The Miranda “Revolution”
We have shown that, over the centuries, the confessions pendulum swung from permitting extreme coercion, or even torture, to the Hawkins-Leach dictum, and then to a rationalist model. Part of the fallout from the move to rationalism was the American third degree. We turn now to the United States Supreme Court doctrine that, with remarkable speed, moved back to a robust embrace of the Hawkins-Leach dictum, at least rhetorically. We saw the Court’s early confessions cases in chapter 4. Those were federal cases, where the Court could apply the common law rules or the Fifth Amendment privilege against compelled self-incrimination.
The Fourteenth Amendment requires states to provide “due process of law” before they “deprive any person of life, liberty, or property.”1 A state defendant can appeal to the United States Supreme Court claiming that his confession was admitted in error, thus denying him “due process of law.” But the Court was loathe to intervene in state criminal processes, as can be seen in its initial foray into the world of state court confessions cases. In 1907, the Court refused to review a claim that a confession was involuntary because it was made “while in the ‘sweat box’ of the St. Louis police department.”2 To be sure, the defendant’s lawyer did not properly preserve the federal claim, but the Court stated its holding in a way that seemed to preclude relief even to a properly pleaded claim: “[I] f, as decided, the admission of this testimony did not violate the rights of the plaintiff in error under the Constitution and laws of the state of Missouri, the record affords no basis for holding that he was not awarded due process of law.”3
The implication here, startling though it maybe to modern readers, is that the Fourteenth Amendment due process clause did not regulate the admission of confessions but only required that state law be fairly applied. Viewed through a 1907 lens, this is not as odd as it might seem. For over a century in England, as we have demonstrated, the admission of confessions was regulated by common law evidence rules. The Court in 1907 likely thought that common law was the vehicle for regulating interrogations that were not included within the ambit of