A Rejoinder to Professor Schauer's Commentary
Kamisar, Yale, Washington Law Review
It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last fourand-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/"totality of circumstances'V'Voluntariness" test.3 I also like what Schauer had to say about "prophylactic rules," a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the use of such rules is "ubiquitous in constitutional law"5 and "there is no special category of prophylactic rules The phrase 'prophylactic rule' is accordingly best seen as a simple redundancy, sort of like 'null and void.'"6
However, when Schauer maintains that (1) the right to remain silent "existed independently] of Miranda,"1 and that (2) "the right to counsel during interrogation" also "preceded Miranda ,"8 1 have to part company with him on both counts. (I readily admit that whether there was a right to counsel during interrogation prior to Miranda is a much closer question than whether there was a right to remain silent.) Much turns on what one means by "rights."
I. THE RIGHT TO REMAIN SILENT
Let us look first at the right to remain silent.
Schauer believes that Justice Frankfurter's 1949 plurality opinion in Turner v. Pennsylvania9 supports his view that the right to remain silent preceded Miranda by many years.10 At one point Frankfurter does say that Turner "was not informed of his right to remain silent until after he had been under the pressure of a long process of interrogation and had actually yielded to it."11 Schauer might have cited the 1963 case of Haynes v. Washington12 as well. In that case, too, writing for a 5-4 majority, Justice Goldberg noted that the defendant had never been "advised . . . of his right to remain silent."13
But what does it mean to say that even before Miranda one had a right to remain silent? In both the aforementioned Turner case and in Watts v. Indiana,1* a companion case to Turner, state law required that arrested persons be given a prompt preliminary hearing.15 However, neither in Indiana nor Pennsylvania (nor in the great majority of states) was this requirement taken seriously. Unless other circumstances added up to a deprivation of due process, the mere fact that an arrestee failed to obtain a prompt preliminary hearing did not keep out any resulting confession or incriminating statement.16 Did arrestees in these states have a right to a prompt preliminary hearing? I would answer in the negative. The police did not believe arrestees had such a right and they acted accordingly. Arrestees soon found out that, as a practical matter, the police's understanding of the situation was the correct one.
At no time prior to Miranda did suspects have a "right" to remain silent, at least as I define "right" and as I believe that term should be defined. It is plain that most suspects did not know they had such a right (or, to put it another way, did not realize that the police lacked any lawful authority to compel an answer). Moreover, the great majority of police officers did nothing to correct this misimpression.17 Nor is that all. The typical police interrogator proceeded as if he or she did have a right to an answer and would often persist in questioning suspects until some answers were obtained.
Against this background, I would maintain that in the years before the police were required to inform suspects that they had a right to remain silent - and the police did not have to do so until Miranda instructed them that, in the absence of other protective measures, they must do so - such a right did not exist. To put it somewhat differently, I would say that requiring the police to warn custodial suspects that they had a right to remain silent - which Miranda did for the first time - established such a right. …