The Supreme Court Displays Its Hostility to Miranda

by Jack E. Call, Retired Professor of Criminal Justice, Radford University, E-mail:

Section 1983 to Title 42 of the United States Code provides that any person acting under color of state law who subjects a person or “causes [a person] to subjected … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for that deprivation by the person whose rights were violated.  This provision of law is well known to people who work in the criminal justice system, because it is not uncommon for police officers, prison and jail employees, and other criminal justice personnel to be sued under this statute.  The suits brought under this statute are often referred to as “Section 1983 suits.”  The Supreme Court recently decided an important issue arising under §1983.

               In 1966, the Supreme Court decided Miranda v. Arizona.[1]  That case held, of course, that before subjecting a person in custody to interrogation, the police must inform the suspect that they have a right to remain silent and a right to consult an attorney and have that attorney present during the interrogation.  In addition, the suspect must be told that if they cannot afford an attorney, one will be provided by the state, and anything the suspect says to the police may be used against the suspect at a subsequent trial. On June 23, 2022, as the Court was winding down its 2021-22 term, it ruled on whether a person who was subjected to interrogation and not informed by the police of the four rights required by Miranda can be sued for that failure under Section 1983.  The Court held that the Miranda violation may not the basis for a §1983 lawsuit.

               The Court’s opinion was written by Justice Samuel Alito, who wrote for a 6-Justice majority.[2]  Justice Kagan wrote a dissenting opinion, joined by Justices Breyer and Sotomayor. 

The Court’s ruling and rationale is nicely summarized near the end of the majority opinion:

What all this boils down to is basically as follows. The Miranda rules are prophylactic rules that the Court found to be necessary to protect the Fifth Amendment right against compelled self-incrimination. In that sense, Miranda was a “constitutional decision” and it adopted a “constitutional rule” because the decision was based on the Court’s judgment about what is required to safeguard that constitutional right. And when the Court adopts a constitutional prophylactic rule of this nature, Dickerson concluded, the rule has the status of a “La[w] of the United States” that is binding on the States under the Supremacy Clause 4 (as Miranda implicitly held, since three of the four decisions it reversed came from state court, 384 U. S., at 491–494, 497–499), and the rule cannot be altered by ordinary legislation.

               The Court is clearly correct in noting that several prior decisions of the Court referred to the Miranda rules as prophylactic rules.  The Court briefly discusses those cases (of which there is a substantial number).[3]  This is not news to students of the Supreme Court law on interrogations, nor is it something that the Court has not dealt with in the past.  The Court dealt directly with the significance of its characterization of the Miranda rules as prophylactic rules in Dickerson v. United States.[4]  The disagreement between the six Justices in the majority and the dissenters in Teko revolves around their understanding of what the Court held in Dickerson.  Therefore, it seems prudent to discuss that case in some detail.

               Dickerson was charged with bank robbery and other related offenses under federal law.  When he was interrogated by FBI agents during their investigation, the agents did not properly mirandize Dickerson.  The U.S. Attorney prosecuting the case argued that there was no violation of Miranda.  After Miranda was decided in 1966, Congress passed a statute[5] that was clearly designed to overturn Miranda.  The statute indicated that a confession was inadmissible only if it was obtained through coercion, i.e., involuntarily.  Under the statute, whether a suspect was advised of the rights required by Miranda was only a factor to be considered by courts in making the coercion determination.  However, the U.S. Attorney declined to argue in reliance on this statute that, even if Miranda was violated, Dickerson’s statement was not obtained through coercion and was therefore admissible at trial.  The refusal to rely on the statute was presumably based on a determination by the U.S. Attorney that the federal statute attempting to overturn Miranda was unconstitutional because a decision of the Supreme Court interpreting the Constitution may not be overturned by statute.

