Wednesday, October 13, 2010

Counsel Examines Demise of Miranda

Anthony J. Franze was co-counsel for the defendant in Florida v. Powell, 130 S. Ct. 1195 (2010), one of the three Miranda cases recently decided by the U.S. Supreme Court. Franze examines those three decisions in a recent article in the Harvard Law & Policy Review.

Franze starts off with an ominous warning from an attorney for the National Association of Criminal Defense Lawyers, “[a]t this rate, what’s left of Miranda will be only what we see on TV.”

I have written about the "trilogy" of Miranda decisions from the High Court, Florida v. Powell, Maryland v. Shatzer, 130 S.Ct. 1213 (2010) and Berghuis v. Thompkins, 130 S.Ct. 2250 (2010). First, in the Pennsylvania Law Weekly; the Youngstown Vindictor; and this blog.

Franze suggests the following to emphasize the demise of Miranda--consider the new rules resulting from these three decisions: the police can take an individual into custody, read him an ambiguous Miranda warning (Powell), 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 (Berghuis). 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 (Shatzer).

The Supreme Court is chipping away at Miranda. Franze's article is worth reading.

To read the full article:

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