e.g., Weisselberg, supra note 1; see also infra sources cited notes 95-96, 104.

[6] 130 S. Ct. 1195 (2010).

[7] Id. at 1205 (emphasis in original).

[8] Miranda v. Arizona, 384 U.S. 436, 467–68, 471 (1966), available from the Legal Information Institute.

[9] Powell, 130 S. Ct. at 1200.

[10] Id. (quoting Tampa Police Department Consent and Release Form 310).

[11] See Brief for Respondent at 5–6, Powell, 130 S. Ct. 1195 (No. 08-1175) (discussing trial record), available from the American Bar Association.

[12] Id. at 7; accord Powell, 130 S. Ct. at 1200.

[13] Powell, 130 S. Ct. at 1201.

[14] See Brief for Respondent, supra note 11, at 28–33, 52 (discussing numerous Florida and federal cases rejecting comparable warnings as deficient under Miranda).

[15] State v. Powell, 998 So. 2d 531, 541 (Fla. 2008), rev’d, 130 S. Ct. 1195.

[16] Justice Ginsburg’s opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor. Powell, 130 S. Ct. at 1199.

[17] Id. at 1203 (quoting Miranda, 384 U.S. at 471).

[18] Id. at 1205.

[19] Id. at 1200.

[20] Powell, 998 So. 2d at 541.

[21] Powell, 130 S. Ct. at 1205.

[22] See generally Brief for Professor Richard A. Leo as Amicus Curiae in Support of Respondent at 13–19, Powell, 130 S. Ct. 1195 (No. 08-1175), available from the American Bar Association.

[23] Powell, 130 S. Ct. at 1206.

[24] Id. (quoting Brief for the United States as Amicus Curiae Supporting Petitioner at 6, Powell, 130 S. Ct. 1195 (No. 08-1175), available at the American Bar Association).

[25] Id.

[26] Justice Breyer joined the part of the majority decision addressing a separate issue raised by the defendant: whether the Supreme Court lacked jurisdiction to hear the case because the Florida Supreme Court’s decision rested on an adequate and independent state law ground. Id. at 1199. Justice Stevens authored the dissenting opinion, which disagreed with the majority on both the jurisdiction and Miranda issues. Justice Breyer joined the dissenting opinion on only the Miranda issue. Id.

[27] Powell, 130 S. Ct. at 1206, 1210 (Stevens, J., dissenting).

[28] Id. at 1210–11.

[29] 130 S. Ct. 1213 (2010).

[30] 451 U.S. 477 (1981).

[31] Id. at 484–85.

[32] 130 S. Ct. at 1222–23.

[33] Id. at 1217.

[34] Id. at 1217–18.

[35] Id. at 1227.

[36] Justice Scalia’s opinion was joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor. Id. at 1217.Justice Thomas joined in part and wrote an opinion concurring in part and concurring in the judgment. Id. Justice Stevens wrote an opinion concurring in the judgment.Id.

[37] Id. at 1223.

[38] Id. at 1225.

[39] Id. at 1220.

[40] Id. at 1220–24.

[41] Id. at 1220.

[42] Id. at 1221.

[43] Id. at 1221–22.

[44] Id. at 1222–23.

[45] Id. at 1223.

[46] Id. at 1224–26.

[47] Id. at 1224.

[48] Id.

[49] Id. at 1225.

[50] Justice Stevens concurred in the judgment because he “agree[d] that the presumption from Edwards . . . is not ‘eternal’” and that the two and a half years between Shatzer’s first and second interrogations was a sufficient break to end the presumption. Id. at 1228, 1234 (Stevens, J., concurring in the judgment) (citations omitted). Justice Thomas joined the part of the Court’s opinion that held the release into the general prison population constitutes a break in custody. 1227(Thomas, J., concurring in part and concurring in the judgment).Thomas did not join the Court’s decision “to extend the presumption of involuntariness” established in Edwards because he felt it was an unwarranted expansion of Edwards. Id.

[51] Id. at 1227–28 (Thomas, J., concurring in part and concurring in the judgment); id. at 1228–34 (Stevens, J., concurring in the judgment).

[52] Id. at 1227 (Thomas, J., concurring in part and concurring in the judgment); id. at 1233 (Stevens, J., concurring in the judgment).

[53] Id. at 1231 n.10, 1233 n.13 (Stevens, J., concurring in the judgment).

[54] 130 S. Ct. 2250 (2010).

[55] Id. at 2259–65.

[56] Id. at 2256.

[57] Id.

[58] Id. at 2256–57.

[59] Id. at 2257.

[60] Id. at 2257–58.

[61] Id. at 2258–59 (quoting the lower court).

[62] Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined the majority opinion. Justice Sotomoyor, joined by Justices Stevens, Ginsburg, and Breyer, dissented. Id. at 2255.

[63] Id. at 2265.

[64] Id. at 2260.

[65] Id. (discussing Davis v. United States, 512 U.S. 452 (1994),

[66] Id.

[67] Id. (quoting Davis, 512 U.S. at 461).

[68] Id.

[69] Id.

[70] Id. at 2262–63.