               In Dickerson, the Court was forced to confront two contradictory things that it had been saying about Miranda over the years.  As we have seen, in a significant number of cases, the Court had referred to the Miranda rules as prophylactic rules that were not required by the Constitution itself.  The apparent basis for this stance was that, while Miranda was grounded on the 5th Amendment prohibition on self-incrimination, that provision only prohibits compulsion.[6]  A confession obtained without proper Miranda warnings could be voluntary, in the traditional legal sense of the word.  However, if these prophylactic rules are not required by the Constitution, how could the Court require the states to follow them, as it had done in case after case?  The Supreme Court cannot require the states to follow rules of criminal procedure that it finds merely desirable – only those rules that are required by the Constitution. 

               Dickerson resolved this dilemma by concluding that the Miranda rules are “constitutional rules,” are “constitutionally based,” and have “constitutional underpinnings.”  Therefore, the states must follow them.  It bears mentioning that the Dickerson opinion was written by Chief Justice Rehnquist, who had also written some of the opinions that had referred to the Miranda rules as prophylactic rules.[7]

               The Tekoh opinion concluded that “the Court [in Dickerson] made it clear that it was not equating a violation of the Miranda rules with an outright Fifth Amendment violation.”  Therefore, Tekoh could not assert a violation of § 1983 by asserting that his right against self-incrimination had been violated.[8]

               If you find this analysis by the Court a bit confusing, that does not seem surprising.  This parsing by the Court between constitutional rights on the one hand and constitutional rules designed to protect a constitutional right on the other is the kind of fine distinction that only lawyers could appreciate (and not all lawyers at that).  It comes across as an artificial distinction at best and a mere device for further undermining Miranda without explicitly overturning it at worst.

               Of course, the dissenters take issue with the majority’s approach.  The heart of their argument is that even if “Miranda extends beyond – in order to safeguard – the Fifth Amendment’s core guarantee … Miranda is enforceable through §1983.  It remains a constitutional rule, as Dickerson held (and the majority agrees).  And it grants the defendant a legally enforceable entitlement – in a word, a right – to have his confession excluded.  So, to refer back to the language of §1983, Miranda grants a ‘right[ ]’ ‘secured by the Constitution.’”

               Are there other ramifications stemming from the Tekoh opinion?  One clear implication is the obviously hostile attitude that the majority displays toward Miranda itself.  It requires no stretch of the imagination to conclude that the majority of the present Court is not a fan of that case.  Given its willingness to overturn long-established precedent, as demonstrated by its recent reversal of Roe v. Wade,[9] it would not be shocking to see the Court accept a case that would give it the opportunity to overturn Miranda.  However, even this conservatively active Court probably realizes that overturning a great deal of long-established precedent runs a substantial risk of creating a public perception that the Court is simply just another political body that is willing to use its power to establish rules that it finds more desirable than previously established rules of the Court.  Most students of the Supreme Court believe that this perception is something that the Court traditionally has tried to prevent.  There is no reason (yet, at least) to think this Court would feel any differently.

               In any event, the risks associated with overturning Miranda seem unnecessary, even from the perspective of a Court that is hostile to that case.  The Court has demonstrated hostility to that case for quite some time.  Miranda still requires that any statement made by a suspect in custody as a result of interrogation conducted with advising the suspect of his rights is inadmissible at his trial.  (And the Court in Vega reaffirms that right).  However, the statement may be used to impeach the testimony of the suspect at trial.[10]  Evidence obtained by the police as a result of a Miranda violation will rarely be excluded.[11]  While the police are required to cease an interrogation when a suspect asserts his right to consult an attorney, the suspect’s assertion of that desire must be clear and unequivocal.[12]  Similarly, the police must cease an interrogation if the suspect invokes his right to silence, but the assertion of that right must also be clear and unequivocal.[13]  The police need not advise a suspect in custody of his rights at all if there is a need to obtain evidence critical to protection of the public.[14]  This is not the time or place for a complete discussion of the Miranda case law, but it seems fair to say that the Court has seriously undermined the significance of Miranda, by limiting both the scope of the Miranda rules and their impact when the rules are violated by the police.  Given, then, the emasculation of Miranda, why should the Court risk public criticism by overturning it?

