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2004 Stories

Speaking Out on Miranda: Supreme Court Decision Caps Decade-Long Effort

“You have the right to remain silent,” starts the warning officers are required to give prior to questioning a suspect, according to the Miranda. But staying quiet is something Professor Charles Weisselberg was unable to do. For 10 years, he has worked in collaboration with students and alumni to study, write and litigate about police interrogation techniques designed to side-step the requirements of Miranda.

On June 28, 2004, the U.S. Supreme Court issued its decision in Missouri v. Seibert, castigating police for deliberately seeking to circumvent Miranda and citing articles and cases on which the Weisselberg team has worked.

Weisselberg’s efforts to ensure the proper use of the Miranda rule began in 1994, when Los Angeles public defenders told him they were seeing an increase in cases with deliberate Miranda violations. Weisselberg, who was then teaching at the University of Southern California Law School, investigated these violations with his students and a team of civil rights lawyers. They uncovered numerous examples of questioning “outside Miranda,” as the practice was known in the law enforcement community. A year later they filed a federal civil rights lawsuit, California Attorneys for Criminal Justice (CACJ) v. Butts, seeking to end the practice. During discovery in the case, they obtained training materials promulgated by various law enforcement agencies, showing the practice was widespread.

Work on CACJ v. Butts came to Boalt in 1998, when Weisselberg was hired to direct the Center for Clinical Education. Victoria Wong ’99, a student under his supervision in what was Boalt’s Federal Practice Clinic, argued the case in the 9th Circuit and won. The Court ruled that officers who deliberately violate the rights protected by Miranda are not entitled to qualified immunity, and the lawsuit later settled.

In recent years, amicus curiae briefs were filed by Weisselberg and his student and alumni colleagues in a number of leading interrogation cases, including: People v. Peevy; People v. Storm (with clinic students Lexi Hazam ’01 and Joshua Lerner ’01); People v. Neal (with research assistant Craig Sieverding ’04); and Dickerson v. United States. On behalf of CACJ, Weisselberg and his students also drafted legislation to stop the training of officers to violate Miranda. Clinic student Jennifer Cartee ’02 testified in support of the legislation, which passed the California State Senate, but not the Assembly.

In the latest case, Missouri v. Seibert, detectives arrested Patrice Seibert for an arson murder. They interrogated her in the middle of the night without giving warnings until she said she participated in the offense. Then officers gave her Miranda warnings and had her repeat what she had already told them. The state trial judge excluded the unwarned statement from evidence but admitted the subsequent warned statement. The case went on to the U.S. Supreme Court. The briefs emphasized the deliberate misconduct and argued that prior Court decisions had created unacceptable incentives for officers to violate Miranda. Weisselberg and George Cumming, Jr., ’67 submitted a brief on behalf of a group of distinguished former prosecutors and judges.

The Court ruled that Seibert’s second, warned statement should not have been admitted into evidence. Specifically noting the widespread practice of violating Miranda, Justice Souter’s plurality opinion cites training materials and two of Weisselberg’s articles. In addition, it criticizes “[s]trategists dedicated to draining the substance out of Miranda.” Justice Kennedy concurred, writing that “[t]he Miranda rule would be frustrated were we to allow police to undermine its meaning and effect.”

The cited articles focus on police interrogation practices. In “Saving Miranda,” published in the Cornell Law Review, Weisselberg discussed the theory of police interrogation and the purpose of the Fifth Amendment and Miranda. The article is the first academic work documenting the training and practice of questioning “outside Miranda.” He followed with “In the Stationhouse After Dickerson,” published in the Michigan Law Review, reporting the results of a study of police training materials obtained from agencies throughout California.

“Miranda provides appropriate protections for the privilege against self-incrimination,” says Weisselberg, “but it’s not a tenable rule if courts tolerate deliberate disobedience of it.”

Now that a landmark decision has been made on the Miranda rule, Weisselberg says he is enormously gratified. He and a student will now study interrogation practices and how officers will be trained after Seibert.

























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