SCOTUS Hears Arguments on Whether Miranda Requires a Suspect to be Told that Counsel Will be Appointed for Him During Questioning

Today (December 7, 2009), the Court will hear oral arguments in Florida v. Powell, Supreme Court No. 08-1175, dealing with the form of Miranda warnings that must be given by police officers interrogating suspects. Miranda v. Arizona, 384 U.S. 436 (1966), requires an officer to give three warnings: (a) they have the right to remain silent and that anything the suspects says can and will be used against him/her; (b) that they have the right to the presence of counsel; and, (c) if they cannot afford one, one will be appointed for them. In Powell, the Court will hear whether the effect of failure to give the third warning about appointed counsel which makes it clear that counsel will be appointed for the suspect during questioning. The Florida Attorney General is arguing that because Miranda is “merely a prophylactic rule” such a breach should not warrant exclusion. The Florida Attorney General is ignoring the opinion of the Court in Withrow v. Williams where the Court stated that just because the rule is prophylactic does not mean its is unimportant. Strangely, they are being supported by President Obama’s Solicitor General even though President Clinton’s former Solicitor General (Seth Waxman) is responsible for the Court appreciating the importance of the Miranda principle in Dickerson v. United States. Ten years ago today, Solicitor General Waxman stood in front of the high court and told the Court that Miranda was a vital tool necessary to enforce the protections of the Fifth Amendment. Apparently, his successor does not agree with him. To read the Florida State Supreme Court decision siding with Mr. Powell, click here.

In addition to the standard amici filed in the U.S. Supreme Court is the
amicus brief of Professor Richard Leo, a national expert on false confessions. (Legal disclaimer, we use Dr. Leo as an expert in some of our cases). Professor Leo’s brief is an interesting read about all the techniques used by law enforcement to deemphasize the protections of Miranda. It will be interesting to see how this case goes with the new appointments to the Court. Justice O’Connor was no friend of Miranda. The substitution of Justice Samuel Alito (who is more conservative than Justice O’Connor) should prove to be a wash. Justice Souter was on the side of Miranda. In fact, he wrote the opinion in Withrow. Justice Sotomayor replaces Justice Souter in the line up and her vote could be important on this question. Justice Roberts will probably vote the same as Justice Rehnquist. Justice Roberts was Justice Rehnquist law clerk and regards Justice Rehnquist as his mentor. In Withrow, Justice Rehnquist voted against the Defendant; in Dickerson he wrote the opinion for the suspect. This will be a close case. Stay tuned.