in contrast, there are increasing doubts about the
reach of all of our constitutional rights."
Coercive Interrogation You
Have No Right to Remain Silent
Posted December 11, 2002 thepeoplesvoice.org
by JOANNE MARINER
E-mail to firstname.lastname@example.org
Anyone who has ever watched a cop show knows
that you have a right to remain silent in response to police questioning,
and that if you knowingly waive that right, "anything you say can be
used against you in a court of law." The Miranda warnings, named after
the 1966 Supreme Court case that gave rise to them, are deeply embedded in
both legal and popular culture.
Given the warnings' established place in
police procedures, TV cops and real-life police officers might be surprised
to learn that the first Miranda right is not a right at all, at least
according to the government.
In a case argued before the Supreme Court
last Wednesday, Deputy Solicitor General Paul Clement explained that
coercive interrogations in no way violate the rights of detainees. He
claimed that the constitutional violation at issue in Miranda v. Arizona
occurs only in court, if and when the prosecution tries to introduce a
suspect's coerced statements as evidence.
Put bluntly, you have no right to remain
silent. What you have, instead, is a right not to be criminally prosecuted
on the basis of your coerced statements. If the government is correct, then
the language of the Miranda warnings is wrong.
Shoot First, Ask Questions Later
Nobody disputes that the case currently
before the Supreme Court involves coerced statements. Oliverio Martinez, the
34-year-old farm worker who brought the case, was interrogated in an
ambulance and a hospital emergency room after being shot five times by
"Ay! I am dying! . . . What are you
doing to me?" an agonized Martinez is heard to cry out on a tape
recording of the interrogation. Despite Martinez's insistence that he is in
no condition to talk, the police sergeant does not stop his questioning.
"If you are going to die, tell me what happened," urges the
sergeant, who is now a defendant in Martinez's damages suit.
The police sergeant's tenacity in continuing
the questioning--he persisted on and off over a 45 minute period--may have
stemmed from a concern that his fellow officers could be found responsible
for wrongfully shooting Martinez.
The shooting occurred after police stopped
Martinez when he was riding his bicycle home from work one day. The
officers, who were questioning another man, ordered Martinez to dismount.
Martinez, who was never criminally charged for the incident, had in his
waistband a sheathed knife that he used to cut strawberries. When one of the
officers noticed the knife, he wrestled Martinez to the ground, and a
scuffle ensued. The other officer, who allegedly believed that Martinez was
reaching for his partner's gun, shot Martinez five times at point-blank
"O.K. You're dying. But tell me why you
were fighting with the police," demanded the police sergeant during his
interrogation of Martinez. Repeatedly, as he pressed on with the
interrogation, the sergeant asked the injured man to admit that he had tried
to grab the officer's gun.
Martinez is now blind and paraplegic, but the
Oxnard police department, a defendant in his civil suit, refuses to
compensate him for his injuries. Nor did the three officers involved in the
shooting ever face disciplinary sanctions.
The Dispensable Right to Silence
Besides a claim of excessive force,
Martinez's suit against the police alleges that his Fifth and Fourteenth
Amendment right to be free of coercive interrogation was violated. The
defendants--whose arguments are seconded by the federal government in a
brief submitted by the Solicitor General--argue that the coerciveness of the
interrogation is simply irrelevant, given that Martinez was never criminally
Under the rule that the government proposes,
defendants have a right not to have their coerced statements used as
evidence against them in a criminal prosecution. But they have no right, in
itself, to remain silent in the face of police questioning. The
constitutional violation, in the government's view, only occurs during the
subsequent criminal proceeding; it does not occur during the questioning
If the Supreme Court upholds the government's
preferred reading of the Constitution, then it means that police will have
to decide, before starting to interrogate a suspect, which of two possible
routes to take. As long as the suspect's statements will not used to
prosecute him or her, the police are free to rely on coercive questioning to
obtain the desired information. But if the police believe that the suspect's
statements will be necessary at trial, then they need to advise the suspect
that he or she is free to remain silent.
To speak of a "right" to remain
silent, when the purported right exists at the discretion of the
interrogating officer, would be an exaggeration.
