Trimming Miranda

The fondest hope of many a Warren Court critic has been that the Burger Court would overturn the 1966 Miranda decision. That momentous piece of "strict construction" requires police to inform suspects of their rights to silence, to a lawyer--and to free counsel if they are indigent; it also bars the use in court of any statement obtained without a reminder of those rights. But instead of reversing Miranda outright, the new majority has opted for trimming, undercutting or blunting its reach.

In recent years the court has held that an improperly obtained confession can be used to attack the credibility of a defendant who takes the stand to deny his guilt. It has also upheld a defendant's guilty plea, even though he did not know that the confession he had given was inadmissible at a full trial. Last week the court nibbled at Miranda again.

Accused Rapist Thomas W. Tucker had been told of his rights to silence and counsel--but not that he could have a court-appointed lawyer if he was unable to pay for one. His interrogation came before the Miranda decision. His trial came afterward, and none of his statements at the time of arrest were introduced. But damaging evidence came from a witness who, Tucker had told his police questioners, was a friend who would corroborate his alibi. Tucker's attorneys argued that the name of the witness had been obtained as the "fruit" of the improper interrogation and so should be barred.

Speaking for the majority, Justice William Rehnquist declared that the law "cannot realistically require that policemen investigating serious crimes make no errors whatsoever." Barring Tucker's statements at the trial was a sufficient response to the police failure to tell him he could have a free lawyer. The testimony of Tucker's friend, Rehnquist concluded, could properly be used because it served the trial purpose of discovering the pertinent facts. Moreover, banning the testimony was not likely to deter similar police misconduct in the future, since the police misconduct in this case preceded Miranda.

In dissent, William Douglas protested that a defendant's constitutional rights could not be brushed aside by such a weighing of competing interests. He pointed out that each of the Miranda warnings had been held "fundamental with respect to the Fifth Amendment privilege" against selfincrimination. The present court may not be willing to declare itself openly hostile to Miranda, but it clearly no longer considers the prescribed warnings as rock-hard fundamentals of American justice.

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