The rise, decline, and fall (?) of Miranda

Washington Law Review

Volumn 87, Issue 4, 2012, Pages 965-1040

  Kamisar, Yale ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 84871883018     PISSN: 00430617     EISSN: None     Source Type: Journal    
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References (457)

1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. See Richard Leo, Police Interrogation and American Justice 280-83 (2008)
3. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010)
4. Christopher Slobogin, Toward Taping, 1 Ohio St. J. Crim. L. 309 (2003)
5. George C. Thomas III, Miranda's Illusion: Telling Stories in the Police Interrogation Room, 81 Tex. L. Rev. 1091, 1092-95 (2003)
6. cf. Welsh S. White, Miranda's Failure to Restrain Pernicious Interrogation Practices, 99 Mich. L. Rev. 1211, 1246 (2001) ("[A]s interpreted by the post-Miranda Court, the extent to which Miranda's safeguards protect suspects from pernicious interrogation practices is extremely limited. ").
7. See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519, 1523-25, 1590-1600 (2008).
8. The saying is usually attributed to G.K. Chesterton. See, e.g., Arthur M. Schlesinger, Jr., A Thousand Days: John F. Kennedy in the White House 106 (1965) (noting that President Kennedy kept a collection of sayings in a notebook, including the one set forth in the text-which he attributed to G.K. Chesterton).
9. Judge William C. Griesbach, The Joy of Law, 92 Marq. L. Rev. 889, 892 (2009), also credits Chesterton with this saying. However, the saying seems to be a paraphrase or compressed version of what Chesterton actually said. His point was that if you find a fence in a certain place, somebody might have had a good reason for putting one there. Until you know what that reason might be, you should not consider tearing the fence down.
10. See The Drift from Domesticity, in 3 The Collected Works of G.K. Chesterton 157, 157 (1990).
11. J.D.B. v. North Carolina, __ U.S. __, 131 S. Ct. 2394, 2408 (2011) (Sotomayor, J., for a 5-4 majority). In the course of arguing successfully in Dickerson v. United States, 530 U.S. 428 (2000), that a 1968 federal statute purporting to abolish Miranda (a statute widely known as § 3501) should be struck down as unconstitutional, the U.S. Department of Justice "recall[ed] that the Miranda Court arrived at its solution only after concluding that the 'totality of circumstances' voluntariness test, as the sole protection for the Fifth Amendment rights of a custodial suspect, had failed.... It was inadequate because a 'totality' test, without more, provided insufficient guidance to the police, left inadequate means for this Court to unify and expound the law, and resulted in an uncertain legal rule that could not secure the vital constitutional rights at stake. " Reply Brief for the United States at 20, Dickerson, 530 U.S. 428 (No. 99-5525).
12. This was pointed out more than a decade before Miranda. See Monrad Paulsen, The Fourteenth Amendment and the Third Degree, 6 Stan. L. Rev. 411, 418-19, 429-30 (1954)
13. see also Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. 213, 235 (1959).
14. As Louis Michael Seidman has pointed out, at the very end of his long career, in Culombe v. Connecticut, 367 U.S. 568 (1991) (plurality opinion), Justice Frankfurter tried to make sense of, and to defend, the "voluntariness" test-in "sixty-seven pages of elegantly written prose. "
15. Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673, 730-33 (1992). "Despite his herculean effort, " Frankfurter "succeeded in attracting only one other Justice to his opinion" (Stewart).
16. Stephen J. Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 869-70 (1981).
17. William J. Stuntz, Miranda's Mistake, 99 Mich. L. Rev. 975, 980-81 (2001).
18. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. 99, 102-03 (1977).
19. 437 U.S. 385 (1978) (per Stewart, J.).
20. 347 U.S. 62 (1954).
21. Mincey, 437 U.S. at 398.
22. Mincey, 437 U.S. at 396.
23. Mincey, 437 U.S. at 396.
24. Mincey, 437 U.S. at 399.
25. Mincey, 437 U.S. at 396. Moreover, at the time the detective asked the questions, he made no record of them. In a report dated about a week later, the detective "transcribed Mincey's answers and added the questions he believed he had asked. "
26. Mincey, 437 U.S. at 396.
27. Mincey, 437 U.S. at 410. Mincey was not the only time state courts ruled that a confession obtained from a wounded and hospitalized person was "voluntary" only to have the U.S. Supreme Court reverse. In Beecher v. Alabama, 389 U.S. 35 (1967) (per curiam), a confession was obtained from a murder suspect while (a) he was bleeding from a bullet wound in his leg (which was amputated soon afterwards) and (b) he was under the influence of a morphine injection that had been given to him to ease his pain.
28. Mincey, 437 U.S. at 36-37.
29. 297 U.S. 278 (1936).