               While these (and other) decisions have greatly reduced the impact of Miranda, it is important to remember that the voluntariness doctrine is still alive and well.  While looking online for reactions to the Tekoh decision, I came across this comment:  “police officers who violate your Miranda rights win as a result of the Supreme Court’s decision. The reason why is simple: You can’t sue if they force you to confess to a crime you didn’t commit.”  This statement misconceives the impact of Tekoh.  The voluntariness doctrine pre-dates Miranda

Beginning with Brown v. Mississippi in 1936,[15] the Supreme Court has held that statements made involuntarily to the police (i.e., through the use of coercive tactics) are inadmissible in state trials.  The Court has consistently reaffirmed this doctrine over the years and applies it not only to the use of physical force to obtain confessions, but also to the use of psychological tactics that are used to overcome a suspect’s “will to resist.”  The Miranda rules are an alternative means of suppressing a confession; they did not supplant the voluntariness doctrine.  Thus, if the police “force you to confess to a crime you didn’t commit” it would constitute a violation of the voluntariness doctrine.  That would clearly be a violation of the right against self-incrimination and could be the basis for a §1983 lawsuit.

               Vega v. Tekoh is an important decision.  It demonstrates a continuing hostility to Miranda v. Arizona by the Court.  It also greatly reduces the incentive for the police to comply with the Miranda rules.  Combined with the cases discussed above that limit the scope and impact of Miranda, the police have little to lose by not complying with the rules established by Miranda.  What’s more, given the recent history of the Court’s treatment of Miranda, there seems to be little reason to think that this situation is likely to change any time soon.


[1] 384 U.S. 436 (1966).

[2] Justice Alito was in the news a great deal as the last term of the Court ended.  He also wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___ (June 24, 2022), the case that overturned Roe v. Wade.

[3] See the end of section II.B in the Court’s opinion for a list of cases.

[4] 530 U.S. 428 (2000).

[5] 18 U.S.C §3501.

[6] The relevant language from the 5th Amendment state that no person “shall be compelled in any criminal case to be a witness against himself.”

[7] The Court also declined in Dickerson to overturn Miranda, indicating that the rule was too firmly entrenched in the law to justify overturning it, even though Chief Justice Rehnquist seemed to imply that he would not have favored establishing the rules required by Miranda if the Court was addressing the issue as an initial matter.

[8] The Court also noted that “[t]his conclusion does not necessarily dictate reversal [of the lower court decision] because a §1983 claim may also be based on ‘the deprivation of any rights, privileges, or immunities secured by the …. laws.’”  While it can be argued that even though the Miranda rules are not required by the Constitution, they nevertheless are laws of the United States, the Court declined to permit a Section 1983 claim on this basis as well.  It came to this conclusion by weighing the costs and benefits of permitting the claim, deciding that the benefits of permitting the claim “would be slight” and “the costs would be substantial.”

[9] Dobbs v. Jackson Women’s Health Organization, ___ U.S. ___ (June 24, 2022).

[10] Harris v. New York, 401 U.S. 222 (1971).

[11] In other words, the Court has essentially determined that the fruit of the poisonous tree doctrine, which applies in cases of 4th Amendment violations, does not apply to Miranda violations.  See Michigan v. Tucker, 417 U.S. 443 (1974) (a witness against a defendant obtained as a result of a violation of Miranda may testify against the defendant at his trial); Oregon v. Elstad, 470 U.S. 298 (1985) (an incriminating statement by made a suspect who was not properly advised of his rights by the police is admissible at trial if made after being properly advised of his rights); and U.S. v. Patane, 542 U.S. 630 (2004) (a piece of physical evidence found by the police as a result of a statement made by a suspect who had not been properly advised of his rights is admissible at the suspect’s trial).  The only clear exception to this refusal to apply the fruit of the poisonous tree doctrine to Miranda violations is where the second statement, obtained after advising the suspect of his rights, came after the police intentionally declined to advise the suspect of his rights when the interrogation began. Missouri v. Seibert, 542 U.S. 600 (2004).

[12] Davis v. U.S., 512 U.S. 452 (1994).

[13] Berghuis v. Thompkins, 560 U.S. 370 (2010).

[14] New York v. Quarles, 467 U.S. 649 (1984).

[15] 297 U.S. 278 (1936).