Famous Miranda rights warning could get rewrite

Dec 2009

The arguments in front of the justices were the latest over how explicit the Miranda warning rights have to be, as justices debated whether the warnings police gave Kevin Dwayne Powell made clear to him that he could have a lawyer present while being interrogated by police.

Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for $150 for his protection. Before his confession, Powell signed a Miranda statement that included the statements "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

The Florida Supreme Court overturned the conviction on grounds the Tampa police didn't adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Joseph W. Jacquot, Florida deputy attorney general, argued that the warning given Powell "expresses all the rights required under Miranda."

Justice Stephen Breyer clearly disagreed.

"Aren't you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?" Breyer said. "I mean, it isn't as if that was said in passing in Miranda. They wrote eight paragraphs about it. And I just wonder, where does it say in this warning, you have the right to have the lawyer with you during the interrogation?"

Different courts have came down on different sides on what exactly should be said, Justice Sonia Sotomayor said.

"We've got a split of circuit courts and state courts on whether this reasonably conveys or not. Shouldn't that be enough of an ambiguity for us to conclude it can't reasonably convey, if there's this many courts holding that it doesn't?" Justice Sonia Sotomayor said.

Powell's lawyer, Deborah K. Brueckheimer, said that the warning Powell was given from Tampa, Fla., police gave him the impression that "once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn't tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning."

Justice Scalia called Brueckheimer's argument "angels dancing on the head of a pin."

"You are saying, 'Oh, if he had only known. Oh, if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed,'" Scalia said. "I mean, doesn't that seem to you quite fantastic?"

Miranda rights have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can't afford one. But those requirements likely will continue to be parsed by lawyers and judges.

For example, Justice Samuel Alito pointed out that most police start off Miranda rights by saying "You have the right to remain silent." But, Alito said, what happens if someone begins talking to the police and then decides that they want to be silent?

"Once you break your silence, there is nothing in there that says you have the right to resume your silence," Alito said.

"We could write that down. It could be the next case," Justice Anthony Kennedy said to laughter.

This is the third Miranda case the court has heard this year. The justices heard arguments earlier over whether officers can interrogate a suspect who said he understood his rights but didn't invoke them, and whether a request for a lawyer during interrogation can expire after a lengthy period of time.

Decisions in all three cases are expected next year.

The case argued Monday is Florida v. Powell, 08-1175.

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