(LA Times, registration required)
High Court to Hear Miranda Challenge: Maybe you don't have a right to remain silent after all.
     The Supreme Court in its landmark Miranda opinion ruled that police must respect the rights of people who are held for questioning. Officers must warn them of their right to remain silent, and, equally important, honor their refusal to talk further. But that widely known rule is about to be reconsidered in the high court in the case of a farm worker here who was shot five times after a brief encounter with police. Legal experts say the case has the potential to reshape the law governing everyday encounters between police and the public.
     [.....] The Miranda decision grew out of the 5th Amendment, which says no person "shall be compelled in any criminal case to be a witness against himself." This has long been known as the right against self-incrimination. The Supreme Court in the 1950s and '60s struggled in a series of cases to decide whether a person's confessions to the police had been voluntary or compelled. Often, a suspect claimed to have been beaten, but the police denied it. In one case, five members of a Los Angeles family had been held in jail for more than a week before one of them talked. In frustration, Chief Justice Earl Warren announced a broad new rule in Miranda vs. Arizona. He said that because police questioning is inherently coercive, officers must warn suspects of their rights before questioning begins. His opinion and others that followed it described the so-called Miranda warnings as limitations on the police.
     But all along, some lawyers and law professors have questioned whether the Miranda warnings themselves are a constitutional requirement. [...] "Contrary to the 9th Circuit's conclusion, there is no 'right to silence,' " said Oxnard's lawyer Alan E. Wisotsky. Since Martinez was not prosecuted for anything he said, his rights were not violated by Sgt. Chavez, he concludes.
     [.....] However, "the fact that a federal appellate court has allowed [a lawsuit] for Sgt. Chavez's brief, comparatively benign questioning demonstrates the need to clarify the law," said Charles Hobson of Criminal Justice Legal Foundation. Klein, of the University of Texas, filed a friend-of-the-court brief on behalf of the National Police Accountability Project. She argued that innocent people will be particularly vulnerable if the court rules the Constitution does not forbid coercive police questioning. Criminal suspects still can insist their incriminating statements not be used against them at trial. But an innocent person who is held for questioning would have no right and no remedy, she said.

Well, that will be interesting. If applied as the lawyers for Oxnard would have it, the result would be that only the guilty would have constitutional rights. As long as the state didn't actually charge someone, the police would be free to question someone as coercively as they would wish.

To be sure, the facts of the case do complicate the issue. On the one hand, given that the case is what it is, siding with Oxnard is tantamount to saying, "Yes, the police may torture people to get information from them, but they may not use that information at trial." Thus, you could get a full confession, which would then be suppressed, and the person would go free. All the fun of police brutality, with none of the nasty side effects ... as long as you make sure not to arrest the person you torture -- pardon me, the person that you coercively question.

Overruling Miranda might produce an interesting effect. Certainly, it would be more honest. But given that two or three generations of Americans have grown up with that encoded into their brain, not only might state legislatures feel the need to pass a state version of Miranda, but it's entirely possible that Congress might feel some pressure to pass an explicit constitutional amendment with those very words. Our Lord High Minister of Injustice would fight any such attempt, of course, as would, in all likelihood, Our Glorious Leader. And pretty much every single police department in the land would be against it.

... But.

Police associations, and individual police officers themselves, only contribute so much to campaigns. It would be an issue on which major corporations would probably take no position -- or even support a pro-amendment side. In short, it could actually be an issue in which Congress felt free to do as their conscience dictated. (Mind, I wouldn't give a plugged nickel for some of those alleged "consciences" ... but that's another issue.)

I suspect that a bare majority of the court may wind up supporting Miranda, and siding against Oxnard -- again, primarily because of the facts of the case. The Court surely cannot support the ludicrous contention that the Constitution only applies to those who are charged with crimes.

... Can it?

I do believe the high court ruled on Miranda within the last few years and they upheld it all (I think it came from a case from the ultra-conservative 4th Circuit who had squashed the warnings in favor of some law Congress had passed, reflexively, right after the original Miranda ruling that purported to legislatively overrule it?). As one professor of mine pointed out, none of the current members, even with a republican majority, want to be the ones who "take away" the Miranda rights.