Balkinization  

Sunday, April 21, 2013

Levinson's Fifth Amendment -- and Warren's

Jason Mazzone

Professor Levinson takes issue with my criticism of recent media commentary that there is something improper, indeed alarming, about the government's failure to Mirandize Dzhokhar Tsarnaev. I don't know what I think about the penalty-is-a-price theory Professor Levinson suggests might account for behavior by governmental and non-governmental actors. I do know, however, that his reading of Miranda is off the mark. Here is how Chief Justice Warren described in the first paragraph of the Miranda decision the issue at stake: "[W] deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself." Consistent with that specific framing of the issue, Warren summarized the holding of Miranda in the following way: "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." The much broader idea that Professor Levinson urges--that the Constitution is violated by the mere failure to give a list of warnings to anybody who is arrested and that we just happen to have created a situation in which the police can craftily get away with such violations--has never been adopted by the Supreme Court. And for good reason: the concern of the Fifth Amendment privilege is with using an individual's own words against him to secure a criminal conviction. See Chavez v. Martinez (2003). Nothing in the Fifth Amendment secures any general right to stay mute and nothing in the Constitution obligates the government to tell people what the Constitution means. Professor Levinson's different approach is thoughtful and it might well be a better way of organizing things. Perhaps the place to start in pursuing that approach, though, is not with a high-profile suspect now under the watchful eyes of the ACLU and the mass media but with the millions of low-level criminal suspects who don't have rights read to them either. Regardless, it seems to me (as it should seem to anybody who cares about an informed citizenry) that it is rather irresponsible to spread, through mainstream media outlets, the false notion that the police must--and always do--Mirandize anybody who is arrested. If calling out those who spread constitutional falsehoods makes me snarky, then so be it.    

(I can't comment on Professor Levinson's reference to Fox News--I haven't owned a television in many years--but I take it the analysis there isn't much better than what I have seen on Slate, among other mainstream websites. Finally, I happen to think some of the best work on the meaning of the Fifth Amendment has been done by faculty members at the Yale Law School.)          

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