Two Cheers for Miranda

By Steiker, Carol S. | Boston University Law Review, May 1, 2017 | Go to article overview

Two Cheers for Miranda


Steiker, Carol S., Boston University Law Review


"An understanding of the nature and setting of . . . in-custody interrogation is essential to our decisions today."

-Miranda v. Arizona, 384 U.S. 436, 445 (1966).

Many commentators, including some of the contributors to this Symposium, have few kind words for Miranda, either as a decision or as a body of doctrine operationalized in the world.1 I, however, come to praise Miranda, not to bury it.2 But I invoke (and invert) Marc Antony's speech because my praise is tempered by some reservations and worries about the very quality that I claim to endorse.

What is the quality that I come to praise? I take no position here on Miranda as a constitutional doctrine or on its effects within the criminal justice system, the topics of much of the critical commentary over the fifty years since the landmark decision. Rather, my praise is "meta" in that it is methodological: I cheer the Miranda Court's direct and unapologetic attempt to understand policing in its then-present context, to ground its decision in facts about how police officers were actually operating and what was happening behind the closed doors of the interrogation room. It is the way that the Miranda Court approached its task of constitutional interpretation, rather than the result that the Court reached, that I seek to highlight and praise.

Context matters for all constitutional interpretation, but there are few if any areas in which it matters more than in the constitutional regulation of the police. Law enforcement practices are continually evolving, and their impact on individuals and communities is immense. Yet police departments are often opaque institutions whose internal workings and policies are not easily accessible. Any attempt to apply the very general terms of the Bill of Rights, which forbid "unreasonable" searches and seizures and "compelled" selfincrimination, should proceed grounded in a realistic assessment of current police practices and their likely effects.3

The need for contextual engagement in constitutional interpretation regarding police practices may seem obvious, but it is not widely recognized or endorsed by courts. In what follows, I will contrast Miranda with two other Supreme Court decisions that illustrate two of the most common noncontextual approaches to regulating police practices. I will then highlight the desirable features of Miranda and offer some examples of other judicial opinions that employ Miranda's contextual approach. I will conclude by explaining why I withhold a third cheer for Miranda. I will raise some concerns that the Miranda contextual approach engenders-concerns that do not change my bottom line, but that courts and litigants should nonetheless recognize and respond to in individual cases.

I. Noncontextual Approaches to Police Practices

I start with a disclaimer: Although I am a former public defender and a criminal-justice liberal, I do not promote contextual constitutional adjudication with a covert ideological goal. It is not necessarily the case that Miranda's contextual approach will benefit defendants challenging the constitutionality of police practices more often than noncontextual approaches. Deeper engagement with the context of policing may underscore the importance of the law enforcement goals served by challenged police practices or the lack of alternative means to secure those goals, thus benefiting the prosecution rather than the defense. Similarly, noncontextual approaches may establish bright-line rules that benefit defendants rather than the prosecution. Thus, to illustrate noncontextual approaches to the constitutional regulation of the police, I have chosen two contrasting opinions, one that rules in favor of the defendant and one that rules in favor of the prosecution.

Let us start with the Supreme Court's opinion in favor of the defendant in Arizona v. Hicks.4 In that case, police officers responded to a report that a bullet had been fired from the defendant's apartment through the floor, injuring a person in the apartment below. …

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