COURT TO REVISIT ITS MIRANDA DECISION

The Miranda decision, a 33-year-old landmark of the Warren Court's criminal
procedure revolution, headed for its most important test on Monday, as the
justices announced that they would decide whether Congress had effectively
overruled it with a law enacted for that purpose in 1968 and ignored almost
ever since.

The question for the court, in an appeal by a suspect indicted in a bank
robbery who made self-incriminating statements without having first
received his Miranda warnings, is whether Miranda v. Arizona itself
established a rule of constitutional law or whether it merely expressed the
Warren Court's preferred method of enforcing the constitutional right
against compelled self-incrimination. Although the distinction sounds
technical, it is critical: If the decision itself was an interpretation of
the Constitution, Congress cannot overrule it, and confessions made without
Miranda warnings cannot be used in the prosecution's main case. But if it
was something less, then Congress presumably could exercise its own
legislative judgment, as it did in the Omnibus Crime Control Act of 1968 by
providing that confessions could be admitted in federal court as long as
they were "voluntary" in light of all the circumstances.

The federal appeals court in Richmond ruled last February that the 1968
law, usually known as Section 3501, for its designation under Title 18 of
the United States Code, was a valid substitute for the Miranda rules in
federal court because the rules themselves, in the appeals court's view,
were not required by the Constitution. A case-by-case inquiry into whether
a confession was voluntary would essentially return the law regarding
police interrogations to where it was before the court decided Miranda v.
Arizona in 1966.

As any viewer of television crime shows has known for a generation, the
Miranda decision required the police to warn suspects in custody, before
questioning could begin, that they had the right to remain silent; that any
statement they made could be used as evidence against them; that they had
the right to have an attorney present; and that if they could not afford a
lawyer, one would be appointed.

In the intervening 33 years, the Supreme Court has declined to extend
Miranda and has permitted the indirect use of some statements obtained in
violation of the decision. But despite occasional criticism from individual
justices, most notably Justice Antonin Scalia, there is little sense that
the current court is poised to overrule the decision. The decision to take
the case, at the urging of the Justice Department, more likely reflects the
court's view that the issue is important rather than that the appeals court
was correct.

While Chief Justice Earl Warren's majority opinion clearly viewed the
warnings as a means of enforcing a defendant's Fifth Amendment right
against compelled self-incrimination, the 5-to-4 decision was not without
ambiguity. "Congress and the states are free to develop their own
safeguards for the privilege, so long as they are fully as effective," the
opinion said.

The path the Miranda case has taken back to the court after 33 years is an
unusual one.

Through seven administrations, Republican and Democratic, the Justice
Department has regarded Section 3501 as almost a sport, refusing to invoke
it as the basis for admitting a confession obtained without Miranda
warnings. Nor has any administration asked the Supreme Court to overturn
the Miranda decision.

During the last few years, however, conservative law enforcement groups
have tried to force the Clinton Administration's hand by appearing as
"friends of the court" in various prosecutions to argue that Section 3501
had in fact superseded Miranda. That is how the question was inserted into
the government's prosecution of Charles T. Dickerson.

Dickerson, a resident of Takoma Park, Md., who was charged in 1997 with
participating in the robbery of a bank in Alexandria, Va., challenged the
use of statements he had made to two agents of the Federal Bureau of
Investigation who had not first read him his Miranda rights. The federal
district court in Alexandria agreed with him and suppressed the statements.

An assistant United States attorney in Alexandria then took the unusual
step of asking the district court to reconsider, arguing that the
statements had been made voluntarily and so were admissible under Section
3501. The district court denied the request on the ground that the federal
rules of criminal procedure did not permit reconsideration in the absence
of new evidence.

At that point, with an appeal pending before the United States Court of
Appeals for the Fourth Circuit, in Richmond, the Justice Department became
involved in the case and, continuing longstanding department policy,
decided against raising Section 3501 as an issue on appeal. Instead, the
government argued that Dickerson had waived his Miranda rights during an
earlier period of questioning.

With no party in the case to press Section 3501, the Fourth Circuit, which
has a reputation as one of the most conservative and activist of the
federal appeals courts, permitted a conservative policy group that had been
advocating on the issue to enter the case. The Washington Legal Foundation
argued that Section 3501 had effectively overturned Miranda in federal
courts and that the only question was the voluntariness of Dickerson's
statements.

The Fourth Circuit agreed. The legal presumption created by the Miranda
decision, that a confession obtained without the warnings was not a
voluntary confession, was not required by the Constitution and Congress was
free to overrule it, the appeals court said.

The 2-to-1 majority also lobbed several grenades at the Justice Department.
"Even where the parties abdicate their responsibility to call relevant
authority to this court's attention, they cannot prevent us from deciding
the case under the governing law simply by refusing to argue it," Judge
Karen J. Williams wrote for the panel. The full appeals court then refused,
by a vote of 8 to 5, to reconsider the panel's decision.

Dickerson's appeal to the Supreme Court, Dickerson v. United States, No.
99-5525, filed in July, presented the Clinton Administration with the
politically delicate task of formulating a response. The Supreme Court
extended its deadline twice as debate continued inside the administration
and within the cadre of federal prosecutors.

Finally, on Nov. 1, the solicitor general's office filed a brief urging the
justices to hear Dickerson's appeal and to use the case not to overrule
Miranda but to reaffirm it as a decision that "has come to play a unique
and important role in the nation's conception of our criminal justice
system." Attorney General Janet Reno took the unusual step of adding her
name to the brief filed by Solicitor General Seth P. Waxman, as a signal
that the brief expressed administration policy at the highest level.

In its legal analysis, the brief argued that the Miranda rules "have a
constitutional foundation" and "cannot be superseded merely by
legislation." The brief also said that the decision had proven workable in
practice and had made law enforcement officials' lives easier by providing
a clear standard.

With no party to defend the statute, the court on Monday named Paul G.
Cassell, a law professor at the University of Utah, to argue on behalf of
the constitutionality of Section 3501.

Cassell, a former law clerk to Chief Justice Warren E. Burger, has made a
career of arguing that Miranda should be overruled. In a brief he filed
with the court on behalf of the Washington Legal Foundation, offering to
argue on behalf of the statute, he said that "many dangerous criminals are
escaping justice in the teeth of a federal statute that would permit their
successful prosecution."