Exporting and Importing Miranda

By Weisselberg, Charles D. | Boston University Law Review, May 1, 2017 | Go to article overview

Exporting and Importing Miranda


Weisselberg, Charles D., Boston University Law Review


Introduction

Miranda v. Arizona1 just had a milestone birthday. Perhaps the United States Supreme Court's best-known criminal procedure decision, it has been both revered and reviled for over fifty years. I am on record as an estranged former supporter. The Court established Miranda's regime of warnings and waivers of the right to remain silent and the right to counsel in order to protect suspects from compelled self-incrimination during police interrogation in violation of the Fifth Amendment.2 My own view is that Miranda does not provide meaningful protection for the Fifth Amendment privilege.3 One reason is that the Court has retreated from its original, more robust conception of Miranda and has weakened Miranda's safeguards.4 Another reason may be the difficulty of integrating Miranda's reforms into existing structures of our criminal justice system and our legal culture.5 Yet another explanation is a basic flaw in design: creating one-size-fits-all warnings and waivers simply cannot ensure that suspects-who have varying characteristics, vulnerabilities, and abilities-will all be empowered to choose between speech and silence during a pressure-filled interrogation.6 Whatever the explanation, when used as directed, Miranda now functions mostly as a "safe harbor" for police. If officers comply with its formalisms and obtain a statement, law enforcement can typically avoid a more searching inquiry into the voluntariness of the statement, and there is rarely a barrier to admissibility.7 I am hardly alone in voicing these criticisms of Miranda's practical operation during police questioning and in trial courts,8 which I refer to as Miranda "on the ground."

But despite Miranda's failings in protecting the Fifth Amendment privilege, there is no denying its superficial attraction. Miranda shines as a beacon. It is an icon. For the American public, at least, Miranda stands for justice. Miranda stands for fair play. It is a balm for much of our squeamishness about interrogation tactics because, after all, we do tell suspects that they can ask for a lawyer and do not have to speak. And, for courts and reformers, there is something irresistible about the concept of a simple set of procedures to let us avoid the messiness and discomfort of looking deep into the circumstances of a police interrogation and the psychological manipulation of a suspect.9 The late Chief Justice Rehnquist famously observed that Miranda warnings "have become part of our national culture."10

A significant number of nations have implemented or are implementing Miranda-like protections, with warnings of the right to remain silent or the right to retain counsel prior to police questioning. Researchers at the Library of Congress recently reported that warnings similar to Miranda are now required in 108 jurisdictions around the world.11 This Article seeks to investigate several aspects of this movement. What are different national justice systems seeking to accomplish through warnings or other procedures? How do these protections compare with Miranda? When mechanisms are put in place, are justice systems able to implement them effectively, and can other systems point the way to possible improvements in the United States?

Part I addresses aspects of criminal justice systems, legal culture, the function of interrogation, and conditions for reform, comparing Japan and the United States. The World Justice Project recently ranked the criminal justice systems in 113 nations by a variety of factors including: the effectiveness of investigations; whether the adjudicative process is impartial (i.e., free of corruption and improper government influence); and whether the correctional system reduces criminal behavior-all in addition to factors relating to due process of law and the rights of the accused.12 As these rankings illustrate, different nations face different challenges, and they may have varying goals in regulating police and prosecutors, if, indeed, they are regulated much at all. …

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