The Statute that Time Forgot: 18 U.S.C. ? 3501 and the Overhauling of Miranda

Abstract

This article defends the Fourth Circuit's recent opinion in United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), which concluded that Congress had overruled Miranda by enacting 18 U.S.C. ? 3501. (It may be relevant to note that the author of this article was the attorney who argued for this result on behalf of an amicus in the Fourth Circuit).

Part I explores the almost-forgotten history leading to Miranda and the congressional reaction reflected in ? 3501. Part I reports, apparently for the first time, some of the details of the investigation of Ernest Miranda's crimes, as recounted by the detective who interrogated him. It then briefly reviews the Supreme Court's decision in Miranda and the congressional response in ? 3501.

Part II turns the claims of the Clinton Justice Department and its academic supporters that the Department's recent refusal to defend ? 3501 accords with long-standing Justice Department policy. In fact, the well-settled policy of the Department was to defend the statute, a litigation posture that had even produced a favorable reported appellate decision in the Tenth Circuit. The Clinton Administration recently reversed this venerable position, apparently over the objections of career prosecutors.

Part III explains why the Fourth Circuit in Dickerson correctly concluded that ? 3501 is constitutional. Two arguments strongly support this result. First, as explained in Dickerson, Congress has the power to override the mere "prophylactic" Miranda rules pursuant to its undoubted power to establish rules of evidence for federal courts. Second, an independent argument leads to the same conclusion. Section 3501, considered not by itself (as its critics are wont to do) but as part of a full package of measures covering questioning by federal police officers (such as tort actions, Bivens actions, criminal prosecutions, and internal administrative sanctions against federal agents who coerce confessions) is a reasonable alternative to the Miranda rules.

A final objection raised by the Department and the critics of the statute is that ? 3501 need not be defended because federal prosecutors can prevail even laboring under the Miranda exclusionary rule. This argument wrongly diverts focus away from the cases at which ? 3501 was targeted: those in which, as in Dickerson, dangerous criminals would be set free were Miranda applied.