Law: Chip-Chip-Chipping Away

For years now, the Burger Supreme Court has snipped at the boundaries of Warren Court precedents–too timidly for some conservatives; heavy-handedly to many liberals’ way of thinking. The process has been especially prevalent in criminal-justice cases, and the court, having again scheduled a hefty batch of such rulings this term, continued its chip-chip-chipping away last week by taking a new chunk out of the Miranda rule. That familiar doctrine requires police to advise detained suspects of their rights to remain silent and to obtain a lawyer. When a suspect “voluntarily” makes a damning admission before being advised of these rights, said the court in a 6-3 decision, a subsequent confession can still be used against him if he makes it after the proper warnings.

The ruling is the second round of tinkering with the Miranda rule in nine months; last June a 5-4 majority said police could dispense with the warning before questioning a suspect if there was a threat to the public safety–in that case, a discarded gun in a supermarket. Conservative Justice Sandra Day O’Connor dissented from that decision, saying that it “blurs the edges” of a clear rule. But this time it was O’Connor who was picking at the edges, in the case of an 18-year-old from Salem, Ore., accused of involvement in a $150,000 burglary.

When initially questioned, Michael Elstad blurted out, “Yes, I was there.” Taken to sheriff’s headquarters, Elstad was given a Miranda warning for the first time, then asked again about the crime, whereupon he signed a full confession. But an Oregon appeals court reversed his conviction, saying that the first, illegally obtained statement tainted the second and rendered it inadmissible in court. Because the “cat was sufficiently out of the bag,” the state court concluded, Elstad confessed the second time thinking his fate was sealed. Justice O’Connor, writing for the majority, found this kind of “psychological” analysis unpersuasive. There was no reason to believe Elstad’s second statement was involuntary, she said. But O’Connor carefully circumscribed her reasoning, saying that a subsequent Miranda confession could be invalid if the initial admission is compelled by police coercion. Furthermore, she contended, the “bright line” of the Miranda rule remains firmly in place; “unwarned” confessions are still not admissible as evidence.

Liberal Justice William Brennan was not reassured. He accused the majority of delivering a “potentially crippling blow to Miranda and . . . the rights of persons accused of crime.” Georgetown Law Professor William Greenhalgh sympathized with the dissenters, noting that despite O’Connor’s bright-line endorsement, “exceptions like this tend to dim that line for police in the field.” The practical impact may not be large, said other observers, but the new ruling is another sign that the conservative members of the court intend to keep on whittling.