Academic journal article Northwestern University Law Review

Miranda's Hollow Core

Academic journal article Northwestern University Law Review

Miranda's Hollow Core

Article excerpt

Miranda v. Arizona1 is one of the most important decisions of the twentieth century. It revolutionized criminal interrogations and was part of a larger revolution in the nature of both the Supreme Court and the federal system generally. It took power out of the hands of state officials and deposited it in the hands of federal judges.2 It brushed aside risks to law enforcement as insufficient to offset the importance of the right to be free from compelled self-incrimination and the demand of equality.3 It also stimulated in part the counter-revolution in American politics that, for good or ill, began to rein in the Court and liberal politics more generally. The consequences of this development were seen in the 1968 election of Richard Nixon and the Court's decision that same year in Terry v. Ohio4 effectively announcing the end of the "procedural revolution."

The Northwestern University Law Review specifically, and the Northwestern University School of Law community more generally, played critical roles in the evolution of Fifth Amendment doctrine. John Henry Wigmore published a number of comments on the Fifth Amendment in the early days of the journal,5 comments that matured into his magisterial treatment of the Fifth Amendment in his treatise on Evidence.6 In the midsixties, Walter Schaefer, a member of this faculty prior to his appointment to the Illinois Supreme Court, argued against a Miranda-like ruling from the Supreme Court.7 Following in Dean Wigmore's footsteps, Fred Inbau was an early and forceful critic of Miranda8 and another Northwestern journal, the Journal of Criminal Law and Criminology, played an important role in airing the ensuing debate.9 During the decades of the 1980s and 1990s, the Law Review returned to the forefront when it published Joseph Grano's detailed and thoughtful reconsideration and rejection of Miranda's constitutional legitimacy10 and became the center of the storm over the empirical consequences of Miranda.11 The Northwestern University Law Review has been intertwined with, and played an important role in, mis critical debate, a history of which it can be justly proud.

It is considerably less clear that the legal system can be justly proud of the contours of the Fifth Amendment debate. There is a black hole at the center of the debate over the meaning of compelled self-incrimination that converts much of the almost century-old argument into incoherent gibberish, including the striking turn to a new direction that the Miranda court took. "Incoherent" is an often used, and just about as often misused, term in legal scholarship. It is often trotted out to demonstrate the speaker's rejection of a particular legal datum, such as an opinion or statute, thus actually being used to mean "inconsistent with my preferences" rather than "incapable of rational understanding, unintelligible, or incomprehensible." It is also frequently used to refer to some possible inconsistency in legal datum that is then exploited rather than cabined or given a generous reconstruction. This is not what I mean by "incoherent." I mean literally incoherent. The Miranda debate, and much that preceded it, is literally incoherent in that it makes no sense at all. The irony here is that Miranda exploited the apparent ambiguity and actual incoherence of its predecessor but replaced it with pure incoherence.

Interestingly, the incoherence at the heart of Miranda is virtually identical to that at the heart of the old common law test of voluntariness, yet the legal debate has proceeded as though oblivious to the point. Even more interestingly, the common law had begun to inch toward a resolution of the conceptual incoherence of the doctrine (without ever directly addressing the point) by shifting the debate from the voluntariness of a person's statement to the police practices that led to its being made. Had the echoes of rationality in the police practices approach to confessions been understood and developed, the legal system would not now find itself in the grip of one literally incoherent argument doing battle with another for supremacy. …

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