Miranda, the constitution, and congress

Michigan Law Review

Volumn 99, Issue 5, 2001, Pages 958-974

  Strauss, David A ^a  

^a NONE

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EID: 0042703973     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290523     Document Type: Article

References (56)

1. New York v. Quarles, 467 U.S. 649, 654 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)); see also Oregon v. Elstad, 470 U.S. 298, 306, 307 (1985) (Miranda "sweeps more broadly than the Fifth Amendment itself"; "Miranda's, preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm"); Davis v. United States, 512 U.S. 452, 457-58 (1994); Withrow v. Williams, 507 U.S. 680, 690-91 (1993); Duckworth v. Eagan, 492 U.S. 195, 203 (1989); Connecticut v. Barrett, 479 U.S. 523, 528 (1987).
2. 120 S. Ct. 2326 (2000).
3. Id. at 2334.
4. Id. at 2334 n.5.
5. Id. at 2329.
6. Id. at 2336.
7. Id. at 2337 (Scalia, J., dissenting).
8. The dissent's formulation is misleading because even under Miranda, what the Constitution (arguably) prohibits is the admission into evidence of statements obtained by custodial interrogation without warnings. It seems doubtful that questioning a suspect in custody without warnings would violate the Constitution if the statements were never used as evidence, unless the interrogation were in some other way abusive. See, e.g., Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 MICH. L. REV. 1121, 1159 (2001). The Self-Incrimination Clause of the Fifth Amendment by itself does not forbid the government to compel answers to questions; indeed the government often does so, when it immunizes witnesses and requires their testimony before grand juries, for example. The Fifth Amendment is violated when compelled statements are admitted into evidence against the speaker in a criminal prosecution. The question about Miranda is whether it violates the Constitution to admit into evidence, in a criminal prosecution, statements obtained from the accused by custodial interrogation conducted without warnings.
9. Oregon v. Elstad, 470 U.S. 298, 306 (1985).
10. Dickerson, 120 S. Ct. at 2338 (Scalia, J., dissenting).
11. This distinction between "Marbury-shielded constitutional exegesis" and "congressionally reversible constitutional law" is the basis of the important article by Henry P. Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 31 (1975).
12. U.S. CONST. amend. V.
13. Only relatively straightforward, because there would still be a question whether a person is a "witness" in a criminal case when statements are obtained from him in an out-of-court interrogation and then admitted into evidence in the criminal prosecution. The definitive (affirmative) answer to this question is given in Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in CRIMINAL JUSTICE IN OUR TIME 1 (A.E. Dick Howard ed., 1965).
14. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 446 (1987), and Stephen J. Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 MICH. L. REV. 941, 951 (2001), for an argument that every statement obtained in violation of Miranda (or equivalent safeguards) is "compelled" within the meaning of the Fifth Amendment. Rightly or wrongly, however, the Supreme Court has not adopted this position.
15. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 446 (1987), and Stephen J. Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment Exceptionalism, 99 MICH. L. REV. 941, 951 (2001), for an argument that every statement obtained in violation of Miranda (or equivalent safeguards) is "compelled" within the meaning of the Fifth Amendment. Rightly or wrongly, however, the Supreme Court has not adopted this position.
16. The Miranda violation in Oregon v. Elstad was not too different from the hypothetical, at least if the testimony of the officer is credited: the suspect was questioned in his home, with his mother in a nearby room; it was not clear that he was under arrest; and, according to the officer, the incriminating statement (which was not a confession to a crime but only a statement that the accused was at the scene of the crime) was elicited not by a question but by the officer's assertion that he believed the accused was involved. 470 U.S. 298, 300-01 (1985).
17. For another statement of the arguments in the remainder of this section, see David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988).
