Sunday, April 21, 2013
Professor Mazzone's snark
I found utterly dismaying both the tone and the analysis of Prof. Mazzone's snarky attempt to take down Emily Bazelon for her cautionary comments about the refusal to read Miranda warnings. The only thing lacking from standard-model Fox News rants was a reference to "Yale Law School pointy-headed airheads" (like Jack Balkin?). One can obviously have a genuine debate about whether there is, or should be, a "national security exception" to Miranda, but, presumably, that debate can be carried out with a courtesy lacking in Prof. Mazzone's post.
I think it's important to remember what Miranda IS. It's not refraining from torture, that's a given. It's not refraining from trickery, unfortunately that's NOT a given.
It's just telling the suspect that anything they say might be used against them, and that they have the right to shut up. Miranda is utterly irrelevant if you're not going to use what they say against them.
IOW, if your mad bomber, who may have left time bombs lying about, and may have confederates about, is spilling his guts, and you've got enough evidence to nail him even if you don't use his statements, you don't need to Mirandize him.
I'm not sure I agree with your interpretation of what the Miranda warnings are about. Leaving aside any potential substantive due process issue that arises from actual police brutality, isn't the idea that because the Fifth Amendment only protects against compulsion to "be a witness against oneself", the Constitution actually has not been violated unless the statement is admitted at trial? The Miranda warnings aren't a right in themselves; they're purely prophylactic.
Whatever the merits (or not) of Holmesian-style "bad man" arguments in general, it is worth noting that the Court itself has endorsed Professor Mazzone's description of Miranda-- that it is a rule of evidence, not a rule of interrogation.
See United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial"), and the various opinions in Chavez v. Martinez, 538 U.S. 760 (2003) such as the plurality ("We have likewise established the Miranda exclusionary rule as a prophylactic measure to prevent violations of the right protected by the text of the Self-Incrimination Clause–the admission into evidence in criminal case of confessions obtained through coercive custodial questioning. Accordingly, Chavez’s failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights."); Justice Kennedy ("failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues."); and Justice Souter (rejecting a right to sue "whenever the police fail to honor Miranda").
Of course one could take the view that these Supreme Court decisions about the scope of the Miranda right are not correct, but then one would presumably be opening up the broader debate about the correctness of the Miranda decision itself.
I can see Mr. Levinson's argument. The Court in Miranda says the following (and repeats it a few times actually): "we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation"
That seems to be saying that this is the constitutionally proper way to interrogate, and the exclusion fashioned in the same decision is the tool to enforce it. Mr. Mazzone seems to be saying the decision is all only about the tool...
The "usual" people are criticizing those like Emily Bazelon concerned about civil liberties. And, don't allow comments, so they can snark away, leaving it to Sandy Levinson to reply. I appreciate the different p.o.v., but the sneer, not so much.
Being informed of your rights is partially about guarding against trickery. Knowing your rights and there has to be some check against deprival of them (including the right to a lawyer before further questioning is given) helps there.
It is true that the evidence has to be used but the guy here is going to be prosecuted. There also is various ways your comments will "incriminate." Finally, putting aside Prof. Levinson's concerns, it should be noted that even if the person is not prosecuted, s/he has rights against mistreatment.
I like how this post was made with the same snarly tone that it decried.
"Does Prof. Mazzone think it's perfectly acceptable for corporations, for example, to do "whatever it takes" to stifle any union-organizing movements so long as they're willing to pay the (unlikely) penalty for doing so?"
Of course he never said that. Get off the high horse. Bazelon was wrong, get over it.
Yes, "he didn't say that."
Prof. Levinson was suggesting the sentiment would follow.
What specifically did Emily Bazelon say that was wrong?
The information that you provided was thorough and helpful. I will have to share your article with others.
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we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.Post a Comment
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