30. Counting Brown, the Supreme Court decided thirty-five state confession cases from 1936 through 1965.
31. See National Legal Aid and Defender Association, Defender Newsletter, Vol. II, no. 5, Sept. 1965.
32. See E. Barrett Prettyman, Jr., Death and the Supreme Court 297-98, 305 (1961).
33. See 63 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 881, 894 (Philip B. Kurland & Gerhard Casper eds., 1975) (quoting oral argument of Mr. Victor Earle for petitioner in Vignera v. New York, companion case to Miranda).
34. 378 U.S. 478 (1964).
35. As assistant director of the Northwestern Law School's Criminal Law Program, Thompson told a group of prosecuting attorneys shortly after Escobedo was handed down that even if a suspect had neither retained nor requested counsel the police should inform him of his right to remain silent and that anything he said could be used against him. Moreover, added Thompson, even though a suspect had not asked for a lawyer or indicated that he knew he had a right to one, "absolute compliance with the Escobedo rule may well require a warning of the right to counsel, along with the warning of the privilege against self incrimination. " Thompson emphasized that "in no other area of the criminal law has the Supreme Court taken more pains to carefully scrutinize the application of the doctrine of waiver by uncounseled defendants than in the area of the waiver of the right to counsel itself. Verbal waivers related to police officers, contradicted by the defendant at the trial, will almost certainly not pass muster. " Substantial extracts from Thompson's remarks appear in Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Yale Kamisar, Fred Inbau & Thurman Arnold, Criminal Justice in Our Time 66-68 (A.E. Dick Howard ed., 1965). A young Northwestern University law professor at the time he argued Escobedo, Thompson later became Governor of Illinois.
36. Remarks of Judge Henry Friendly, 43 A.L.I. Proc. 250-52 (1966) (emphasis added).
37. Remarks of Judge Henry Friendly, 43 A.L.I. Proc. at 250 (1966).
38. see also Symposium, Has the Court left the Attorney-General Behind?, 54 Ky. L.J. 464, 521, 520, 523 (1966) (pre-Miranda), where a highly regarded state judge, Walter Schaefer of the Illinois Supreme Court, maintained that effective criminal law enforcement "is not compatible with a prohibition of station house interrogation or with the presence of a lawyer during [such interrogation]. "
39. Moran v. Burbine, 475 U.S. 412, 426 (1986) (emphasis added).
40. Fred Graham, The Self-Inflicted Wound 7 (1970).
41. See Johnson v. New Jersey, 384 U.S. 719 (1966).
42. Fred Graham, The Self-Inflicted Wound 7 (1970), at 184.
43. Fred Graham, The Self-Inflicted Wound 7 (1970), at 185. The Warren Court soon realized its mistake. A year later, when it applied the right to counsel to lineups and other pretrial identifications in United States v. Wade, 388 U.S. 218 (1967), the Court limited the new ruling to identifications conducted in the absence of counsel after the date of the Wade decision.
44. Fred Graham, The Self-Inflicted Wound 7 (1970), at 186.
45. Fred Graham, The Self-Inflicted Wound 7 (1970), at 3-4.
46. 18 U.S.C. § 3501 (1994).
47. 18 U.S.C. § 3501 (1994). at 12.
48. 18 U.S.C. § 3501 (1994). 114 Cong. Rec. 14,146 (May 21, 1968) (statement of Sen. McClellan).
49. 18 U.S.C. § 3501 (1994). at 14,155.
50. 18 U.S.C. § 3501 (1994). at 14,155 (statement of Sen. Ervin).
51. 18 U.S.C. § 3501 (1994). at 14,030.
52. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev. 883, 893, 894 (2000). June 5, 1968, the day the House began consideration of the Senate bill, was also the day Senator Robert F. Kennedy was assassinated. Some Congressmen cited the assassination as a reason for prompt action on the Senate bill. This was ironic. According to Senator Kennedy's legislative assistant, Peter Edelman, the Senator was "very deeply opposed" to the bill purporting to abolish Miranda.
53. Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev., at 893-94 (2000), 894 n.63.
54. See Dickerson v. United States, 530 U.S. 428 (2000).
55. Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 810 (1970).
56. Fred Graham, The Self-Inflicted Wound 7 (1970), at 15.
57. Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 539 (1975), referring to Mr. Nixon's position paper on crime, Toward Freedom from Fear, dated May 8, 1968 [hereinafter Nixon, Position Paper on Crime], available at http://legacy.library.ucsf.edu/tid/xfe16b00/pdf;jsessionid=B3108BC30B410939156F8DCF38F2F11 4.tobacco03.
58. See Yale Kamisar, How to Use, Abuse-and Fight Back with-Crime Statistics, 25 Okla. L. Rev. 239 (1972).
59. Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion 244 (2010). Shortly before he was nominated to be Chief Justice, Burger (at the suggestion of President Nixon) had sent Attorney General John Mitchell some Supreme Court recommendations and Harry Blackmun's name had been on the list. As Nixon aide John Ehrlichman put it, Blackmun "could be expected to follow closely the new Chief Justice's lead. "
60. Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 539 (1975), referring to Mr. Nixon's position paper on crime, Toward Freedom from Fear, dated May 8, 1968 [hereinafter Nixon, Position Paper on Crime], available at http://legacy.library.ucsf.edu/tid/xfe16b00/pdf;jsessionid=B3108BC30B410939156F8DCF38F2F11 4.tobacco03.
