But an innocent person who is held for questioning would have no right and no remedy, she said.
Two years ago, the high court took up a well-publicized challenge to the Miranda decision and ultimately refused to overturn it. Rehnquist, a longtime critic of Miranda, surprised many by writing the decision for the 7-2 majority.
But his opinion did not describe the Miranda decision as limiting the police. Instead, he said it means that some incriminating statements "may not be used as evidence in the prosecution's case."
Former Los Angeles prosecutor Steven Clymer, now a Cornell University law professor, said the Martinez case will decide "what Miranda really means on the street. I think the court will say it is OK for the police to violate Miranda. You are not violating the Constitution when you ignore Miranda," he said.
That will affect how police behave, he said. "If the guy says, 'Stop, I don't want to talk,' or he says, 'I want to see a lawyer,' you [as a police officer] aren't going to get anything out of him," he explained. If the officer continues the questioning and pressures the suspect, he or she may learn valuable information, such as facts about the crime, the location of a weapon or the names of other suspects or witnesses. All this information can be used against the suspect, even if incriminating statements cannot be used at a trial.
"If you're the officer, you look at the costs and the benefits," Clymer said. And many police officers will decide it is better to ignore the suspect's right to remain silent than to respect it, he said.
Clymer, who has an article in the Yale Law Review next month titled "Are Police Free to Disregard Miranda?" said the Supreme Court would be "more honest if it just overruled Miranda."
Such an outcome would surprise many.
"A generation of Americans have been brought up with the belief that we have a right to remain silent," said Ben Wizner of the ACLU of Southern California.
Los Angeles lawyer R. Samuel Paz, who is representing Martinez, said he is surprised by the strange turn in the case.
"They are taking a radical position," Paz said of Oxnard's lawyers. If they are right, it "would permit officers to engage in the most egregious and abusive conduct in violation of decades of 5th Amendment jurisprudence," he wrote in his brief to the court.
Although most lawyers who have followed the case think the Rehnquist court will overrule the 9th Circuit and side with Oxnard, some think the brutal shooting will cause several justices to hesitate.
