The Miranda Case Fifty Years Later

By Kamisar, Yale | Boston University Law Review, May 1, 2017 | Go to article overview

The Miranda Case Fifty Years Later


Kamisar, Yale, Boston University Law Review


I. A LOOK BACK AT MIRANDA

A decade after the Supreme Court decided Miranda v. Arizona,1 Geoffrey Stone took a close look at the eleven decisions the Court had handed down "concerning the scope and application of Miranda."2 As Stone observed, "[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence."3 In the eleventh case, the Court excluded the evidence on other grounds.4 Thus, Stone noted, ten years after the Court decided the case, "the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda."5 Not a single item. To use baseball terminology, in Miranda's first eleven "at bats," it went zero for eleven.

For those of us who welcomed Miranda, this turned out to be deeply disappointing. But it would not have come as much of a surprise to those who remember the four Justices President Nixon appointed to the Supreme Court during his first term of office: Chief Justice Burger, Justice Blackmun, Justice Powell, and Justice Rehnquist.6

Before being appointed Chief Justice of the Supreme Court, then-Judge Burger of the Court of Appeals for the District of Columbia Circuit leftno doubt, both in his dissenting opinions7 and in public speeches,8 that he was extremely unhappy with the Warren Court's criminal procedure cases.9

Chief Justice Burger may have been the most police-friendly Supreme Court Justice of all time-only with the possible exception of another Nixon appointee, William Rehnquist.10 In fact, shortly after Rehnquist became Assistant Attorney General in charge of the Office of Legal Counsel, he urged the President to appoint a commission to consider whether such cases as Miranda needed to be corrected by a constitutional amendment.11

As for Justice Blackmun and Justice Powell, neither one's appointment to the Court should have come as much of a surprise either. Chief Justice Burger had recommended then-Judge Blackmun, a close friend since their childhood days, to President Nixon for a nomination to the Court.12 It was widely assumed that Justice Blackmun would follow the new Chief Justice's lead.13 As for Justice Powell, when the National Crime Commission issued its report in 1967, the future Justice turned out to be one of seven members of the Commission to sign a supplemental statement underscoring the need to return to the pre-Miranda "voluntariness" test14-even "[i]f, as now appears likely, a constitutional amendment is required."15

In retrospect, I think it is fair to say that Miranda never recovered from Nixon's four Supreme Court appointments.16

II. THE THREE DISSENTS IN MIRANDA

Returning to the case itself, four Justices wrote three separate dissenting opinions in Miranda.17 In one way or another, each dissent assumed that Miranda would be a criminal justice disaster-that very few suspects, if any, would waive their rights.

Justice Clark was the most senior Justice to dissent in Miranda, but he spoke only for himself. Justice Clark maintained that there was "no significant support" for the view that "the Fifth Amendment privilege, in effect, forbids custodial interrogation."18 This is an odd statement about Miranda-the majority never said anything like that-and it is unsupported by any plausible interpretation of the case. Rather, the majority in Miranda took some time spelling out what is, and what is not, "custodial interrogation."19 Shortly after Miranda was decided, it remained to be seen what impact it would have on custodial interrogation. But Miranda did permit some still-to-be-determined interrogation to take place.20

Justice Harlan, joined by Justices Stewart and White, wrote a long dissent.21 At one point, Harlan claimed (without any explanation) that "to suggest or provide counsel for the suspect simply invites the end of the interrogation."22 It is not at all clear what Justice Harlan meant.23

But, before getting to the final dissent, another word about the police and the right to a lawyer. …

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