[71] Id. at 2260–61.

[72] Id. at 2262.

[73] Id.

[74] Id. at 2263.

[75] Id.

[76] Id.

[77] Id. at 2266–78 (Sotomayor, J., dissenting).

[78] Id. at 2278.

[79] See, e.g., Weisselberg, supra note 1; see also Brief for Professor Richard A. Leo as Amicus Curiae,supra note 22.

[80] Adam Cohen, Has the Supreme Court Decimated Miranda?, Time, June 3, 2010, (discussing Berghuis); accord Mauro, supra note 4 (discussing Powell and Shatzer). But not everyone has concluded that these decisions decimated Miranda. See Brooks Holland, Commentary: How the Court Retooled Miranda, Nat’l L.J., July 14, 2010, (discussing the Cohen article and other assessments and noting that the Court narrowed Miranda but that “justices who have criticized Miranda in the past applied the rule this term, treating it seemingly as settled law. Miranda thus looks to have a future of refinement or limitation, but a future nevertheless.”).

[81] Charles Weisselberg, Elena Kagan and the Death of Miranda, Huffington Post (June 1, 2010, 2:45 PM).

[82] Berghuis v. Thompkins, 130 S. Ct. 2250, 2266, 2272, 2278 (2010) (Sotomayor, J., dissenting).

[83] 384 U.S. 436, 471 (1966).

[84] Id. at 467–68.

[85] Id. at 473.

[86] Id. at 471 (emphasis added).

[87] Maryland v. Shatzer, 130 S. Ct. 1213, 1229 (2010) (Stevens, J., concurring in the judgment).

[88] Dickerson v. United States, 530 U.S. 428, 465 (2000) (Scalia, J., dissenting),available from theLegal Information Institute.

[89] Orin Kerr, Does the Constitution Have a 14-Day Clause? A Comment on Maryland v. Shatzer, TheVolokh Conspiracy (Feb. 25, 2010, 2:16 AM) (quoting Minnick v. Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., dissenting)).

[90] Dickerson, 530 U.S. at 465 (Scalia, J., dissenting).

[91] See Kerr, supra note 104; see also Holland, supra note 95.

[92] Berghuis v. Thompkins, 130 S. Ct. 2250, 2270 (2010) (Sotomayor, J., dissenting).

[93] Id. (quotation sources and alterations omitted).

[94] See supra text accompanying notes 16–18 & 77–81.

[95] See supra text accompanying notes 24–25, 49 & 80.

[96] Maryland v. Shatzer, 130 S. Ct. 1213, 1224 (2010).

[97] See supra text accompanying notes 81, 89–90.

[98] Richard A. Leo, Police Interrogation and American Justice 124 (2008) (discussing studies on police interrogation in America).

[99] Brief for Professor Richard A. Leo as Amicus Curiae, supra note 22, at 20.

[100] See supra text accompanying notes 22–24.

[101] Florida v. Powell, 130 S. Ct. 1195, 1206 (2010). The standard FBI warnings provide in relevant part “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Id. (quoting Brief for the United States as Amicus Curiae,supra note 24, at 12 n.3).

[102] See supra text accompanying note 60.

[103] Maryland v. Shatzer, 130 S. Ct. 1213, 1233 n.13 (2010).

[104] See supra text accompanying note 81.

[105] See discussion supra notes 16, 41.

[106] Christopher E. Smith, Justice John Paul Stevens: Staunch Defender of Miranda Rights, 59 DePaul L. Rev. (forthcoming 2010) (manuscript at 38) (on file with author).

[107] Id.

[108] See supra text accompanying notes 26–28.

[109] See supra text accompanying notes 58–60.

[110] Weisselberg, supra note 96.

[111] Id.

[112] See Tom Grant & John Ullyot, Kagan and the ‘Public Safety Exception’, Wall St. J., May 14, 2010 (questioning whether Kagan shares Stevens’s “extremist” views on Miranda).

[113] Responses to Senator Jeff Sessions, Questions for the Record 22, available from the Senate Judiciary Committee.

[114] Id. at 22–23.

[115] Brief for the United States as Amicus Curiae, supra note 24; Brief for the United States as Amicus Curiae Supporting Petitioner, Berghuis, 130 S. Ct. 2250 (No. 08-1470), available from the American Bar Association; Brief for the United States as Amicus Curiae Supporting Petitioner, Shatzer, 130 S. Ct. 1213 (No. 08-680), available from the American Bar Association.

[116] See Brief for Respondent, supra note 11, at 7, 52-53 (discussing Miranda forms used nationwide and Tampa police’s change in its form).

[117] Florida v. Powell, 130 S. Ct. 1195, 1203 (2010).

[118] Id. at 1200.

[119] See Charles Savage, Holder Backs a Miranda Limit for Terror Suspects, N.Y. Times, May 9, 2010.

[120] Responses to Senator Jeff Sessions, Questions for the Record, supra note 128; Responses to Senator Lindsey Graham, Elena Kagan Questions for the Record, at 3, available from the Senate Judiciary Committee.

[121] Dickerson v. United States, 530 U.S. 428, 443 (2000).

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