61. See Yale Kamisar, How Earl Warren's Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice, 3 Ohio St. L.J. 11-12 (2005).
62. See Yale Kamisar, How Earl Warren's Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice, 3 Ohio St. L.J. 11-12 (2005).
63. By the time Judge Burger was nominated to be Chief Justice, it was plain that he had become the principal antagonist of the liberal Chief Judge of his court, David Bazelon. But the intensity of Burger's dislike of Bazelon was not as well known.
64. Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion 244 (2010). Shortly before he was nominated to be Chief Justice, Burger (at the suggestion of President Nixon) had sent Attorney General John Mitchell some Supreme Court recommendations and Harry Blackmun's name had been on the list. As Nixon aide John Ehrlichman put it, Blackmun "could be expected to follow closely the new Chief Justice's lead. "
65. Borum v. United States, 380 F.2d 595, 602 (D.C. Cir. 1967) (Burger, J., dissenting).
66. Frazier v. United States, 419 F.2d 1161, 1176 (D.C. Cir. 1969) (Burger, J., dissenting).
67. Warren E. Burger, Who Will Watch the Watchman?, 14 Am. U. L. Rev. 1 (1964).
68. Warren E. Burger, Who Will Watch the Watchman?, 14 Am. U. L. Rev. at 12 (1964).
69. Warren E. Burger, Who Will Watch the Watchman?, 14 Am. U. L. Rev. at 23 (1964).
70. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 70.
71. According to John Dean, future President Nixon sent Judge Burger a letter complimenting him on his U.S. News article. See John W. Dean, The Rehnquist Choice 12-13 (2001). John Ehrlichman, who served as an assistant to President Nixon, tells a somewhat different story: Shortly after his inauguration, President Nixon asked Judge Burger to come to the White House to administer the oath of office to some of the President's new appointees. Judge Burger brought with him a copy of the speech that had been reprinted in U.S. News. After the President and Judge Burger had talked for a while, the President handed Ehrlichman a copy of the Burger speech and told him to disseminate it to various people (including Attorney General John Mitchell, who was in charge of Supreme Court appointments). The President also told Ehrlichman to "keep in touch with the Judge. " He did not have to do much to carry out the President's orders, recalls Ehrlichman, "because Burger was a past master at keeping in touch. " From that point on, Ehrlichman received a number of notes from Burger about the Supreme Court, law enforcement, and other topics.
72. Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion 244 (2010). Shortly before he was nominated to be Chief Justice, Burger (at the suggestion of President Nixon) had sent Attorney General John Mitchell some Supreme Court recommendations and Harry Blackmun's name had been on the list. As Nixon aide John Ehrlichman put it, Blackmun "could be expected to follow closely the new Chief Justice's lead. "
73. According to John Dean, future President Nixon sent Judge Burger a letter complimenting him on his U.S. News article. See John W. Dean, The Rehnquist Choice, at 13 (2001). John Ehrlichman, who served as an assistant to President Nixon, tells a somewhat different story: Shortly after his inauguration, President Nixon asked Judge Burger to come to the White House to administer the oath of office to some of the President's new appointees. Judge Burger brought with him a copy of the speech that had been reprinted in U.S. News. After the President and Judge Burger had talked for a while, the President handed Ehrlichman a copy of the Burger speech and told him to disseminate it to various people (including Attorney General John Mitchell, who was in charge of Supreme Court appointments). The President also told Ehrlichman to "keep in touch with the Judge. " He did not have to do much to carry out the President's orders, recalls Ehrlichman, "because Burger was a past master at keeping in touch. " From that point on, Ehrlichman received a number of notes from Burger about the Supreme Court, law enforcement, and other topics.
74. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 70.
75. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 72.
76. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 72.
77. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 72.
78. Warren E. Burger, What to Do about Crime in U.S.: A Federal Judge Speaks, U.S. News & World Rep., Aug. 7, 1967, at 72.
79. See Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. "
80. According to John Dean, future President Nixon sent Judge Burger a letter complimenting him on his U.S. News article. See John W. Dean, The Rehnquist Choice, at 268 (2001). I am indebted to Professor Thomas Y. Davies of the University of Tennessee College of Law for calling this memorandum to my attention and providing me with a copy (which he obtained from the National Archives). Rehnquist's proposal to establish a commission to determine whether some of the Warren Court rulings called for a constitutional amendment never went beyond Dean's discussion of the issue with Attorney General John Mitchell. The Attorney General thought "it might create a problem if the Nixon administration could not control such a commission which would not be easy. "
81. According to John Dean, future President Nixon sent Judge Burger a letter complimenting him on his U.S. News article. See John W. Dean, The Rehnquist Choice, at 269 (2001).
82. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 2.
83. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 2.
84. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 2.
85. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 1.
86. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 5.
87. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 5. (quoting from Justice Jackson's opinion in Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring and dissenting).
88. Remarks of Judge Henry Friendly, 43 A.L.I. Proc. 250-52 (1966) (emphasis added). In a way, Judge Friendly made the same mistake as future Justice Rehnquist did. But Friendly was anticipating what the Warren Court might do when it handed down Miranda. Rehnquist, on the other hand, was writing a memorandum about confessions approximately three years after the Miranda case had been decided.
89. Richard J. Medalie, Leonard Zeitz & Paul Alexander, Custodial Police Interrogation in Our Nation's Capital, 66 Mich. L. Rev. 1347, 1351-52 (1968).
90. See Richard Leo, Police Interrogation and American Justice at 280-81 (2008)
91. Mark A. Godsey, Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings, 90 Minn. L. Rev. 781, 792-93 (2006) (and authorities collected therein).
92. 401 U.S. 222 (1971).
93. 417 U.S. 433 (1974).
94. 347 U.S. 62 (1954).
95. 347 U.S. 62 (1954) at 65 (emphasis added).
96. Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1215-16 (1971) (emphasis added).
97. Walder, 347 U.S. at 65.
98. Walder, 347 U.S. at 65. (emphasis added).
99. 269 U.S. 20 (1925).
100. Not only did the Chief Justice neglect to cite Agnello even once, he "appears to have gone to some pains to excise from [his] rendition of Walder all reference to Agnello. "
101. Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1213 (1971).
102. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 108 (1977).
103. Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1211 (1971).
104. Miranda v. Arizona, 384 U.S. 436, 476-77 (1966). Prior to Harris, most state and federal courts of appeals addressing this issue had ruled that un-Mirandized statements were inadmissible for impeachment purposes.
105. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 107 (1977).
106. Harris v. New York, 401 U.S. 222, 224 (1971).
107. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 107-108 (1977).
108. Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1210 (1971), the opinion "said that it was part of its 'holding' that an uncounseled 'exculpatory' statement could not be used by the prosecution" (emphasis added) referring to Miranda, 384 U.S. at 444.
109. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 112 (1977).
110. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 112 (1977).
111. Harris, 401 U.S. at 224.
112. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 114 (1977).
113. Alan M. Dershowitz & John Hart Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1201-08 (1971).
114. See New Jersey v. Portash, 440 U.S. 450 (1979)
115. Mincey v. Arizona, 437 U.S. 385 (1978).
116. John P. MacKenzie, Court Eases Restraint on Confessions, Wash. Post, Feb. 25, 1971, at A1.
117. Ronald J. Ostrow, Court Limits Effect of the Miranda Decision on Defendant's Rights, L.A. Times, Feb. 25, 1971, at 21.
118. Glen Elsasser, Ease Warren Curb on Police Quizzing, Chi. Trib., Feb. 25, 1971, at 1.
119. Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010) (emphasis added).
120. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks 235, 236 (1967). The text of this chapter was taken from Judge Friendly's speech to the State Bar of California on Sept. 23, 1965.
121. 372 U.S. 391 (1963).
122. 378 U.S. 478 (1964).
123. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks, at 264 n.135. (1967). The text of this chapter was taken from Judge Friendly's speech to the State Bar of California on Sept. 23, 1965.
124. Michigan v. Tucker, 417 U.S. 433, 458 (1974) (Brennan, J., concurring, joined by Marshall, J.). For a discussion of Johnson
125. See Johnson v. New Jersey, 384 U.S. 719 (1966).
126. Tucker, 417 U.S. at 448.
127. Tucker, 417 U.S. at 448.
128. Tucker, 417 U.S. at 444.
129. 380 U.S. 609 (1965).
130. Tucker, 417 U.S. at 445.
131. Tucker, 417 U.S. at 444-46. According to Justice Rehnquist, the police conduct in Tucker violated neither a defendant's "privilege against self-incrimination as such" (as opposed to the "procedural safeguards associated with that right") nor the protection against "involuntary" confessions.
132. Tucker, 417 U.S. at 444-45.
133. This part of the oral arguments in Miranda and its companion cases is reprinted in Yale Kamisar, Wayne R. LaFave et al., Modern Criminal Procedure: Cases, Comments & Questions 569-70 (13th ed. 2012): I don't think [the confession in my case] was coerced at all.... I think there is a substantial difference between [compelling someone to give up his Fifth Amendment privilege] and coercing a confession....[I]t is quite different to say that the privilege is cut down and impaired by detention and to say a man's will has been so overborne a confession is forced from him....... [I]f we go back to the totality of circumstances [test], that means this Court will sit all by itself as it has [for] so many years to overturn the few confessions it can take... The lower courts won't do their job. We need some specific guidelines... to help them along the way.
