Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law

By Primus, Eve Brensike | Boston University Law Review, May 1, 2017 | Go to article overview

Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to Counsel as a Tool for Regulating Confession Law


Primus, Eve Brensike, Boston University Law Review


INTRODUCTION

Fifty years after Miranda v. Arizona,1 many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections.2 Miranda warnings are only required when a suspect is in custody and is being interrogated,3 but the Supreme Court has interpreted custody so narrowly that the police can easily avoid triggering application of the Miranda doctrine by simply telling a suspect that he is free to go4 or suggesting that he "volunteer" to come to the police station for questioning. 5 And police questioning is not always interrogation. There are routine booking questions,6 questions that do not ask for incriminating information, 7 and questions addressed to public safety concerns,8 none of which trigger the required Miranda warnings.

Even when the police must give warnings, they need not read the actual Miranda warnings. Any words that are close enough to reasonably convey the concepts in the Miranda warnings will suffice.9 Once those words are uttered, waiver will be presumed from the mere fact that the suspect then gives a statement, assuming that the police do not beat the suspect or do something particularly egregious to coerce him into talking.10

A person who wants to assert her Miranda right to an attorney must do so clearly and unequivocally; saying that she thinks she wants a lawyer is not good enough and will allow the police to keep questioning her.11 If she wants to invoke her right to remain silent, she cannot do that by remaining silent.12 She has to actually speak and clearly state that she wants to be quiet or the police can keep questioning her.13 Even a person who is able to overcome the fear and intimidation of the environment and clearly assert her rights is not entitled to end the questioning; she only gets a brief respite before the police will return to start the inquisition again.14

To make matters worse, there are myriad incentives for the police to violate a suspect's rights under Miranda. They can use any statements that they get from the suspect to impeach her if she dares to testify at trial,15 and if they are lucky enough to discover physical fruits as a result of her statements, those will be admissible to prove the State's case at trial.16 For these reasons, officers are often trained to question "outside Miranda."17 In other words, they are told to ignore the Miranda rights and just question suspects until they get a confession or learn about the location of physical fruits of the crime.18

Many scholars have mourned this dilution of suspects' Miranda rights.19 Even Yale Kamisar, the father of Miranda himself and one of its most fervent supporters, has lamented that the Miranda doctrine has taken "a bullet in the shoulder"20 and suffered a "heavy blow"21 as a result of recent Supreme Court decisions.

One underappreciated aspect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel. There are three different constitutional provisions that regulate pretrial police interrogation practices-the Due Process Clause's voluntariness test,22 the Sixth Amendment right to counsel, 23 and the Fifth Amendment privilege against selfincrimination. 24 The Supreme Court's blockbuster Miranda decision brought the Self-Incrimination Clause to center stage and relegated the due process and Sixth Amendment right to counsel tests to supporting roles. To accomplish this Fifth Amendment revolution, the Miranda Court integrated its Sixth Amendment precedent into the decision and included an admonition of the right to counsel in its famous Miranda warnings.25 As a result of this entanglement, much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases.26 This development is unfortunate given that the Fifth Amendment Miranda right and the Sixth Amendment right to counsel have different foci and serve different purposes. …

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