February 25, 2010

Antonin Scalia, Judicial Policymaker

There is a fourteen-day limit on the Miranda rule.  You didn't know that?  Neither did I, and neither did anyone else, not until this new interpretation of the case interpreting the Fifth Amendment got handed down with this fine piece of originalist, true-to-the-text Constitutional reasoning by none other than the King of Textual Literalism himself, Justice Antonin Scalia:
We think it appropriate to specify a period of time [after a suspect invokes his right to an attorney to allow police interrogation without the attorney present]. 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.

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.
From which clause, you may ask, does the arch-textualist Antonin Scalia derive this 14-day rule? None. None at all. He pulls the 14-day period straight out of his ass the air and bases it on his own assumptions, academic knowledge, and personal experience about what it's like to be arrested and interrogated by the police. (Did I just say "experience?" Hmm, bad word choice there, TL, it's quite unlikely that Justice Scalia has ever been under suspicion by the police for anything in his entire life.)

In any event, if within the 14 days the suspect's lawyer hasn't instructed him on Popehat Rule #1, the lawyer should nevertheless have required her client to watch this video and its sequel.

Here's the take-away, the real rule that you should bear in mind if you are ever involved in an investigation of a crime:

Don't talk to the police. Ever. About anything.

This rule applies even if you know for sure that you're absolutely innocent and the only thing you're going to say is 100% exculpatory and no sane person could possibly interpret anything you say as incriminating in any manner and that nice, polite, courteous cop assures you that he just wants to "clear your name" so he can move on and look for the "real criminal."

Why?  Nothing good* can possibly come of it.

You have a Constitutional right to not talk to the police. A right that you will benefit from exercising.

They'll have plenty of opportunity to gather other kinds of evidence to do their jobs without your assistance, don't you worry your pretty little head about that. A healthy distrust of those in positions of authority is a deeply American character trait, so don't be afraid to exercise your rights, especially this one.  That right is there, after all, to protect the innocent.

And it's pretty safe to assume that the passage of fourteen days after you've invoked your rights will not cause the police to suddenly change their attitude towards you or the way they do business.  So even if the Miranda rule does have a 14-day limit, Popehat Rule #1 does not.
* Nothing good for you, that is.

Hat tips to Orin Kerr, Web, and Ken.


Dan said...

Two comments.

1) I am shocked (SHOCKED!!!) that you are questioning Scalia's bona fides as a strict constructionist. If he ruled on it, it must be in the text of the Constitution somewhere. That's probably what "habeas corpus" means, and you've just been getting it wrong all these years.

2) While I applaud the overall sardonic tone of this post (as with most of your posts, which I also applaud), I also should note that this is really good advice, and will try to keep it in mind if I ever end up in the clink.

Kaz Dragon said...

It's not so clear cut in the UK. When given a caution by the police (which is kind of DEFCON 2 before charging you with something), part of their spiel includes:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Burt Likko said...

Kaz, in the UK, do you have a right to a court-appointed lawyer? Do you know when that right attaches?

Dan, you'd think that two decades of Law & Order on TV would have educated the public by now. There is a scene in almost every espisode of Law & Order in which the cops go in to the interview room and say something like, "Timmy, you're in a lot of trouble. We just need to hear your side of the story!" and Timmy then proceeds to tell them his side of the story. Triva question: in which episode did that work out well for Timmy? None of them.

Kaz Dragon said...

I honestly have no idea, TL. I've never been in that situation, and a quick Google doesn't yield anything concrete.

There do seem to be limitations to what can be inferred from the silence. In particular, it's not possible to convict someone based on their silence. But as I understand it, that particular wording is there to allow the inference from prior silence to mean that a witness on the stand has had sufficient time to make up an answer to the question.