134. This part of the oral arguments in Miranda and its companion cases is reprinted in Yale Kamisar, Wayne R. LaFave et al., Modern Criminal Procedure: Cases, Comments & Questions 569-70 (13th ed. 2012): I don't think [the confession in my case] was coerced at all.... I think there is a substantial difference between [compelling someone to give up his Fifth Amendment privilege] and coercing a confession....[I]t is quite different to say that the privilege is cut down and impaired by detention and to say a man's will has been so overborne a confession is forced from him....... [I]f we go back to the totality of circumstances [test], that means this Court will sit all by itself as it has [for] so many years to overturn the few confessions it can take... The lower courts won't do their job. We need some specific guidelines... to help them along the way.
135. Miranda, 384 U.S. at 511 (Harlan, J., dissenting, joined by Stewart and White, JJ.).
136. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. at 118-19 (1977). (quoting Miranda, 384 U.S. at 476).
137. See Tucker, 417 U.S. at 439, 443-46.
138. Tucker, 417 U.S. at 443 (emphasis added).
139. Tucker, 417 U.S. at 444 (quoting Miranda, 384 U.S. at 467).
140. Miranda, 384 U.S. at 457.
141. Miranda, 384 U.S. at 467.
142. Miranda, 384 U.S. at 458.
143. Tucker, 417 U.S. at 463.
144. Miranda, 384 U.S. at 467.
145. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev., at 118-19 (1977). (quoting Tucker, 417 U.S. at 442-43).
146. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev., at 119 (quoting Miranda, 384 U.S. at 476).
147. Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev., at 119-20.
148. Dickerson v. United States, 530 U.S. 428 (2000).
149. See especially Oregon v. Elstad, 470 U.S. 298 (1985) (Justice O'Connor writing for the majority); New York v. Quarles, 467 U.S. 649 (1984) (Justice Rehnquist writing for the majority).
150. 538 U.S. 760 (2003). Justice Thomas's plurality opinion was joined by Chief Justice Rehnquist in its entirety and in large part by Justices O'Connor and Scalia.
151. see also Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. 213, 235 (1959).
152. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter 2350 (Bureau of Nat'l Affairs ed. 1969) [hereinafter Memorandum to U.S. Attorneys].
153. 18 U.S.C. § 3501 (1994). at 12.
154. 18 U.S.C. § 3501 (1994). 114 Cong. Rec. 14,146 (May 21, 1968) (statement of Sen. McClellan).
155. 18 U.S.C. § 3501 (1994). at 14,155.
156. 18 U.S.C. § 3501 (1994). at 14,155 (statement of Sen. Ervin).
157. 18 U.S.C. § 3501 (1994). at 14,030.
158. See Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev. 883, 893, 894 (2000). June 5, 1968, the day the House began consideration of the Senate bill, was also the day Senator Robert F. Kennedy was assassinated. Some Congressmen cited the assassination as a reason for prompt action on the Senate bill. This was ironic. According to Senator Kennedy's legislative assistant, Peter Edelman, the Senator was "very deeply opposed" to the bill purporting to abolish Miranda.
159. Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev., at 893-94 (2000), 894 n.63.
160. See Dickerson v. United States, 530 U.S. 428 (2000).
161. Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 810 (1970).
162. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter, at 2351-52. (Bureau of Nat'l Affairs ed. 1969) [hereinafter Memorandum to U.S. Attorneys].
163. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter, at 2351-52. (Bureau of Nat'l Affairs ed. 1969) [hereinafter Memorandum to U.S. Attorneys].
164. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter, at 2352. (Bureau of Nat'l Affairs ed. 1969) [hereinafter Memorandum to U.S. Attorneys].
165. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter, at 2351-52. (Bureau of Nat'l Affairs ed. 1969) [hereinafter Memorandum to U.S. Attorneys].
166. Michigan v. Tucker, 417 U.S. 433, 439 (1974).
167. Memorandum from the Department of Justice to United States Attorneys (June 11, 1969), in 5 Criminal Law Reporter, at 2352 (emphasis added). 134.
168. Tucker, 417 U.S. at 443 (emphasis added).
169. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 2.
170. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to John W. Dean III, Assoc. Deputy Attorney Gen. (Apr. 1, 1969) [hereinafter Rehnquist Memorandum] (on file with the Washington Law Review). The memorandum was marked "administratively confidential. " According to Dean, this "kept it locked up for many years. ", at 2.
171. E-mail from John Dean, former Assoc. Deputy Attorney Gen., to author (Sept. 20, 2011) (on file with author).
172. E-mail from John Dean, former Assoc. Deputy Attorney Gen., to author (Sept. 20, 2011) (on file with author).
173. 395 U.S. 711 (1969).
174. 395 U.S. at 725 n.20.
