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No Anticipatory Invocation of Miranda, Says Penn. Sup. Ct.

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By Mark Wilson, Esq. on May 29, 2015 3:52 PM

Ever since Miranda v. Arizona, the right to remain silent, and its companion, the right to have an attorney present during questioning, has been walked back both by the U.S. Supreme Court and various state supreme courts.

Earlier this week, the Pennsylvania Supreme Court ruled that a person can't invoke his Fifth Amendment right to counsel under Miranda in anticipation of police questioning. Along with a recent decision of the California Supreme Court, Pennsylvania's decision moves Miranda's temporal period in favor of the police.

The Miranda Deception

A day after Dennis Bland's arrest in Florida for a murder in Philadelphia, his father notified the Defender Association of Philadelphia. A lawyer there faxed a letter to Bland's Florida defense attorney, containing a "very clear putative invocation" of Bland's right not to be questioned without an attorney present. Bland signed the letter.

Notwithstanding the letter -- which was sent to Philadelphia police -- Bland was questioned and ultimately confessed to the murder. The Pennsylvania Supreme Court reversed the trial court and appellate court, which had both said Bland's confession should be suppressed.

Even though Miranda itself states that interrogation must stop when a suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking," the court in this case did what many courts since have done: Disassemble Miranda and then reassemble it into something that looks the same, but performs different functions. Our modern Miranda rule is the result of the same process that occurs when you lose the assembly instructions for Ikea furniture.

Timing Decisions

The court returns to first principles, asking, "Why do we have Miranda warnings?" The answer, of course, is to guard against the coercive environment of interrogation. From there, the majority finds an solution to this case: Where there is no interrogation, there can be no coercion; or, in the words of President Judge Stevens, who dissented in the appellate court, "The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against."

So no interrogation, no Miranda. The majority here signaled quite clearly that it was fully on board with the U.S. Supreme Court's narrowing of Miranda (although Miranda's "narrowing" amounts to broadening of police authority). Justice Debra McCloskey Todd, however, dissented, questioning whether the Supreme Court actually narrowed Miranda; that proposition's evidence lies in a footnote in a case from 1991, McNeil v. Wisconsin.

The court's approach provides tremendous incentives for prosecutors to push charging decisions as far into the future as they can -- that's when the more robust Sixth Amendment right to counsel attaches, and its protections aren't rooted in prophylaxis, but in a constitutional mandate that requires no further justification. Law enforcement officials are thus free to time their actions not around judicial efficiency, but around maximizing their ability to obtain statements that are not protected by Miranda.

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