The Supremes had a wide open field when it came to deciding how long an invocation of Miranda rights would last in Maryland v. Shatzer. The range was 10 seconds to eternity. I made my position clear up front, though others disagreed. The Supreme Court has now spoken, and, ironically, has finally done what I have often criticized it for not doing. It actually gave a clear answer : 14 days.
It figures that the Supremes would finally actually decide a case, and provide a bright line test, when it serves to burn the defendant. But the decision by Justice Antonin Scalia, the originalist philosopher, makes the line as bright as can be:
It figures that the Supremes would finally actually decide a case, and provide a bright line test, when it serves to burn the defendant. But the decision by Justice Antonin Scalia, the originalist philosopher, makes the line as bright as can be:
Held: Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.
The question, of course, is how the Supremes arrived at this two week bright line. Orin Kerr, who’s become remarkably snarky lately, tried his hand at explaining.
And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.
As Orin notes, the utility of arriving at a hard and fast rule is clear, given that police in the field (or “on the fly,” as Orin calls it, just in case they had no opportunity to think about their actions in advance of a custodial interrogation) can’t be expected to comport with some complicated balancing act, the new professionalism notwithstanding, is clear. It’s hard to disagree with the need to a clear mandate, even though the Constitution doesn’t include an expiration date on rights. Seriously, if the invocation of rights lasted forever, we would have the anomalous situation of police never being able to coerce confessions. How would we ever convict anyone?
Orin also offers an affirmative reason for Justice Scalia’s opinion containing the 14 day rule, and it’s pretty interesting as well. As he notes, Scalia hates Miranda, it being a wholly judge-made rule, which he called a “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.” So when this opportunity arose to place an arbitrary limit on the duration of the invocation of Miranda rights, Scalia was there.
But if you can’t beat ‘em, join ‘em. Or at least join ‘em if that means you get to write the opinion that substantially limits the effect of the Edwards rule. And if you’re going to write an opinion that you see as merely “prophylactic,” presumably you’re not bound by your usual approach to constitutional interpretation. With apologies to Chief Justice Marshall, it is not a Constitution you are expounding. So explicitly policy-based rulemaking becomes more understandable, even if it’s jarring coming from Justice Scalia.On the bright side of this bright line test, at least we can forewarn defendants that their invocation of right to counsel has a shelf-life of 14 days. After that, rinse and repeat. Or, if they prefer not to keep an eye on the calendar, they can always just follow the prime directive. Say the magic words (I want to speak with my lawyer) and then shut up.
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You can be sure that the next month will be busy with cops running over to the homes of suspects in cold cases to make some inquiries.
Are you kidding? I can see police supply houses selling two week tickler stamps.
What’s the actual reasoning behind two weeks? How can they assume that 2 weeks is time enough to get over it? The rule is really bothering me.
“It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”
Where’s the reason?
Remember what your parents said? “Because we say so.” Get over it.
I knew that would come back and bite me…
Sir, Contrary to what people might think, the Miranda isn’t read in here in Texas.
If someone says they have heard it (they are either rich, a celeb., or the cops played up to a camera.) Suspects / inmates that ask for a lawyer are told, “if your not guilty you don’t need one” & then it’s six hours later.
In a normal circumstance, if an (unemployed or minimum wage) suspect was to ask to speak to a lawyer would he/she be given a phone book & a timer, or does one choose from lawyers in the lobby? Thanks.
So is that a hard 14 days or what if there is a national holiday? I assume weekends are included. Do we then go to the Rules of Civil Procedure for the definition of a “day”? I am glad they cleared this up.
It’s 14 days straight. Anything else would make the police have to wait, and justice delayed…
In Texas, Miranda is required by statute. A statement is not (as a general rule) admissible unless the arrestee has been read his rights and has waived them in writing or on video or audio.
Still, I get this all the time: “But they didn’t read me my rights!”
Why the disconnect? Because they don’t have to read you your rights unless they are going to interrogate you while you are in custody.
TV has led people to believe that the cops are doing something wrong if they don’t Mirandize you when they arrest you, but that’s not the law.
Really, they require proof beyond the officer’s word that the suspect was mirandized?
Typical cross on Miranda in California:
Me: So you read Mr. Smith his Miranda rights verbatim from your officer’s index and he acknowledged that he understood each of those rights and agreed to speak with you?
Cop: Yes.
Me: Where did that soliloquy take place?
Cop: What?
Me: Where did that happen?
Cop: In the interview room.
Me: The interview room is equipped with state of the art A-V equipment and you can record video or audio of an interview in that room by pressing a button, correct?
Cop: Yes.
Me: Did you?
Cop: No.
Me: Why not?
Prosecutor: Objection relevance.
Judge: Sustained.
Me: Did you ask the defendant to sign an acknowledgment and waiver of those rights?
Cop: No.
Me: Why not?
Cop: He had just done so verbally.
Judge: Miranda and foundational objections overruled.
I particularly enjoy your gratuitous inclusion of the soliloquy line, just to add that sense of realisim.
I never miss a chance to make fun of the C student high school graduates who our nation has handed the keys to.
Yep. http://law.onecle.com/texas/criminal-procedure/38.22.00.html