175. Charles H. Whitebread & Christopher Slobogin, Criminal Procedure 881 (5th ed. 2008).
176. Pearce, 395 U.S. at 726.
177. Michigan v. Payne, 412 U.S. 47, 53 (1973) (per Powell, J.). The 7-2 majority included Chief Justice Burger and future Chief Justice Rehnquist.
178. Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 Mich. L. Rev. 1030 (2001).
179. 376 U.S. 254 (1964).
180. David A. Strauss, Miranda, the Constitution, and Congress, 99 Mich. L. Rev. 958, 965-66 (2001).
181. David A. Strauss, Miranda, the Constitution, and Congress, 99 Mich. L. Rev., at 963 (2001).
182. Evan H. Caminker, Miranda and Some Puzzles of "Prophylactic" Rules, 70 U. Cin. L. Rev. 1, 26 (2001).
183. Evan H. Caminker, Miranda and Some Puzzles of "Prophylactic" Rules, 70 U. Cin. L. Rev. 1, 26 (2001).
184. Malloy v. Hogan, 378 U.S. 1 (1964).
185. Evan H. Caminker, Miranda and Some Puzzles of "Prophylactic" Rules, 70 U. Cin. L. Rev., at1, 25 (2001).
186. Evan H. Caminker, Miranda and Some Puzzles of "Prophylactic" Rules, 70 U. Cin. L. Rev., at1, 25 (2001).
187. 451 U.S. 477 (1981). Edwards is one of the few times in the last forty years that the Supreme Court gave Miranda a generous reading.
188. It will not do to say that Miranda required the Edwards rule. The Court had held earlier that if a suspect asserts his "right to silence" (as opposed to his right to counsel) the police are permitted (if they cease questioning on the spot) to try again and succeed at a subsequent interrogation. See Michigan v. Mosley, 423 U.S. 96 (1975). The Court could have plausibly held that invocation of the right to counsel should be treated no differently than the assertion of the right to silence.
189. 498 U.S. 146 (1990) (per Kennedy, J.).
190. 498 U.S. 146 (1990) at 166 (Scalia, J., dissenting, joined by Rehnquist, C.J.).
191. 498 U.S. 146 (1990) at 153 (emphasis added).
192. 498 U.S. 146 (1990) at 151. Only Justice Scalia, joined by Chief Justice Rehnquist, dissented.
193. 462 U.S. 1039 (1983).
194. 462 U.S. at 1042.
195. Concurring Justice Powell provided the fifth vote. He agreed that Bradshaw had effectively waived his right to counsel, but saw no need for the plurality's two-step analysis.
196. See Bradshaw, 462 U.S. at 1045-46.
197. See Bradshaw, 462 U.S. at 1055-56.
198. 512 U.S. 452 (1994).
199. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259 (1993).
200. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J., at 315. (1993).
201. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J., at 285-88. (1993).
202. Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L. Rev. 1011, 1047, 1055 (2007).
203. Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L. Rev. at 1057. (2007).
204. Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L. Rev. at 1060. (2007).
205. 467 U.S. 649 (1984).
206. 467 U.S. at 655 n.5.
207. 467 U.S. at 655 n.5.
208. 467 U.S. at 652-53.
209. 467 U.S. at 655-60.
210. 467 U.S. at 655.
211. 467 U.S. at 657.
212. 470 U.S. 298 (1985).
213. 470 U.S. at 300-02.
214. 470 U.S. at 301-02.
215. Tucker, 417 U.S. at 448.
216. Dickerson v. United States, 530 U.S. 428 (2000).
217. Dickerson v. United States, 530 U.S. at 432.
218. Elstad, 470 U.S. at 304 (emphasis added).
219. Elstad, 470 U.S. at 304 (emphasis added).
220. Elstad, 470 U.S. at 305-06 (emphasis added).
221. Elstad, 470 U.S. at 306 (emphasis added).
222. Elstad, 470 U.S. at 307 (emphasis added).
223. Elstad, 470 U.S. at 307-08 (emphasis added).
224. Elstad, 470 U.S. at 309 (emphasis added).
225. Elstad, 470 U.S. at 312 (emphasis added).
226. Elstad, 470 U.S. at 314 (emphasis added).
227. In L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages (pt. 1), 46 Yale L.J. 52, 53 (1936), the authors refer to "Nietzsche's observation, that the most common stupidity consists in forgetting what one is trying to do. " Unfortunately, the authors do not provide a source. According to the University of Michigan Law School Faculty Services Librarian, Seth Quidachay-Swan, the Fuller-Purdue reference to Nietzsche has made their version of the quote the basis for its current form. Mr. Quidachay-Swan adds that in Friedrich Nietzsche, Human, All Too Human (R.J. Hollingdale trans., Cambridge Univ. Press 1996) (1878), Nietzsche does say: "During the journey we commonly forget its goal.... Forgetting our objectives is the most frequent of all acts of stupidity. "
228. Nardone v. United States, 308 U.S. 338, 340 (1939) (per Frankfurter, J.).
229. Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 712 n.176 (1968). A quarter-century later, another commentator indicated that nothing had changed.
230. See David A. Wollin, Policing the Police: Should Miranda Violations Bear Fruit?, 53 Ohio St. L.J. 805, 845 (1992) ("Expert interrogators have long recognized, and continue to instruct, that a confession is a primary source for determining the existence and whereabouts of the fruits of a crime, such as documents or weapons. ").
231. See David A. Wollin, Policing the Police: Should Miranda Violations Bear Fruit?, 53 Ohio St. L.J. 805, 845 (1992) ("Expert interrogators have long recognized, and continue to instruct, that a confession is a primary source for determining the existence and whereabouts of the fruits of a crime, such as documents or weapons. ").
232. The full transcript of the videotape is reprinted in an appendix to Professor Weisselberg's article.
233. See David A. Wollin, Policing the Police: Should Miranda Violations Bear Fruit?, 53 Ohio St. L.J. 805, 845 (1992) ("Expert interrogators have long recognized, and continue to instruct, that a confession is a primary source for determining the existence and whereabouts of the fruits of a crime, such as documents or weapons. ").
234. United States v. Patane, 304 F.3d 1013, 1019 (10th Cir. 2002).
235. Compare Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 Iowa L. Rev. 175 (1999)
236. 530 U.S. 428 (2000).
237. Donald A. Dripps, Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-But-Shallow, 43 Wm. & Mary L. Rev. 1, 33 (2001).
238. See Paul G. Cassell, The Paths Not Taken: The Supreme Court's Failure in Dickerson, 99 Mich. L. Rev. 898 (2001).
239. See Paul G. Cassell, The Paths Not Taken: The Supreme Court's Failure in Dickerson, 99 Mich. L. Rev. 898 (2001).
240. Dickerson, 530 U.S. at 454 (Scalia, J., dissenting, joined by Thomas, J.) (first emphasis added).
241. Dickerson, 530 U.S. at 454 (Scalia, J., dissenting, joined by Thomas, J.) (first emphasis added).
242. Dickerson, 530 U.S. at 454 (Scalia, J., dissenting, joined by Thomas, J.) (first emphasis added).
243. Dickerson, 530 U.S. at 454 (Scalia, J., dissenting, joined by Thomas, J.) (first emphasis added).
244. Craig Bradley, Behind the Dickerson Decision, 36 Trial (Oct. 2000), at 1073.
245. Craig Bradley, Behind the Dickerson Decision, 36 Trial (Oct. 2000), at 1073.
246. See generally Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006).
247. 538 U.S. 760 (2003). Justice Thomas's plurality opinion was joined by Chief Justice Rehnquist in its entirety and in large part by Justices O'Connor and Scalia.
248. 542 U.S. 630 (2004). Chief Justice Rehnquist and Justice Scalia joined Justice Thomas's plurality opinion. Justice Kennedy, joined by Justice O'Connor, concurred in the judgment.
249. Martinez, 538 U.S. at 770.
250. Patane, 542 U.S. at 636.
251. In a companion case to Patane, Missouri v. Seibert, 542 U.S. 600 (2004), a 5-4 majority, per Souter, J., did exclude a "second confession. " But Seibert grew out of egregious facts: The principal police interrogator had admittedly been trained to use a two-stage interrogation technique designed to circumvent Miranda. At the first questioning session with the defendant the police interrogator deliberately failed to give any warnings at all-which he had been trained to do. Moreover, the statement ultimately admitted into evidence was "largely a repeat" of the statement the police had obtained during the first questioning session. Justice Kennedy cast the deciding vote in Seibert. He left little doubt that he (1) approved Elstad's reasoning; (2) believed that Elstad had been unaffected by Dickerson; and (3) would admit the incriminating statement obtained during the second questioning session in a less egregious "second confession" case.
252. United States v. Patane, 304 F.3d 1013, 1019 (10th Cir. 2002), rev'd, 542 U.S. 630 (2004).
253. United States v. Patane, 304 F.3d 1013, 1019 (10th Cir. 2002), rev'd, 542 U.S. 630 (2004).
254. Patane, 542 U.S. at 643.
255. Patane, 542 U.S. at 643.
256. Cf. Holt v. United States, 218 U.S. 245 (1910) (requiring a person to put on a blouse is not a violation of the privilege).
257. See Schmerber v. California, 384 U.S. 757 (1966) (not a violation of the privilege).
258. 142 U.S. 547 (1892).
259. Dickerson v. United States, 530 U.S. 428, 442 (2000) (emphasis added).
260. Dickerson v. United States, 530 U.S. 428, 442 (2000) (emphasis added).
261. Most of the participants in Symposium: Miranda After Dickerson: The Future of Confession Law, 99 Mich. L. Rev. 879, 879-1247 (2001) suggested various reasons why Chief Justice Rehnquist voted the way he did. (The participants were: Paul Cassell, Yale Kamisar, Susan R. Klein, Richard A. Leo, Laurie Magid, Stephen J. Schulhofer, David A. Strauss, William J. Stuntz, George C. Thomas III, Charles D. Weisselberg and Welsh S. White.)
262. See also Craig Bradley, Behind the Dickerson Decision, 36 Trial 80 (Oct. 2000).
263. Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2001 Sup. Ct. Rev. 61
264. Daniel M. Katz, Institutional Rules, Strategic Behavior, and the Legacy of Chief Justice Rehnquist: Setting the Record Straight in Dickerson v. United States, 22 J. L. & Pol 303 (2006).
265. R. Ted Cruz, In Memoriam: William H. Rehnquist, 119 Harv. L. Rev. 10 (2005).
266. R. Ted Cruz, In Memoriam: William H. Rehnquist, 119 Harv. L. Rev. 10 (2005).
267. United States v. Patane, 542 U.S. 630, 640 (2010) (emphasis added).
268. Fred E. Inbau & John E. Reid, Criminal Interrogation and Confessions (1962).
269. Robert M. Thomas Jr., Fred Inbau, 89, Criminologist Who Perfected Interrogation, N.Y. Times, May 28, 1998, at B9.
270. Miranda v. Arizona, 384 U.S. 436, 449 (1966).
271. Miranda v. Arizona, 384 U.S. 436, 449 (1966).
272. See generally Ronald J. Allen, Tribute to Fred Inbau, 89 J. Crim. L. & Criminology 1271 (1999)
273. Joseph D. Grano, Selling the Idea to Tell the Truth: The Professional Interrogation and Modern Confessions Law, 84 Mich. L. Rev. 662 (1986)
274. Yale Kamisar, Fred E. Inbau: "The Importance of Being Guilty, " 68 J. Crim. L. & Criminology 182 (1977)
275. Yale Kamisar, What is an "Involuntary" Confession: Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 Rutgers L. Rev. 728 (1963).
276. Until Miranda was handed down, very few law schools, if any, offered criminal procedure as a separate course. That changed very quickly.
277. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1528.
278. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1528.
279. Robert M. Thomas Jr., Fred Inbau, 89, Criminologist Who Perfected Interrogation, N.Y. Times, May 28, 1998, at B9.
280. 560 U.S.,130 S. Ct. 2250 (2010).
281. See Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 Tulsa L.J. 465, 478-80 (1999).
282. See Yale Kamisar, Confessions, Search and Seizure and the Rehnquist Court, 34 Tulsa L.J. 465, 478-80 (1999).
283. Thompkins, 130 S. Ct. at 2256-57.
284. Thompkins, 130 S. Ct. at 2256-57.
285. Thompkins, 130 S. Ct. at 2256-57.
286. Thompkins, 130 S. Ct. at 2256-57.
287. Thompkins, 130 S. Ct. at 2256-57.
288. Thompkins, 130 S. Ct. at 2256-57.
289. Thompkins, 130 S. Ct. at 2256-57.
290. Thompkins, 130 S. Ct. at 2256-57.
291. Thompkins, 130 S. Ct. at 2256-57.
292. Thompkins, 130 S. Ct. at 2256-57.
293. Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in The Burger Years (Herman Schwartz ed., 1987), at 650.
294. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
295. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
296. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
297. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
298. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
299. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
300. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
301. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
302. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
303. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
304. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
305. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
306. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
307. Miranda v. Arizona, 384 U.S. 436, 479 (1966).
308. 378 U.S. 478 (1964).
309. Miranda, 384 U.S. at 465.
310. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1522.
311. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1522.
312. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1522.
313. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1522.
314. Berghuis v. Thompkins, 560 U.S., 130 S. Ct. 2250, 2263 (2010) (quoting Davis v. United States, 512 U.S. 452, 460 (1994).
315. Berghuis v. Thompkins, 560 U.S., 130 S. Ct. (2010), at 1215. Professor White further cites "examples of questioning that is so rapid that the suspect has no practical opportunity to halt the questioning in order to invoke his rights. " (citing Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions, 16 Stud. L. Pol. & Soc'y 189, 227-30 (1997).
316. Thompkins, 130 S. Ct. at 2264.
317. Thompkins, 130 S. Ct. at 2264.
318. Thompkins, 130 S. Ct. at 2264.
319. Thompkins, 130 S. Ct. at 2264.
320. Thompkins, 130 S. Ct. at 2264.
321. E-mail from Richard A. Leo, Assoc. Professor of Law, Univ. of S.F., to author (Feb. 4, 2012) (on file with author).
322. Richard Leo, Police Interrogation and American Justice 280-83 (2008), at 25
323. Richard Leo, Police Interrogation and American Justice 280-83 (2008), at 25
324. Miranda v. Arizona, 384 U.S. 436, 475 (1966).
325. