Academic journal article William and Mary Law Review

Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-but-Shallow

Academic journal article William and Mary Law Review

Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-but-Shallow

Article excerpt

The very first paragraph of the Supreme Court's much-awaited decision in Dickerson v. United States (1) declares that Miranda v. Arizona, (2)

   being a constitutional decision of this Court, may not be in effect
   overruled by an Act of Congress, and we decline to overrule Miranda
   ourselves. We therefore hold that Miranda and its progeny in this Court
   govern the admissibility of statements made during custodial interrogation
   in both state and federal courts. (3)

One might suppose that such a simple reaffirmation of the status quo would call for little scholarly comment. In the context of constitutional criminal procedure in general, and of Miranda in particular, however, there is nothing simple about reaffirming the status quo.

For a quarter of a century, some of the Court's cases have characterized Miranda's requirements as "not themselves rights protected by the Constitution" but instead as "measures to insure that the right against compulsory self-incrimination [is] protected." (4) More succinctly, Miranda was described as a mere "prophylactic rule." (5) The Fourth Circuit had concluded that, given this characterization of Miranda as prophylactic rather than constitutional, Title II of the 1968 Omnibus Crime Control and Safe Streets Act (6) (a congressional statute purporting to return to the pre-Miranda voluntariness test)was constitutional. (7) Complying with the statute, the court of appeals ruled that the district court should have admitted a statement obtained in violation of the Miranda rules. (8) The Supreme Court's Dickerson opinion rejected the Fourth Circuit's conclusion that Miranda was not a constitutional decision. (9) But the opinion did not repudiate prior cases admitting evidence derived from Miranda violations or allowing impeachment with Miranda-tainted statements, cases that were justified in large measure by the prophylactic-rules characterization.

Miranda's academic defenders had hoped that if the majority refused to overrule Miranda, the opinion might have restored the Warren Court's "original vision" of Miranda as a constitutional antidote to the per se compulsion attending custodial interrogation. (10) After Dickerson Miranda seems securely established in the constitutional order; the Court reaffirmed present law. But present law is itself unstable.

To take an example, in prior cases the Court has upheld the use of Miranda-tainted statements to impeach the testimony of defendants who elect to testify in their own defense. (11) Part of the justification for this impeachment exception was the theory that Miranda announced prophylactic safeguards rather than constitutionally required safeguards. (12) In contrast, when a defendant testifies after giving clearly compelled testimony before a grand jury under an immunity order, the Court has refused to permit impeachment with the compelled testimony. (13) Thus if Dickerson takes the stand at his trial on remand, he can be impeached with the very statement that the Court has just suppressed on the ground that the interrogation violated a "constitutional rule" derived from the Fifth Amendment. In effect, the same statement might be deemed compelled and not compelled in the same case.

The Justices are aware of their own precedents. The fact that Chief Justice Rehnquist, for decades an implacable critic of Miranda, (14) wrote the majority opinion, is more than one of those rich ironies with which our constitutional history abounds. It is also a sure sign of a compromise opinion, intentionally written to say less rather than more, for the sake of achieving a strong majority on the narrow question of Miranda's continued vitality.

Dickerson therefore qualifies as a "minimalist' opinion of the sort recently defended by Professor Cass Sunstein. (15) With many qualifications, Sunstein makes the case for judicial decisions that announce narrow rather than broad rules for the future, justified by particular considerations in the case at hand rather than by appeals to first principles or comprehensive general theories. …

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