The Case's Practical Implications for the
As it would play out in practice, this
weighing of possible options seems a far cry from the bright-line
requirement that the Miranda decision was meant to establish. And the
government's suggested rule might, as civil rights advocates have warned,
open the door to increased police reliance on threats and violence.
The new rule could also spark tensions
between police and frustrated prosecutors, who--if police choose to exercise
their discretion to conduct coercive interrogations--would be stuck with a
rash of statements that are inadmissible in court. But because police
interrogations are so often conducted precisely in order to obtain
incriminating statements from the suspect, prudent police departments would
probably continue to train their officers to give Miranda warnings as a
matter of course.
It may become clear, in retrospect, that the
real importance of the Supreme Court's decision in this pending case has
little to do with normal police actions. Instead, the impact of the Court's
ruling might primarily be felt by a very specific group of suspects: those
held for alleged involvement in terrorism. This case could, in fact, be the
first of what may end up being a series of Supreme Court decisions
legitimating an inquisitorial approach to dealing with terrorism detainees.
It is probably no coincidence, therefore,
that Paul Clement, the deputy solicitor general who argued the government's
position in the present proceedings, also handles his office's involvement
in the cases of Jose Padilla and Yaser Hamdi, the two American "enemy
combatants" currently held in indefinite, incommunicado detention.
The Coercive Interrogation of "Enemy
At present, the legal status of
terrorism-related detainees is far from settled. It is obvious, nonetheless,
that the Bush administration's preferred approach is generally to designate
suspected terrorists as "enemy combatants," not criminals. The
effect of the designation is that the suspects are not, in the
administration's view, persons who benefit from any of the basic procedural
protections provided under the criminal law.
Viewed as a whole and in its details, the
administration's approach to the detainees is an inquisitorial one.
Lawyers--or any other potential advocates for the rights of the
detainees--are excluded from the process. The executive branch has exclusive
power to detain the suspects, interrogate them, assess their responses, and
- if, and only if, it is satisfied that they are not implicated in terrorist
acts - release them.
Under any fair assessment of their situation,
the detainees held as "enemy combatants" are being subject to
coercive interrogation. (Granted, this is a difficult assessment to make,
given that no independent monitor has access to the detainees, but it is
clear that the conditions of their detention are inherently coercive, and
that the government has not been advising them of any right to remain
Indeed, in legal briefs submitted to the
federal courts reviewing the detentions, the administration makes specific
reference to the need for intelligence collection. And as these briefs
emphasize, successful interrogations require the creation of an atmosphere
of "dependency and trust" between detainees and U.S.
If Miranda were interpreted to extend outside
of the scope of criminal prosecutions, it might be understood to lend some
protection to the detainees. It is thus unsurprising that at oral argument
on Wednesday in the Martinez case, Justice Antonin Scalia specifically
questioned Martinez's counsel about the case's implications for fighting
What "Shocks the Conscience"?
So, assuming that Miranda's protections are
inapplicable, are there any constitutional limits on the government's power
to coerce statements from detained suspects? According to the Solicitor
General's brief in the Martinez case, there are. But they give official
interrogators considerable leeway.
Outside of the criminal law context, asserts
the government, the Constitution only prohibits official misconduct "so
brutal and so offensive to human dignity" that it "shocks the
One assumes, hopefully, that the torture of
detainees would be deemed to fall within this category. And I should note
here that there is no evidence that any of the so-called enemy combatants
has been subject to torture. (I should also note, however that a few
so-called civil libertarians like Alan Dershowitz are quite prepared to
sanction the torture of terrorist suspects (but query as to whether he has a
conscience left to shock).)
Still, it's depressing to think that outright
brutality is now the test. We seem to have come a long way from Miranda, and
the optimism that imbued the Supreme Court's 1966 opinion.
Announcing its ruling in Miranda, the Court
spoke in the broadest possible terms: "Today, then, there can be no
doubt that the Fifth Amendment privilege is available outside of criminal
court proceedings, and serves to protect persons in all settings in which
their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves."
Today, in contrast, there are increasing
doubts about the reach of all of our constitutional rights.
© Copyright 2002 All rights reserved by
Joanne Mariner. Joanne Mariner is a
human rights lawyer based in New York. She can be reached at: email@example.com