Recent Supreme Court interpretations of the Supreme Court’s Miranda case on police questioning of suspects show that the Miranda doctrine “has gone from a rule designed to protect suspects to one that protects the police,” Anthony Franze of the law firm Arnold & Porter writes in the Harvard Law and Policy Review. Decisions in the court’s last term say, Franze summarizes, that “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.
Retired Justice John Paul Stevens was a key defender of the original Miranda ruling; replacement Elena Kagan’s detailed views are not known. Franze predicts that Miranda “will remain a hot-button issue. ” He notes that the Obama administration is still pressing Congress to enact a broad “public safety” exception to Miranda allowing investigators to interrogate terrorism suspects without informing them of their rights.