You’d think that 43 years after Miranda was handed down, we’d have a very clear idea of what exactly it required police officers to advise a defendant before questioning.  After reading Monday’s oral argument in the Supreme Court on Florida v. Powell, maybe not.

Powell had made several incriminating statements to the Tampa police after they had read him his Miranda rights from the standardized form they use:

You have the right to remain silent. If you give up this right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

See a problem?   Well, the Florida courts did:  nowhere did the form include the statement that the lawyer could be present during any questioning.  Of the ninety jurisdictions in Floriday, only a handful don’t include that statement.  Complicating the matter is that the eight Federal circuits which have considered the question have split right down the middle, with four holding that a defendant must be expressly informed of the right to have the attorney present during questioning, while the other four found the warnings sufficient even when they didn’t include that explicit admonition.  The Supreme Court granted cert to clear the whole thing up.

The argument on Monday resulted in a parsing of the Miranda decision on a scale usually observed in rabbinical debates about the Talmud.  The Florida AG, backed up by the Solicitor General as amicus, argued that any reasonable interpretation of the wording would convey that a person had the right to speak to an attorney “before questioning” and to “use” that right during questioning.  Breyer pushed him relentlessly on this point, though, arguing that a defendant might also infer that such a procedure is similar to that employed in a grand jury setting:  the defendant can go out and talk to his lawyer during the session, but the lawyer isn’t allowed in.  That wasn’t the greatest argument — I think it’s safe to say that the average defendant isn’t aware of the intricacies of testifying before a grand jury — but Breyer had a better one in that the Miranda decision clearly held that “Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”

But, as might be expected, the situation’s a little more complicated than that.  Back in 1981, in California v. Prysock, the court observed that “no talismanic incantation” of the “precise formulation of warnings” is required, and reiterated that eight years later in Duckworth v. Eagan:  “We have never insisted that Miranda warnings be given in the exact form described in that decision.”  What’s more, while the warnings in both Prysock and Duckworth contained the language omitted in Powell – that the defendant had the right to have the attorney present during questioning — the failings in at least the latter were more egregious:  the defendant was told, “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”  The Court nonetheless held the warning sufficient.

The question of substantial compliance with Miranda is not limited to the Federal courts.  A couple of years ago I mentioned an Athens, Ohio, court decision  in which the judge had concluded that the warnings, which contained the statement that a lawyer “may be appointed to represent you” were insufficient because they conveyed to the defendant “that if he cannot afford a lawyer, it is possible that one will be appointed to represent him if he wishes” and that “it did not adequately convey the requirement that a lawyer must, or will, be appointed prior to questioning for an indigent defendant who so requests.”  I complimented the lawyer for the job he did in getting the judge to buy that.  Prematurely, it turns out; last year the 4th District reversed the grant of the suppression in State v. Ulery.  Other defendants have argued that the warnings were insufficient because of some other defect — such as that they didn’t advise him he could change his mind during the interrogation and shut up — usually to little avail.

So what’s going to happen in Powell?  I have a hard time believing that the Court took the case because of discrepancies in how Miranda warnings are given, only to say that there’s no problem with discrepancies.  How far they’ll go in clearing that up is another matter.  They might do something like adopt a standard form, like the one the FBI gives, as the model.  Of course, they did something very similar to that back in Miranda, stating that the FBI form was “consistent” with the warnings they prescribed in their decision.  And the FBI warnings at that time didn’t say anything about the attorney being present during questioning.