Miranda, Dickerson, and the puzzling persistence of fifth amendment exceptionalism

Michigan Law Review

Volumn 99, Issue 5, 2001, Pages 941-957

  Schulhofer, Stephen J ^a  

^a NONE

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EID: 0043205091     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290522     Document Type: Article

References (59)

1. 120 S. Ct. 2326 (2000).
2. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. REV. 387, 498 (1996).
3. Dickerson, 120 S. Ct. at 2335. The limitation, as originally stated in Miranda, is virtually identical: Any alternative must be "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it." Miranda v. Arizona, 384 U.S. 436, 467 (1966).
4. See, e.g., Cassell, supra note 2; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500 (1996) [hereinafter Schulhofer, Miranda's Practical Effect]; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV. 1084 (1996) [hereinafter Cassell, All Benefits, No Costs]; Stephen J. Schulhofer, Miranda and Clearance Rates, 91 Nw. U. L. REV. 278 (1996); Paul G. Cassell, Miranda's Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. PUB. POL'Y 327 (1997); Stephen J. Schulhofer, Bashing Miranda is Unjustified - and Harmful, 20 HARV. J.L. PUB. POL'Y 347 (1997) [hereinafter Schulhofer, Bashing Miranda].
5. See, e.g., Cassell, supra note 2; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500 (1996) [hereinafter Schulhofer, Miranda's Practical Effect]; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV. 1084 (1996) [hereinafter Cassell, All Benefits, No Costs]; Stephen J. Schulhofer, Miranda and Clearance Rates, 91 Nw. U. L. REV. 278 (1996); Paul G. Cassell, Miranda's Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. PUB. POL'Y 327 (1997); Stephen J. Schulhofer, Bashing Miranda is Unjustified - and Harmful, 20 HARV. J.L. PUB. POL'Y 347 (1997) [hereinafter Schulhofer, Bashing Miranda].
6. See, e.g., Cassell, supra note 2; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500 (1996) [hereinafter Schulhofer, Miranda's Practical Effect]; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV. 1084 (1996) [hereinafter Cassell, All Benefits, No Costs]; Stephen J. Schulhofer, Miranda and Clearance Rates, 91 Nw. U. L. REV. 278 (1996); Paul G. Cassell, Miranda's Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. PUB. POL'Y 327 (1997); Stephen J. Schulhofer, Bashing Miranda is Unjustified - and Harmful, 20 HARV. J.L. PUB. POL'Y 347 (1997) [hereinafter Schulhofer, Bashing Miranda].
7. See, e.g., Cassell, supra note 2; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500 (1996) [hereinafter Schulhofer, Miranda's Practical Effect]; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV. 1084 (1996) [hereinafter Cassell, All Benefits, No Costs]; Stephen J. Schulhofer, Miranda and Clearance Rates, 91 Nw. U. L. REV. 278 (1996); Paul G. Cassell, Miranda's Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. PUB. POL'Y 327 (1997); Stephen J. Schulhofer, Bashing Miranda is Unjustified - and Harmful, 20 HARV. J.L. PUB. POL'Y 347 (1997) [hereinafter Schulhofer, Bashing Miranda].
8. See, e.g., Cassell, supra note 2; Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. REV. 500 (1996) [hereinafter Schulhofer, Miranda's Practical Effect]; Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 Nw. U. L. REV. 1084 (1996) [hereinafter Cassell, All Benefits, No Costs]; Stephen J. Schulhofer, Miranda and Clearance Rates, 91 Nw. U. L. REV. 278 (1996); Paul G. Cassell, Miranda's Negligible Effect on Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. PUB. POL'Y 327 (1997); Stephen J. Schulhofer, Bashing Miranda is Unjustified - and Harmful, 20 HARV. J.L. PUB. POL'Y 347 (1997) [hereinafter Schulhofer, Bashing Miranda].
9. The Chief Justice does write, in his opinion for the court, that a "disadvantage of the Miranda rule" is that "a guilty person [may] go free as a result." 120 S. Ct. at 2336. But he mentions nothing to suggest that he considers this a frequent or serious problem, and immediately after noting this disadvantage, he enumerates offsetting ways in which Miranda sometimes eases the task of insuring that a confession will be ruled admissible.
10. See, e.g., sources cited supra note 4; see also John J. Donohue III, Did Miranda Diminish Police Effectiveness?, 50 STAN. L. REV. 1147 (1998).
11. The claim that Miranda "sweeps more broadly than the Fifth Amendment itself" appears repeatedly in Rehnquist Court comments on the conceptual basis of Miranda. E.g., Oregon v. Elstad, 470 U.S. 298, 306 (1985).
12. Elstad, 470 U.S. 298 (1985); New York v. Quarles, 467 U.S. 649 (1984); Michigan v. Tucker, 417 U.S. 433 (1974).
13. Mincey v. Arizona, 437 U.S. 385 (1978).
14. Kastigar v. United States, 406 U.S. 441 (1972).
15. 418 U.S. 683 (1974).
16. Id. at 709 (emphasis added). 13. Washington v. Texas, 388 U.S. 14 (1967).
17. Rochin v. California, 342 U.S. 165, 172 (1952).
18. This truncated analysis leaves open at least two important issues. First, to stress, as I have done here, the inherent distinction between Fourteenth Amendment involuntariness and Fifth Amendment compulsion does not by itself provide normative justification for the Fifth Amendment itself, that is for a constitutional regime that permits certain strong pressures to be deployed against ordinary witnesses but not against criminal suspects. For discussion of that normative issue, see Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311 (1991). Second, the analysis does not attempt to fill out the exact content of either "compulsion" or "involuntariness." It is only a partial defense of this gap to note that the Court itself has given little precise content to either term, and the distinction between them cannot be measured until the content of each is operationally defined. For one attempt to develop a formal definition of compulsion, see Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435 (1987). For attempts to define involuntariness, see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996); Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001 (1998).
