Miranda

In the following I am looking at Justice Scalia's remarks in a supreme court decision from 2000, Dickerson v. United States, and their implied sense of what the Miranda v. Arizona majority is up to--specifically, his sense of what Miranda wanted to keep out of the courts, the self-exposure in confession. In this, I don't seek to defend Scalia's remarks so much as use them as a description: I don't think Miranda is hostile to confession, but perhaps only, rightly, to the impulse to confess which is somewhat different and does not necessarily imply guilt. I don't think Scalia, moreover, is really defending some notion of this human tendency (in the oppressive atmosphere of the police station) for self-exposure from the Miranda court. He's rather just opposing what Miranda rightly defends: a very clear process of taking-up the suspect into a system that "can and will use" anything this suspect says against her:

Scalia in his dissent in Dickerson is making a case that goes back to Harlan’s and Clark’s dissents in Miranda v. Arizona, that basically says a totality of the circumstances test is enough to govern the admissibility of statements produced by interrogation; and that what Miranda’s majority does by pushing so hard on the 5th Amendment’s bar on self-incrimination is install, though the notion that warnings are required to guarantee freedom from self-incrimination, certain unrealistic standards of voluntariness for these statements (“‘voluntariness’ in a utopian sense,” says Harlan). Scalia, right before the passage I want to consider, accordingly claims that,

there is simply no basis in reason for concluding that a response to the very first question asked, by a suspect who already knows all of his rights described in the Miranda warning, is anything other than a volitional act (p.5).

In other words, if the suspect is made aware of everything that a Miranda warning is supposed to give the suspect through a process based on the totality of the circumstances test (here, in Dickerson, through a process outlined in Congressional legislation—§3501), though not in the form of a warning, the requirement of voluntariness would be satisfied without warnings coming into play. But what is betrayed by Scalia’s way of putting this is the faith that Scalia has in the suspect’s ability to resist what the Miranda majority deemed coercive. So if the suspect is made aware of his rights without an explicit warning, for Scalia this is all that is really needed to prevent the suspect from being coerced. What the suspect “already knows” has that sort of force, or rather that sort of integrity. Thus if the suspect is subsequently persuaded by the police to give up her right to remain silent, then just as their prior resistance was voluntary or uncoerced—that is, was a decision based on what they already knew—so too their giving into this persuasion is voluntary:

Nonthreatening attempts to persuade the suspect to reconsider that initial decision [to remain silent] are not, without more, enough to render a change of heart the product of anything other than the suspect’s free will (p. 6).

This leads Scalia to make the point that I want to emphasize:

Thus, what is most remarkable about the Miranda decision […] is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. (p. 6).

Scalia then significantly quotes from United States v. Washington (1977), which says:

Far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable (qtd. on p. 6).

What Scalia offers us here is an interesting reading of Miranda’s decision. To him, the majority in Miranda thought that without a warning, the suspect would not be able to act volitionally on the basis of a knowledge of their rights. It conceived volition, moreover, as something that would not tend to give into persuasion by the police without giving up its voluntariness, or turn into an act under compulsion. And this means that it did not think this moment of giving up something, of admission of something, of confession to something could be made on the basis of that knowledge of one’s rights. The Miranda decision thinks that acts of confession come from somewhere else than where knowledge and volition based on knowledge reside, as Scalia conceives both these terms, and that entering this area is unacceptable for the law, as it is used in the hands of the police. In other words, Scalia concludes that court there was deliberating about whether statements coming out of that particular area are precisely things that the Constitution (and I’d add the law more generally) should consider “inherently desirable.” The “hostility to confession per se” that Scalia finds in the Miranda decision is really an answer of no to that question: the law should not find that area desirable, or itself be compelled towards practices that produce statements out of that area. Statements can come out of that area, yes. But it is not the ultimate aim of the law to be drawn there.
Following Scalia’s remarks, I might sketch out a reason why: because this area, as it is conceived by the Miranda decision, is one where what the individual has to admit is outed in such a way that it places the burden of this exposure, not on the law and its procedures, but upon that individual herself through an initiative to confess. In other words Miranda found distasteful one possible effect of legal procedure as it bears upon an individual: that it out what an individual has to say in such a way that it places the burden of this revelation, not through a process of establishing guilt systematically and through arguments that do not require the initiative of the suspect, but upon precisely that initiative—upon that “decision” based on what the subject, in Scalia’s words, “already knows.”
This, it seems, is the function of the Miranda warning, over and above any process of just making the subject aware of her rights: to eliminate the need for any initiative of the suspect in the process of producing statements that hover around the area of (but do not solely concern) their possible guilt. Knowledge of one’s rights should be so clear that it should eliminate all resistance to interrogation in the first place by, essentially, never letting interrogation touch the space in which the individual might feel certain statements should be, or will be, exposed. Doing so will keep the suspect away from a certain process of statement production—confession—that revolves around an initiative, or a will to speak—or, to put it in opposite terms, a capitulation of their will to resistance through silence. Again, at the same time, this keeps the law from becoming dependent upon this self-exposing (if not self-incriminating) behavior of the suspect, and keeps it within a process of exposure that is systematic and not confined, as it were, to the initiative of the suspect.
So legal procedure as a tool for individual’s self-exposure, as opposed to a tool for establishing guilt systematically and through arguments that do not require the initiative of the suspect—this is the sort of dystopic vision that the Miranda decision (in Scalia's view--and he thinks this is unfortunate while I think it is correct) sees on the horizon, and wants to avoid.