The Rise, Decline, and Fall (?) of Miranda

By Kamisar, Yale | Washington Law Review, December 2012 | Go to article overview

The Rise, Decline, and Fall (?) of Miranda


Kamisar, Yale, Washington Law Review


I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED? ....................967

II. CONFUSION OVER, AND RESISTANCE TO, MIRANDA ....................970

III. THE POLITICIANS GET INTO THE ACT ....................972

IV. PRESIDENT NIXON NOMINATES WARREN BURGER TO BE CHIEF JUSTICE ....................975

V. PRESIDENT NIXON NOMINATES WILLIAM REHNQUIST TO BE ASSOCIATE JUSTICE ....................978

VI. CHIEF JUSTICE BURGER AND JUSTICE REHNQUIST ADMINISTER THE FIRST BLOWS TO MIRANDA: THE HARRIS AND TUCKER CASES ....................980

A. Harris v. New York.................... 980

B. Michigan v. Tucker ....................984

VII. "PROPHYLACTIC RULES" VS. CONSTITUTIONAL RULES ....................991

VIII. THE COURT WEAKENS THE EDWARDS RULE ....................995

IX. THE COURT DISPARAGES MIRANDA: QU ARLES AND ELSTAD.................... 997

X. WHAT WAS THE MIRANDA COURT TRYING TO DO? ....................1000

XI. THE STRANGE CASE OF DICKERSON V. UNITED STATES ....................1002

XII. BERGHUIS V. THOMPKINS: THE COURT INFLICTS A HEAVY BLOW ON MIRANDA ....................1008

A. Must the Police Obtain a Waiver of Rights Before Interrogation Commences?.................... 101 1

B. The Implications of Miranda's Concern About the "Compelling Atmosphere" of Police Interrogation ....................1014

C. What Likely Takes Place in the Interrogation Room? ....................1015

D. "Waiver by Confession".................... 1018

XIII. ALTERNATIVES TO MIRANDA ....................1021

A. Should We Provide Custodial Suspects More Protection than Miranda Does (or Ever Did)? ....................1022

B. Should We Give Up on Miranda and Reinvigorate the Old Due Process/'Totality of the Circumstances"/"Voluntariness"Test? ....................1024

C. Is the Best Solution Interrogation by, or in the Presence of, a Magistrate or Other Judicial Officer? ....................1032

A FINAL REFLECTION ....................1038

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying - or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing.3

This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED?

Why was the "Miranda fence" erected? Because the "fence" it replaced - the due process/"totality of circumstances"/"voluntariness" test - proved to be "an inadequate barrier when custodial interrogation was at stake."5 As the "voluntariness" test evolved, the terms typically used in administering it (e.g., "voluntariness," "coercion," "breaking" or "overbearing" the will) became increasingly unhelpful. They did not focus directly on either of the two grounds for excluding confessions: (a) their untrustworthiness or (b) disapproval of the methods used by the police in obtaining them.6

Nor is that all. As Stephen Schulhofer has observed, because of its sponginess and "subtle mixture of factual and legal elements,"7 the preMiranda test "virtually invited" trial judges to "give weight to their subjective preferences" and "discouraged active review even by the most conscientious appellate judges."8

"Given the Court's inability to articulate a clear and predictable definition of 'voluntariness,' the apparent persistence of state courts in utilizing the ambiguity of the concept to validate confessions of doubtful constitutionality, and the resultant burden on [the Court's] own workload,"9 it is hardly surprising that in 1966 what might be called the "voluntariness fence" was finally torn down in favor of a new one.

If a picture is worth a thousand words, perhaps the same can be said for a specific case and its graphic details. I am not going to return to the 1930s and 40s, when police interrogators sometimes resorted to the whip or the rope. …

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