19. This truncated analysis leaves open at least two important issues. First, to stress, as I have done here, the inherent distinction between Fourteenth Amendment involuntariness and Fifth Amendment compulsion does not by itself provide normative justification for the Fifth Amendment itself, that is for a constitutional regime that permits certain strong pressures to be deployed against ordinary witnesses but not against criminal suspects. For discussion of that normative issue, see Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311 (1991). Second, the analysis does not attempt to fill out the exact content of either "compulsion" or "involuntariness." It is only a partial defense of this gap to note that the Court itself has given little precise content to either term, and the distinction between them cannot be measured until the content of each is operationally defined. For one attempt to develop a formal definition of compulsion, see Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435 (1987). For attempts to define involuntariness, see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996); Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001 (1998).
20. This truncated analysis leaves open at least two important issues. First, to stress, as I have done here, the inherent distinction between Fourteenth Amendment involuntariness and Fifth Amendment compulsion does not by itself provide normative justification for the Fifth Amendment itself, that is for a constitutional regime that permits certain strong pressures to be deployed against ordinary witnesses but not against criminal suspects. For discussion of that normative issue, see Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311 (1991). Second, the analysis does not attempt to fill out the exact content of either "compulsion" or "involuntariness." It is only a partial defense of this gap to note that the Court itself has given little precise content to either term, and the distinction between them cannot be measured until the content of each is operationally defined. For one attempt to develop a formal definition of compulsion, see Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435 (1987). For attempts to define involuntariness, see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996); Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001 (1998).
21. This truncated analysis leaves open at least two important issues. First, to stress, as I have done here, the inherent distinction between Fourteenth Amendment involuntariness and Fifth Amendment compulsion does not by itself provide normative justification for the Fifth Amendment itself, that is for a constitutional regime that permits certain strong pressures to be deployed against ordinary witnesses but not against criminal suspects. For discussion of that normative issue, see Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 VAL. U. L. REV. 311 (1991). Second, the analysis does not attempt to fill out the exact content of either "compulsion" or "involuntariness." It is only a partial defense of this gap to note that the Court itself has given little precise content to either term, and the distinction between them cannot be measured until the content of each is operationally defined. For one attempt to develop a formal definition of compulsion, see Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435 (1987). For attempts to define involuntariness, see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996); Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001 (1998).
22. Brooks v. Tennessee, 406 U.S. 605 (1972); Griffin v. California, 380 U.S. 609, 614 (1965).
23. 450 U.S. 288 (1981).
24. Id. at 301.
25. Id. at 303.
26. Lefkowitz v. Cunningham, 431 U.S. 801 (1977).
27. Id. at 806.
28. Lefkowitz v. Turley, 414 U.S. 70 (1973). The Court's refusal to consider circumstantial distinctions in degrees of pressure is made explicit in an extended discussion, 414 U.S. at 83-84.
29. See, e.g., Dickerson v. United States, 120 S. Ct. 2326, 2346-48 (2000) (Scalia, J., dissenting); Oregon v. Elstad. 470 U.S. 298, 306 (1985).
30. Brown v. Mississippi, 297 U.S. 278 (1936); see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996).
31. Brown v. Mississippi, 297 U.S. 278 (1936); see Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996).
32. 378 U.S. 1 (1964).
33. See Brown v. Mississippi: "[T]he right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements [concerning to the Fifth Amendment] refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter." 297 U.S. at 285 (emphasis added).
34. Mallory v. United States, 354 U.S. 449 (1957).
35. "We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning." Miranda v. Arizona, 384 U.S. 436, 461 (1966) (emphasis added).
36. "[W]e might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest." Miranda, 384 U.S. at 457.
37. See Schulhofer, Reconsidering Miranda, supra note 15, at 439, 453 (1987).
