Taking Miranda's Pulse

Article excerpt

The period from May 2003 through June 2004 was one of the most active periods for the law of self-incrimination since Miranda was decided in 1966. This Article focuses on three cases from that period - Missouri v. Seibert and United States v. Patane from 2004, and Chavez v. Martinez, decided in 2003. These cases, along with the blockbuster from 2000, Dickerson v. United States, demonstrate what has been happening to the Court's self-incrimination jurisprudence. It is the Article's thesis that although the Court is purporting to rest these decisions on the Self-Incrimination Clause of the Fifth Amendment, what the Court is really doing when it decides whether to extend or limit Miranda is employing traditional due process analysis. The Article assesses Miranda's health as a result of these decisions and concludes that it is the traditional due process principles that have become central to keeping Miranda contained that also keep the decision alive.

I. INTRODUCTION

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966.2 In this Article, we consider three of those five cases-Chavez v. Martinez,3 Missouri v. Seibert4 and United States v. Patane5-along with the blockbuster decision four years ago in Dickerson v. United States.6 in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify where the Court is going, they do make it plainly clear where the Court is not yet willing to go. As unsatisfactory as this may be to the purists on both sides of the Miranda controversy, this most recent set of self-incrimination cases demonstrates that a solid majority of the Court, anchored by Justices O'Connor and Kennedy, is willing to keep the Miranda rule pretty much where it has been mired for almost forty years: with its head in a constitutional never-never land but its feet firmly planted in a majority of the Court's apparently unshakable view of the realities of police interrogation.

By continuing to treat Miranda's core as a decision under the Self-Incrimination Clause of the Fifth Amendment, but analyzing its extensions and limitations using the tools of due process, these new cases also confirm that the Court intends to continue to confound these two very different constitutional principles. Ironically, that continued confounding will insure Miranda's continued survival, because, as these new cases illustrate, due process principles keep Miranda contained but they also keep it alive.

II. BIRTH AND EARLY CHILDHOOD

For 175 years, the Supreme Court interpreted the Fifth Amendment's Self-Incrimination Clause to mean nothing more than what it says: namely, that criminal defendants cannot be compelled to testify in their own criminal proceedings.7 "Proceeding" meant the criminal trial in question.8 "Compelled," in the context of testimony,9 meant that a defendant could not be held in contempt for refusing to testify; there was no "right to remain silent," only the right not to be held in contempt if one chose to remain silent.10

Both of these pillars of limitation came crashing down in 1966 with the Court's decision in Miranda v. Arizona.11 In a 5-4 decision, the Court held for the first time that the Self-Incrimination Clause operated in the stationhouse and not just in the courthouse.12 The Court also held for the first time that confessions would be deemed "compelled" for self-incrimination purposes, and therefore inadmissible, if they were obtained without first advising the suspects of their "right to remain silent," of a new Fifth Amendment right to counsel,13 and of the rest of the now famous litany of mandatory advisements.14

The Court's interpretation was not only an unprecedented stretch of the language of the Self-Incrimination Clause,15 it was also done in the face of a long history of judicial supervision of the problem of coerced confessions, first under the common law and then under the Due Process Clauses of the Fifth and Fourteenth Amendments. …