Academic journal article St. Thomas Law Review

Regression to the Mean: How Miranda Has Become a Tragicomical Farce

Academic journal article St. Thomas Law Review

Regression to the Mean: How Miranda Has Become a Tragicomical Farce

Article excerpt


Fifteen years ago, when I wrote an article for a symposium issue of this journal, rhetorically entitled, Is Miranda Dead, Was It Overruled, or Is It Irrelevant?, (1) I harbored no pretensions that it would ultimately have any significant impact. My thesis in the article was that there was not "much left to Miranda--the patient [was] either on life support or clinically dead." (2) Since that time, much has been written about Miranda, including my revision of the article in a book I wrote on the Fifth Amendment, (3) as well as a scholar's argument intended to "save" Miranda, (4) and his forlorn conclusion a decade later "mourning" Miranda. (5) More importantly, the preeminent scholar in the field, Yale Kamisar, has recently written an article aptly titled, The Rise, Decline, and Fall (?) of Miranda. (6) Professor Kamisar argues that the United States Supreme Court has, in essence, overruled Miranda "piece by piece." (7)

What can we add to the debate over Miranda's fate that has not been rehashed by the best scholars in the field? In reflecting on this question, I harked back to a chapter in the path breaking book by the prominent economic scientist Daniel Kahneman, Thinking Fast and Slow. (8) In that chapter, Kahneman illustrates the operation of the principle of "regression to the mean." The concept, espoused by Sir Francis Galton in the late nineteenth century, is captured in the adage that "what goes up must come down." (9) Similarly, and by analogy, my central theme is that the Court's Miranda jurisprudence has regressed to the mean. Although the Court affirmed the "constitutional" import behind Miranda in the Dickerson (10) case, it has in the past fifteen years further dismantled the holding and its underlying tenets. In effect, Miranda has metamorphosed into a tragicomical farce. It is tragic because the Court has undermined the protections embedded in Miranda while simultaneously encouraging the deceptive interrogation procedures the Miranda majority condemned. It is comical because the Court has pretended to embrace the doctrine while simultaneously eviscerating its core principles.

This truism is confirmed by one of the most noted Miranda scholars, Professor Richard Leo. He has concluded that "[p]olice interrogation in the American adversary system is firmly rooted in fraud." (11) The process is a confidence game in which the police lie to the suspect and pretend to befriend him in an effort to wrest a confession. Although Miranda was designed to prohibit such "deceptive stratagems," (12) the Court has sanctioned, even implicitly encouraged, their use in its effort to whittle down the doctrine's core elements. Indeed, one scholar has documented the training of police officers to question "outside Miranda." (13) To a large degree, as David Simon has observed, the detective(s) conducting an interrogation have come to regard Miranda as little more than "simply a piece of station furniture." (14)

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on a Miranda waiver to establish the voluntariness of a confession.

With the benefit of hindsight, I suppose my arguments and conclusions, however prosaic, have stood the test of time. Indeed, it seems in retrospect that most scholars have arrived at the same place. Therefore, I hope to elaborate on the piece by focusing, in Part I, on a couple of cases which illustrate the U. …

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