38. See Oregon v. Elstad, 470 U.S. 298, 312, 315 (1985) ("[A] simple failure to administer the warnings [is not equivalent to] actual coercion . . . [There] is a vast difference between coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and . . . [a] disclosure freely given in response to an unwarned but noncoercive question . . . [R]espondent's earlier remark was voluntary, within the meaning of the Fifth Amendment." (emphasis added)). Note especially the last quoted sentence, giving the word "voluntary" textual status, as if it were part of the language of the Fifth Amendment.
39. The comparison suggested in the text perhaps oversimplifies in assuming a unitary metric to assess degrees of compulsion presented by qualitatively different forms of pressure. Formal penalties are, in one sense, especially troublesome because they exact an explicit, officially sanctioned price for conduct that the Constitution expressly protects. And formal penalties can be prohibited without inviting the kind of line-drawing problems that inevitably attend attempts to prescribe informal pressures. From that perspective, one could conceivably argue that Fifth Amendment compulsion should be understood to embrace only formal sanctions, together with the extreme types of informal pressure that rise to the level of Fourteenth Amendment involuntariness. That approach, however, seems unsatisfactory as a matter of both substance and precedent. Any effort to limit informal compulsion to sanctions that overbear the will would stand in tension with the case law applicable to informal economic pressure, most notably Lefkowitz v. Cunningham, 431 U.S. 801 (1977). Moreover, formal penalties are imposed openly, subject to specific limits and with time for a rational weighing of alternatives with the advice of counsel. From that perspective, the psychologically coercive effect of formal penalties and their capacity to engender fear seem far less significant than is the case for many informal pressures, especially those deployed by police in the unregulated incommunicado context of custodial police interrogation. That said, the precise content of informal "compulsion" remains open to more specific elaboration.
40. It is technically an overstatement to suggest that compulsion must inevitably be present in every conceivable interrogation. Imagine that a knowledgeable suspect, fully aware of his right to silence and fully briefed by his attorney, is questioned without full Miranda warnings, after being assured that the arresting officer has only one short question to ask and will then leave the suspect alone in his cell. If the suspect then confesses, it would be implausible to suggest that his response was the result of "compulsion." Cases of this sort, however, are surely rare, if not nonexistent. In virtually all real cases of custodial interrogation without warnings, the circumstantial pressures, from the very outset, are at least as significant as those found "compelling" in cases like Carter v. Kentucky, 450 U.S. 288 (1981), Cunningham, 431 U.S. 801 (1977), and Lefkowitz v. Turley, 414 U.S. 70 (1973). For a discussion of the justification for per se rules in settings where a few cases might, if scrutinized, be found to lack the facts that are determinative in principle, see Schulhofer, Reconsidering Miranda, supra note 15.
41. Dickerson v, United States, 120 S. Ct. 2326, 2335 (2000). The limitation, as originally stated in Miranda, is virtually identical: Any alternative must be "at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it . . . ." 384 U.S. at 467.
42. See Watts v. Indiana, 338 U.S. 49, 53 (1949) (opinion of Frankfurter, J.).
43. Cassell, supra note 2, at 492.
44. Id. at 492 & n.610.
45. Dickerson, 120 S. Ct. at 2335.
46. See Cassell, supra note 2, at 492.
47. We might worry, however, that without police acknowledgment of the warnings, a suspect who knows perfectly well the rights that the law gives him would nonetheless have no assurance that the police were prepared to honor those rights.
48. E.g., Akhil Reed Amar, Ok, All Together Now: 'You Have the Right to . . .' L.A. TIMES, Dec. 12, 1999, at M1.
49. Amar, supra note 41.
50. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
51. United States v. Wade, 388 U.S. 218 (1967).
52. Casseli, All Benefits, No Costs, supra note 4, at 1090-91.
53. For more detailed discussion, see Schulhofer, Miranda's Practical Effect, supra note 4, at 556-57.
54. Cf. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 65-74 (1997) (discussing importance of funding decisions and substantive culpability requirements).
55. See NAT'L INSTITUTE OF JUSTICE, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING (1998); LISBETH B. SCHORR, WITHIN OUR REACH (1988); John J. Donohue III & Peter Seligman, Allocating Resources Among Prisons and Social Programs in the Battle Against Crime, 27 J. LEGAL STUDIES 1 (1998).
56. See NAT'L INSTITUTE OF JUSTICE, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING (1998); LISBETH B. SCHORR, WITHIN OUR REACH (1988); John J. Donohue III & Peter Seligman, Allocating Resources Among Prisons and Social Programs in the Battle Against Crime, 27 J. LEGAL STUDIES 1 (1998).
57. See NAT'L INSTITUTE OF JUSTICE, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING (1998); LISBETH B. SCHORR, WITHIN OUR REACH (1988); John J. Donohue III & Peter Seligman, Allocating Resources Among Prisons and Social Programs in the Battle Against Crime, 27 J. LEGAL STUDIES 1 (1998).
58. See Stuntz, supra note 47, at 72-76.
59. Schulhofer, Bashing Miranda, supra note 4, at 372.