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About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life.

In Moran v. Burbine, a six to three majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (1) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (2) because the police failed to inform the suspect of the attorney's efforts to reach him.

Although Burbine has been criticized by a number of commentators, I think it is a plausible and defensible reading of Miranda. I find it hard to believe that the Miranda Court would consider the now-familiar warnings inadequate when-even though a suspect has been warned of his or her Miranda rights and has effectively waived them-a lawyer whose services the suspect has never requested and whose existence the suspect is unaware of had contacted the police on his or her behalf.

Whether or not I am right, more important than Burbine's specific holding, I think, is the way the Court that decided Burbine looked back at and characterized Miranda. Justice O'Connor spoke for six Justices (including Chief Justice Burger and soon-to-be Chief Justice Rehnquist) when she told us that Miranda "as written" struck "the proper balance" between law enforcement interests and a defendant's Fifth Amendment rights

Unlike most critics of the landmark case, the Burbine Court viewed Miranda as a case that "embodies a carefully crafted balance designed to fully protect both the defendant's and society's interests." The Burbine Court also reminded us that Miranda had rejected "the more extreme position" advocated by the ACLU that nothing less than "the actual presence of a lawyer" (as opposed merely to police warnings to a suspect about his rights) is needed to dispel the coercion inherent in custodial interrogation. Instead, the Miranda Court had concluded, to quote the Burbine Court again, that "the suspect's rights could be adequately protected by less intrusive means.

Until this point, neither Justice O'Connor nor any of the Justices who joined her opinion in the Burbine case could be called friends or admirers of Miranda. Nevertheless, what they had to say about Miranda was what most of Miranda's supporters had been saying about the case for the previous twenty years.

There is another noteworthy event hat, I believe, provides a useful background for the Rehnquist Court's treatment of Miranda. This event started out quite ominously for the famous case but ultimately turned out well.

Some four months after Justice Rehnquist had become Chief Justice, a division of the Department of Justice released a 120-page report endorsed by Attorney General Edwin Meese Ill, a report that sharply attacked Miranda as an illegitimate decision. Shortly thereafter, "Meese's minions," as then Solicitor General Charles Fried called them, took up the cry and "proclaimed it a Department objective to get the Supreme Court to overrule Miranda."

As Professor Stephen Schulhofer notes, the Meese-endorsed report on the law of pretrial interrogation "triggered a spate of new articles confirming support for Miranda in the law enforcement community."11 As for Attorney General Meese's campaign inside the Department of Justice against Miranda, Solicitor General (now Massachusetts Justice) Fried resisted on various grounds. For one thing, "not a single Justice had indicated any interest in overruling Miranda, while the substantive law [ confining the Miranda rule] was getting better and better." Moreover, Fried's impression was that "most professional law enforcement organizations had learned to live with Miranda, and even to love it to the extent that it provided them with a safe harbor."

After considering Solicitor General Fried's objections, the Attorney General backed off. For the rest of Fried's time in office, "the Miranda issue was laid to rest." I think it no exaggeration to say that the time to overrule Miranda had come and gone.


Reproduced by permission of Oxford University Press.