WASHINGTON – Fair or foul?

Police fail to read a suspect his rights, but interrogate anyway and get a confession. If they then give the Miranda warnings and get a second confession legally, can they use it in court or is it tainted? What if they recover physical evidence from a suspect who hasn’t been read his rights? Or what if they intentionally dodge Miranda in an investigation? Can they use any of the evidence they recover, or is it all the fruit of a poisonous tree?

The Supreme Court will confront all of those issues in the term that begins Monday – one in which the court will hear important cases involving religious freedom, employment discrimination, political gerrymandering and states’ rights, in addition to three challenges to Miranda.

Unlike last term, which featured headline-grabbing cases on affirmative action, gay sex and Internet pornography, the new term’s docket is filled with more routine cases that deal with pressing – if not glamorous – constitutional issues. The biggest case, a challenge to the McCain-Feingold campaign finance reforms, has been argued and will be decided by year’s end.

“Anyone who follows the court knows that there’s kind of an ebb and flow to the kind of cases the court takes,” said Greg Coleman, who handles Supreme Court litigation at the Weil, Gotshal & Nangen law firm in Austin, Texas. “This isn’t the blockbuster year, because last year was. In my view, there are a great number of very important cases, they just aren’t the headline cases.”

Some court watchers say it’s too early to discount any possibility of this being a blockbuster term. The court has yet to decide whether to hear an appeal of a lower-court decision that said children can’t be forced to say the pledge of allegiance, and the normal course of American life always threatens to produce a case that needs to be heard quickly.

“You could have a hanging chads case emerge from the California primary on Tuesday,” said University of Pennsylvania law professor Nate Persily. “You just never know.”

The Miranda cases have criminal law experts paying close attention.

At issue in three cases to be heard in early December is whether authorities must jettison confessions or evidence they obtain after failing to advise suspects of their rights.

In one case, a Colorado man interrupted police while they were giving the Miranda warnings, then told them about an illegal weapon he had. In another, authorities in Nebraska got a confession from a suspect before they’d informed him of his right to an attorney. Later, they arrested him and read him his rights, then took a second confession that they used at trial against him. In a third case, police in Missouri purposely failed to read a suspect her rights, got a confession, then read her rights and taped a second confession.

All three cases test the court’s “fruit of the poisonous tree” doctrine, which says that any evidence acquired as the result of a constitutional violation must be jettisoned. The cases will force the court to clean up a discrepancy between two previous rulings. In Oregon v. Elstad, the court said confessions didn’t have to be tossed because of a Miranda violation, so long as they were not coerced. The justices said that was true because Miranda was not a hard and fast constitutional rule. But in Dickerson v. U.S., the court reaffirmed Miranda as a constitutional right.

“These cases are very, very serious threats to Miranda rights,” said University of Michigan law professor Yale Kamisar. “They’ll be determining whether Miranda means anything at all in these cases. If police can violate Miranda at will, and in one case, purposely, and still bring in evidence they got as a result of the violation, what good is it?”


The court will also deal with these pivotal cases this term:

In Locke v. Davey, the court will decide whether the state of Washington violated the First Amendment’s guarantee of religious freedom when it denied a scholarship to a college student because he planned to study theology at a Christian College. The case is a chance for the court to revisit the issue of public dollars for religious education, following its 2002 decision upholding the use of public school vouchers for religious schools.

In General Dynamics v. Cline and Raytheon v. Hernandez, the court will hear two employment discrimination cases with broad potential impact. The General Dynamics case tests whether the Age Discrimination Employment Act prevents companies from offering enhanced benefits to older workers. In the Raytheon case, the court must decide whether the Americans with Disabilities Act prevents companies from refusing to rehire employees who were fired for doing illegal drugs but who then completed rehabilitation programs.

“In both cases, the court will have to decide how you define classes of people who should be protected from discrimination,” said Coleman.

In several cases, including one to be heard Tuesday, the first day of oral arguments, the court will continue to draw distinctions between federal law and states’ rights. This is among the William Rehnquist court’s most active areas of litigation. This term, the justices will decide whether Tennessee violates the ADA by not providing handicapped access to all of its state court buildings and whether the 11th Amendment makes states immune from federally enforced consent decrees that they enter voluntarily.

In Vieth v. Jubilerer, a little-talked about case, the court will consider political gerrymandering for the first time since 1986. At issue is whether Republican Pennsylvania lawmakers violated the law when they redrew congressional districts that put Democrats at a serious disadvantage.

“The court has said you can violate the 14th Amendment if you draw districts too politically,” said Persily. “But it set the standard very, very high for proving those kinds of allegations, so it’s very unusual for them to have taken this case.”

Persily said if the court sides with Democrats in the case, it would “open the floodgates” for suits in just about any state where one party feels slighted by another’s redistricting plan.

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(c) 2003, Knight Ridder/Tribune Information Services.

AP-NY-10-05-03 1706EDT

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