Miranda for the Next Fifty Years: Why the Fifth Amendment Should Go Fourth

By Dripps, Donald A. | Boston University Law Review, May 1, 2017 | Go to article overview

Miranda for the Next Fifty Years: Why the Fifth Amendment Should Go Fourth


Dripps, Donald A., Boston University Law Review


INTRODUCTION

This Article addresses two curious anomalies about Miranda v. Arizona.1 The first of these is that while Miranda has become a venerated landmark, etched, as Chief Justice Rehnquist said, into our national culture,2 the Miranda rules have remained a persistent subject of cogent criticism ever since the decision itself. The second thing I find curious was the gulf that emerged between the constitutional premises of the Miranda rules and the constitutional premises of search and seizure law.

What, I wonder, really is the difference between the "prophylactic rules" denigrated in the Miranda cases and the "bright-line rules" celebrated in the Fourth Amendment cases? And why has confessions law changed little, and in the general direction of reducing Miranda to the voluntariness test that goes back to the 1930s, while Fourth Amendment law has consistently adapted to technological, institutional, and social changes?

I connect these two motivating anomalies by applying Fourth Amendment jurisprudence to three common critiques of the Miranda rules. My thesis is that the Miranda rules should be reconceived along the formal lines of modern Fourth Amendment doctrine. Fourth Amendment doctrine displays, without apology, a strong, but nonconclusive preference for rules rather than standards. And Fourth Amendment law has responded to changes in the legal ecology in a way that the Miranda rules have not.

Critics have made three broad objections to the Miranda rules. First, formal critiques object to the Court's reversal of convictions because these convictions were obtained by violating a general rule intended to prevent constitutional violations in future cases.3 Call this the judicial legislation critique.

Other critics object to the Miranda rules not for being rules qua rules, but because they are not the right rules. Some have criticized Miranda as overinclusive, that is to say, for treating too many legitimate police tactics as unconstitutional.4 Call this second type of critique "Miranda went too far" or "handcuffing the cops."5

Still others argue that the Miranda rules are underinclusive, because they do not regulate noncustodial questioning, approve too casual a waiver process, and for the majority of suspects who do waive, leave the old voluntariness test pretty much as it was before.6 Call this third type of objection the "not far enough" critique or the "legitimation critique."

I make three related claims about the Miranda controversy. First, I echo prior defenders of Miranda by arguing that there is nothing illegitimate or even unusual about the Supreme Court declaring and enforcing rules of constitutional law that trump statutory law in some cases where there is no violation of the underlying constitutional right itself. I advance the debate by connecting Fifth Amendment and Fourth Amendment doctrine as a matter of form. In Fourth Amendment jurisprudence "bright line rules" are favored to guide the police and minimize the application of the exclusionary rule.

All rules are overinclusive or underinclusive of the policies they implement. There is no formal difference between Fourth Amendment "bright line rules" and Fifth Amendment "prophylactic rules." Formal critics of Miranda are therefore logically committed, in general, to resolving Fourth Amendment issues ad hoc based on the circumstances of each case.7 More specifically, formal critiques impugn the very foundations of Fourth Amendment law-the warrant requirement and the exclusionary rule.

Indeed, challenging the institutional competence, or even the constitutional authority, of the Supreme Court to issue constitutional rules for police casts a dark shadow on institutional reform injunctions issued by federal judges to reform local police departments. These injunctions really are judicial legislation-precise formulations of acceptable police practices tethered to specific accountability and enforcement policies. …

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