April 22, 2003

PENUMBRAS AND EMANATIONS

Justices Will Revisit Rules Governing Use of Evidence (LINDA GREENHOUSE, 4/22/03, NY Times)
The justices said today that they would review a decision by the federal appeals court in Denver, which ruled last September that physical evidence--a gun, in this case--discovered as a "fruit" of a Miranda violation could no longer be introduced as evidence at trial despite Supreme Court rulings to the contrary. The appeals court's reasoning was that the premise of the earlier cases was "fundamentally altered" when the Supreme Court declared three years ago in Dickerson v. United States that the warnings set out in Miranda were not simply "prophylactic" measures to insure that confessions were voluntary, but were directly required by the Fifth Amendment's protection against compelled self-incrimination.

The earlier cases, principally Michigan v. Tucker in 1974 and Oregon v. Elstad in 1985, were based on the premise that a Miranda violation was not a constitutional violation as long as the suspect's statements were voluntary, the United States Court of Appeals for the 10th Circuit noted in its opinion. That court ordered suppression of a pistol that police found in the Colorado Springs home of a suspect, Samuel F. Patane, whom they had just arrested for violating a domestic violence restraining order. The police asked Mr. Patane about the gun, and he described its location without having first received the Miranda warnings.

"Because Dickerson now concludes that an un-Mirandized statement, even if voluntary, is a Fifth Amendment violation," the evidence had to be suppressed, Judge David M. Ebel wrote for the appeals court.

But that was a misunderstanding of the Dickerson decision, Solicitor General Theodore B. Olson told the justices in the government's appeal, United States v. Patane, No. 02-1183.

Rather than rejecting the notion that physical evidence derived from a Miranda violation was admissible, Mr. Olson said, the Supreme Court in its 2000 decision incorporated that concept into its conclusion that because the Miranda decision was limited to actual statements, it had not imposed an unduly difficult burden on law enforcement.

Further, Mr. Olson said, while one purpose of the Miranda rule was to "guard against the use of unreliable statements at trial," physical evidence like the gun in this case "undoubtedly constitutes reliable, trustworthy evidence."

The "Fifth Amendment's protection against compelled self-incrimination"? That's strange, our copy of the Constitution says: "No person...shall be compelled in any criminal case to be a witness against himself". Telling the police something that incriminates you is hardly the same as being a witness. Meanwhile, by definition, a voluntary statement is not compelled, so even if you accept the "self-incrimination" standard, the Fifth still isn't implicated. Posted by Orrin Judd at April 22, 2003 8:59 AM
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