You have the right to remain silent. Anything you do say may be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided to you.Most people, at least those who have ever watched a cop show, are probably familiar with the preceding warnings. For those who don't know, they come from the Supreme Court decision in Miranda v. Arizona, which said that the police must make sure people are aware of their rights so that police can't intimidate them into confessing.
On Wednesday the Supreme Court issued an opinion in Maryland v. Shatzer, which sought to explore exactly where Miranda ends. (SCOTUSBlog has coverage here.) The issue is with people who have requested a lawyer. Under Miranda and its follow-up cases, someone who has asked for a lawyer cannot be interrogated any longer until they have actually spoken to that lawyer. In other words, the police can't try to get someone to change their mind about wanting a lawyer.
In Shatzer, however, the person being interrogated had not be consistently held in custody. In fact, the interrogation happened about three years after Shatzer had asked for a lawyer. The government argued that, because there was a break in custody, the police should be allowed to interrogate Shatzer (understanding that when they approached him the second time, he waived his Miranda rights.)
The Court agreed. Unanimously. The opinion held that with a substantial break in custody, the police can restart an interrogation of a suspect who has previously asked for a lawyer.
The more interesting part of the judgment was only agreed to by seven of the nine justices. The seven justices agreed to define a specific time frame: once a suspect has been out of police custody for fourteen days, the police can interrogate them. How did the Court arrive at this magic number? Orin Kerr at Volokh puts it this way:
As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark. Jews started measuring seven days as a time period in the 6th Century BC; the Romans then adopted it, measuring time in 7-day weeks; and two-thousand-odd years later, on February 24, 2010, a majority of the Justices on the Supreme Court though that one of those was too short, three was too long, and two seemed about right. And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.In other words, the Court thought it would be good to have a number, and so settled on two weeks. But why did they need a specific rule? According to Kerr:
The police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do.Fair enough. We want to be able to write handbooks for police; we don't want police officers to have to go to law school. However, is it the Court's job to provide those clear rules for police? That's the problem I have with the entire line of Miranda cases. It's the Court's job to determine when the police have violated a suspect's constitutional rights; it's Congress's job to provide the police with clear rules to guide them.
In other words, instead of requiring a specific Miranda warning, the Court could have said that there is a presumption that defendants don't know their rights, and if they don't know their rights they can't be interrogated. This would have left it to Congress to determine how to best ensure that suspects know their rights, whether it be spoken warnings, written statements, etc. In Maryland v. Shatzer, the Court could have said that police can begin questioning again once a suspect has been out of custody long enough to eliminate all feelings of coercion. If Congress thought that the police needed a clearer rule, Congress could have provided.
Throughout the entire line of Miranda cases, the Supreme Court has been far to eager to provide clear rules to the police and has done so through turning itself into a quasi-legislative body rather than a judicial one.