18. See, e.g., United States v. Playboy Entm't Group, Inc., 120 S. Ct. 1878, 1888 (2000); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). The governing First Amendment principles are actually more complex than this. For example, content-based restrictions are treated differently if they restrict only low-value speech, or if they do not prohibit speech with a certain content but only deny it a subsidy. But the presumption against content-based regulation is unquestionably a central principle of First Amendment law.
19. U.S. CONST. amend. I. 19. Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536 (1980) (quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring)).
20. See Police Dep't v. Mosley, 408 U.S. 92 (1972).
21. Justice Scalia, the author of the Dickerson dissent, gives this as a reason that courts, in interpreting the Constitution, should try to eschew case-by-case approaches in favor of categorical rules. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1179-80, 1182-85 (1989).
22. 376 U.S. 254 (1964).
23. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).
24. 376 U.S. at 271-72 (quoting NAACP. v. Button, 371 U.S. 415, 433 (1963)).
25. Gertz, 418 U.S. at 342.
26. Dickerson, 120 S. Ct. at 2344-15 (Scalia, J., dissenting).
27. Oregon v. Elstad, 470 U.S. 298, 306, 308 (1985).
28. 417 U.S. 433 (1974).
29. 467 U.S. 649 (1984).
30. 470 U.S. 298 (1985).
31. Id. at 306. Harris v. New York held that statements obtained in violation of Miranda could be used to impeach a suspect. 401 U.S. 222 (1971). The Court did not explicitly rely on the distinction between "the Fifth Amendment itself and "prophylactic rules" in Harris, but it later treated Harris as support for the idea that Miranda established such rules. See, e.g., Elstad, 470 U.S. at 307.
32. For a valuable discussion of the relationship between the Miranda "exceptions" and prophylactic rules, see Susan Klein, Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030 (2001).
33. See, e.g., Elstad, 470 U.S. at 318.
34. See, e.g., Quarles, 467 U.S. at 657.
35. See Elstad, 470 U.S. at 308-09.
36. 120 S. Ct. at 2335.
37. Apparently, the Court itself began to speak of Miranda as an extraconstitutional decision in part because of the statement, in Miranda, that Congress or the states could displace the Miranda rules by equivalent legislation. See, e.g., Elstad, 470 U.S. at 306 n.1.
38. For a discussion of possible legislative responses to Miranda that reaches a similar conclusion, by a somewhat different route, see Michael C. Dorf and Barry Friedman, Shared Constitutional Interpretation, 2000 SUP. CT. REV. (forthcoming).
39. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 771-74 (1985) (White, J., concurring).
40. See, e.g., United States v. Morrison, 120 S. Ct. 1740 (2000); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999); City of Boerne v. Flores, 521 U.S. 507 (1997).
41. 521 U.S. 507 (1997).
42. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb et seq. (1994)).
43. 494 U.S. 872 (1990).
44. U.S. CONST. amend. XIV, § 5.
45. 521 U.S. at 519.
46. Id. at 520.
47. Id. at 532.
48. Id. at 519.
49. Id. at 529.
50. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST ch. 5 (1980).
51. The idea that legislation must be more closely scrutinized by the courts when it is directed at "discrete and insular minorities" is, of course, derived from United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938). For criticism, see, for example, Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
52. The idea that legislation must be more closely scrutinized by the courts when it is directed at "discrete and insular minorities" is, of course, derived from United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938). For criticism, see, for example, Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
53. The best-known statement of this position is Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). The Supreme Court explicitly adopted this approach in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-51 & n. 11 (1985). See also generally Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000) (arguing that informal political institutions protect federalism).
54. The best-known statement of this position is Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). The Supreme Court explicitly adopted this approach in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-51 & n. 11 (1985). See also generally Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000) (arguing that informal political institutions protect federalism).
55. For example, the Court has invalidated federal statutes that authorized searches that the Court considered unreasonable, without indicating that the legislative judgment was entitled to deference. See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973).
56. See, e.g., Turner Broad. Syst., Inc. v. FCC, 520 U.S. 180, 192-96 (1997).