Miranda, Dickerson, and the Problem of Actual Innocence. (Commentary)

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In Miranda v. Arizona, the Supreme Court held that the self-incrimination clause of the Fifth Amendment ("no person shall be compelled in any criminal case to be a witness against himself") requires that an individual who is subjected to custodial police interrogation "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of a lawyer, either retained or appointed," and that "the defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." (1) To provide the necessary incentive for police to abide by its ruling, the Court also adopted the exclusionary rule that any testimonial evidence resulting from the interrogation of a suspect who had not been given the relevant warnings could not be admitted into the prosecution's case against him. (2) In a string of post-Miranda cases (including Michigan v. Tucker, (3) New York v. Quarles, (4) and Oregon v. Elstad (5)), the Court characterized the "Miranda warnings" as mere prophylactic, and not in themselves constitutionally mandated, measures designed to safeguard every defendant's exercise of the right against compelled self-incrimination. (6) Although some constitutional scholars expected that it might find a way to use these precedents to overrule Miranda, the Court expressly declined to do so in the recently decided Dickerson v. U.S. (7) But the Court's decision in Dickerson rested largely, if not entirely, on the rationale of stare decisis, and (as Justice Scalia rightly pointed out in his dissent) did not attempt to find an underlying rationale that would reconcile Miranda with Tucker, Quarles, or Elstad. Finding and defending such a rationale is what I propose to do. Interestingly, it will turn out that the needed rationale provides constitutional support for strengthening Miranda, rather than merely accepting the decision as is.

Before Brown v. Mississippi, (8) the Court had argued that confessions were admissible only if they were voluntary. The primary rationale for the voluntariness test was that involuntary confessions were inherently untrustworthy, and were likely to lead to the conviction of innocent persons. Then, in Brown, the Court held that the due process clause of the Fourteenth Amendment ("nor shall any state deprive any person of life, liberty, or property, without due process of law") entailed the inadmissibility of involuntary confessions. But as the Court recognized in many of its subsequent decisions, the primary values behind the due process clause relate to the fair and reasonable treatment of defendants. In such cases as Ashcraft v. Tennessee (9) and Watts v. Indiana, (10) the Court invoked the principle that coercive police tactics contradict the ideals of fairness and personal integrity, so in Rochin v. California it was able to state that "use of involuntary verbal confessions in state criminal trials is constitutionally obnoxious not only because of their unreliability." (11) Finally, in Rogers v. Richmond, the Court concluded that coerced confessions were inadmissible under the due process clause "not because such confessions are unlikely to be true, but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitional system." (12)

Before Miranda, the Court relied on a similar (though somewhat different) voluntariness test to exclude confessions extracted in federal cases in violation of the Fifth Amendment. Federal judges evaluating the admissibility of confessions were asked to look to the "totality of circumstances" of interrogation to determine whether the accused had been "compelled" to incriminate himself. Then, after having established in Malloy v. Hogan (13) that the self-incrimination clause of the Fifth Amendment is incorporated in the due process clause, the Court repudiated the "totality of circumstances" test, replacing it in Miranda with the revolutionary "bright line" exclusionary rule founded on the four warnings described above. …