Godfrey also says that Berghuis demonstrates something the Miranda Court was very worried about—that of police using sophisticated interrogation techniques against unsophisticated suspects who are being held incommunicado in police custody.
By appealing to the suspect’s religion, the police officer was able to get a statement after more than three hours of interrogation, he says.
“Miranda was aimed at leveling that playing field by only allowing statements after evidence that the individual understood his rights and clearly waived them. Now, that waiver can be implied,” Godfrey says.
While statements taken in violation of the Miranda decision may not be used against the defendant who made the statements in the prosecution’s case, those statements may still be used against a defendant in three ways: to impeach the defendant on cross-examination, in a grand jury or preliminary hearing against him, and if a wrongfully obtained statement leads the police to evidence, that evidence could be used against the defendant at trial. Thus, there is no fruit-of-the-poisonous-tree doctrine for Miranda.
“So, if the police improperly take a statement from the defendant and in that the statement the defendant tells the police where the murder weapon is, while the statement can’t be used as evidence against the defendant, the murder weapon can,” Godfrey says.
Daniel Coyne, a Godfrey colleague at Chicago-Kent and a veteran trial lawyer, doesn’t believe the Miranda protection sky is falling. “An officer still has to stop questioning someone if they say they want a lawyer, or if they say they don’t want to talk to police,” Coyne says. Coyne says the gray area seems to be for that tiny percentage of suspects that might not want to say anything, in which case waiving of rights can be inferred.
“If the suspect then says something inculpatory then Berghuis seems to say that that’s [admissible], because they never told the officer to go away or that they want a lawyer,” Coyne says.
Coyne sees Berghuis more as a refinement than erosion. “The law is a living thing, it keeps evolving,” Coyne says. Coyne says any scholar will tell you that the original Miranda decision needed polishing in term of implementation.
“The justices had the benefit of hindsight—they were not looking through the eyes of officer on the scene,” he says.
In terms of what’s right about Miranda, Godfrey says it has been a powerful device to educate the public about their rights if they are questioned in police custody. “Further, most defendants still make statements to the police, so Miranda has not prevented as much useful evidence from coming into trials as was first feared,” Godfrey says. Miranda will still exist in the future, he says, if only in an abridged form.
Coyne isn’t particularly worried that Miranda is being diluted.
“You’ll always have those protections because you’ve had them for over 235 years now,” he says.
Douglas Page writes about science, technology and medicine from Pine Mountain, Calif. He can be reached at email@example.com.