Use of Confessions Upheld Despite Police Deception : High Court Rulings Limit Miranda Protection

WASHINGTON —  In a series of little-noticed rulings over the last year, the Supreme Court has adopted an increasingly narrow interpretation of its controversial Miranda decision, upholding the use of criminal confessions even when police have deceived suspects or their attorneys.

In Miranda vs. Arizona in 1966, the Supreme Court held that police, before questioning suspects, must tell them of their right to remain silent and their right to consult a lawyer.

The new rulings narrowing that precedent represent at least partial victories for Atty. Gen. Edwin Meese III, who has railed against Miranda on grounds--disputed by many criminal justice experts--that it decreases the chances of obtaining convictions against criminals.

Lower Courts Reversed

Today’s court majority, led by William H. Rehnquist, who was sworn in as chief justice in September, says the Miranda ruling requires that suspects be read their rights--but little more. Acting on appeals from the Justice Department, the high court has repeatedly reversed lower courts that have thrown out confessions they considered in violation of the Miranda ruling.

“Miranda protects defendants against government coercion leading them to surrender their rights (against self-incrimination) protected by the Fifth Amendment; it goes no further than that,” Rehnquist wrote in December.

As recently as 1981, the court expanded Miranda’s reach by holding that the questioning of a suspect must stop as soon as the suspect requests a lawyer. In 1984, however, the justices began to narrow their view of Miranda by ruling that in emergencies, police may question suspects before reading them their rights.

Divided Over Strategy

That is not enough for Meese, who has complained that Miranda rights still prevent nearly all confessions. Although Meese’s avowed goal is to overturn Miranda, Justice Department attorneys remain divided over a strategy to achieve it.

In a report prepared for Meese last year, a faction led by Assistant Atty. Gen. Stephen Markman urged an all-out attack. The department, Markman said, should find a case that poses the flaws of Miranda so clearly that the court will reverse its 1966 ruling.

But Terry H. Eastland, Meese’s spokesman, said Markman’s plan is not the department’s policy. “On the practical side,” he said, “there is a difference of opinion on what should be done.”

And Solicitor General Charles Fried, who represents the government before the Supreme Court, denied that the department has a “grand plan to overturn Miranda.”

Other Attacks Fail

Last year, Fried failed in his frontal attacks on the court’s past rulings legalizing abortion and authorizing affirmative action. In this term, the solicitor general has been more cautious--and more successful--in urging only that the Miranda ruling be limited, not discarded.

“It depends on whether you see Miranda as a grand principle to be cherished and expanded, or a particular statement which is to be treated in a narrow, literal way,” Fried said.

The Supreme Court recently has adopted the narrow view--upholding the Miranda warnings but refusing to go beyond them. Writing for a 6-3 majority last March, Justice Sandra Day O’Connor said the courts must not casually block police efforts to gain confessions from suspects.

“Admissions of guilt are more than merely desirable,” she said. “They are essential to society’s compelling interest in finding, convicting and punishing those who violate the law.” At the same time, O’Connor wrote, the Miranda rules provide a reasonable check on police questioning “by giving the defendant the power to exert some control over the course of the interrogation.”

‘Proper Balance’

The Miranda decision “strikes the proper balance between society’s legitimate law enforcement interests and the protection of the defendant’s Fifth Amendment rights,” she said.

But the court’s liberals insist that the majority is ignoring the essence of the 1966 decision, which said a confession must be “voluntary, knowing and intelligent.” Moreover, they charge that the court is disregarding its own 1981 ruling that questioning must stop after a suspect asks for a lawyer.

In the case decided last March, a Rhode Island man was picked up for questioning on a burglary charge. After being read his Miranda rights, he agreed to be questioned without an attorney. He was detained and questioned off and on for 21 hours.

During that time, police obtained new evidence linking the suspect to a murder, and a lawyer retained by the suspect’s family was told by police in a telephone call that the questioning had ended for that day. It had not, however, and later in the evening the suspect confessed to the murder.

Distaste Over Misleading

O’Connor, although expressing her “distaste for the deliberate misleading” of the attorney, said the defendant had waived his right to remain silent or to have the attorney present.

In dissent, Justices William J. Brennan Jr., Thurgood Marshall and John Paul Stevens said they were astounded that the police were permitted to deceive an attorney and question a suspect alone for hours.

“Until today, incommunicado questioning has been viewed with the strictest scrutiny by this court; today, incommunicado questioning is embraced as a societal goal of the highest order that justifies police deception of the shabbiest kind,” Stevens said.

Nine months later, in December, the high court was faced with the case of a Colorado man who confessed to a murder after hearing “voices from God.” The Colorado Supreme Court had concluded that he was “berserk” and that his confession did not reflect an act of “free will.”

State Ruling Reversed

The Supreme Court, 6 to 3, disagreed. Rehnquist, writing for the court, said Miranda was intended only to protect against “coercive police activity,” not to assure that suspects are “totally rational” when they admit to crimes. Again, Brennan, Marshall and Stevens dissented, concluding that an insane person could not make a “knowing and intelligent” confession.

On Jan. 27, the court reinstated the conviction of Steven Barrett, a Connecticut man who told police that he would not sign a statement until his attorney arrived but had “no problem talking about” an alleged sexual assault. The police read him his Miranda rights and listened as he confessed to the crime. The Connecticut Supreme Court threw out the confession, citing the high court’s 1981 ruling, which said the questioning must end after the suspect requests a lawyer.

Rehnquist, writing for a 7-2 majority, disagreed. “Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak,” he said. Stevens and Marshall dissented.

Conviction Reinstated

Also on Jan. 27, the justices reinstated the conviction of a Colorado man who was picked up by police on a firearms charge, read his Miranda rights and then questioned about the murder of his hunting partner. The Colorado Supreme Court threw out the confession because the suspect had been deceived.

The high court, 7 to 2, again disagreed. The Miranda warnings specify that “anything he said could be used as evidence against him,” Justice Lewis F. Powell Jr. said. “The Constitution does not require that a suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.”

Marshall and Brennan dissented. “The coercive aspects of the psychological ploy in this case . . . cannot be justified in light of Miranda’s strict requirements that the suspect’s waiver and confession be voluntary, knowing and intelligent,” Marshall wrote.

Move Against Miranda Urged

Although all these recent decisions came out in the Reagan Administration’s favor, Markman, the assistant attorney general in charge of the Justice Department’s Office of Legal Policy, has recommended to Meese that the department find a case to argue for reversing the Miranda decision itself.

“The most basic point against continuing the specific warnings now mandated by Miranda,” Markman said, “is that they reduce the likelihood that a suspect will talk.”

As an alternative to Miranda warnings, Markman suggested that police record or videotape all interrogations, that the questioning have a time limit and that “specific deceptive or manipulative practices” be prohibited.

Most criminal law experts disagree with Markman’s prediction that the high court, given the proper case, would be willing to overturn the basic Miranda ruling.

‘Won’t Expand It’

“They are not very likely to reverse it now,” said Temple University law professor Charles Rogovin, “but they won’t expand it either.”

George Washington University law professor Gerald Caplan, who like Rogovin said he opposed Miranda in 1966, said it “has proven to be not a bad compromise. It has worked out reasonably well.”

The studies of Miranda’s impact have yielded a mixed conclusion: Although the rate of confessions has fallen, the rate of criminal convictions has remained about the same.

“That’s why it’s odd that the attorney general has stumbled into this,” said Caplan, a former federal prosecutor. “At least among the police, Miranda has ceased to be a controversial issue.”