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Will the Supreme Court Remain Silent on Florida Miranda Case?

By Ashby Jones

If police have a suspect in custody, and tell him that he has a right to talk to a lawyer before being questioned, is that enough to satisfy the right-to-counsel warning that is required by Miranda v. Arizona (1966)?

The above question is ripped from the top of a recent blog post, penned by Lyle Denniston, over at Scotusblog. On first glance, given what we remember of the Fifth Amendment jurisprudence, we’d probably answer yes to the question. But according to Scotusblog, other courts have answered no, and that could give the U.S. Supreme Court the ammunition it needs to revisit the Miranda decision, out of which spun the now-iconic “you have the right to remain silent . . . ” speech.

The latest court to have amped up the Miranda requirements on police officers: the Florida Supremes. In this decision from last September, the Florida court ruled, in Denniston’s words, that “it is not enough merely to tell a suspect that his right to a lawyer applies before he is asked any questions by police. Rather, it must tell him explicitly that he has a right to have that lawyer with him while the questioning proceeds.”

The defendant in the case, who was ultimately convicted on gun-possession charges, was given, in part, this Miranda ruling: "You have a right to talk to a lawyer before answering any of our questions." The defendant agreed to talk to the authorities, and then provided an incriminating statement. He appealed his conviction, challenging the adequacy of that warning.

The Florida Supremes called the warning “misleading,” adding: “The warning said 'before answering any questions.' The 'before questioning' warning suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning." That, it said, is a direct violation of the Supreme Court's Miranda decision.

Will the Supremes hear the appeal from the Florida case? Denniston points to several clues indicating the answer might be yes.

On his Simple Justice blog, attorney Scott Greenfield takes up Denniston’s post, and pushes it further, in rather provocative fashion. Writes Greenfield:

Lyle’s post got me thinking. Given that Miranda was made up from whole cloth in the first place, essentially a Supreme Court Justices vision of good stuff to say to make clear to the subject of an interrogation that he really, really should keep his mouth shut, and given that it’s turned out to be a boon to the police and failed miserably to fulfill its purpose for defendants who simply cannot control the compulsion to have noise emit from their yaps, what if we had a shot at reinventing Miranda?

Greenfield offers up a host of possible changes to Miranda to the Supremes if and when they do reconsider the ruling in full. A couple:

If you want to exercise your right to an attorney, the only thing you need to say to me is “I want an attorney now” and I will stop the interrogation until you have an attorney to represent you.

Say something different, however, and I will continue to interrogate you.

No matter how good your story is, I am not going to let you go afterward.

LB readers, any thoughts about Miranda? Do you agree with the Florida Supreme Court’s take in its recent case?

Full post as published by Law Blog - WSJ.com on April 06, 2009 (boomark / email).