High court debates whether we have right to remain silent

DAVID G. SAVAGE; Los Angeles Times

12/10/03

WASHINGTON - Government lawyers Tuesday urged the Supreme Court to give police more freedom to question suspects without first warning them of their right to remain silent, and most of the justices sounded as though they were inclined to do so.

"Miranda does not require officers to give the warnings," said Chief Justice William Rehnquist. "It is a conditional thing."

If an officer warns a suspect of his rights, and the suspect talks, his words may be used against him in court. But a failure to give the warning does not mean that all the evidence must be thrown out, he added.

Jill Wichlens, an assistant public defender from Denver, argued that the court's own opinions make clear that Miranda warnings are required, and the penalty for failing to warn suspects of their rights is that police and prosecutors may not use any confessions or evidence that they obtain.

The exchange came Tuesday as the justices heard arguments in two cases that could redefine the Miranda rules. Two veteran Justice Department lawyers and a Missouri state prosecutor urged the justices to adopt a scaled-down version of the Miranda warnings.

Under this approach, police would be free to question suspects without warning them of their rights. If the suspect confesses, the officer could then read the suspect his rights and ask that the confession be repeated.

Meanwhile, two public defenders called on the court to maintain the Miranda decision as a constitutional requirement for the police. They relied heavily on comments in the court's earlier opinions.

But on several occasions, justices interrupted to say that it is not what was intended.

Three years ago, Rehnquist wrote an opinion for the court upholding the 1966 decision in Miranda v. Arizona as having set a "constitutional rule" that could not be overturned by Congress. However, on Tuesday, he stressed that Miranda did not impose a constitutional "requirement" on the police.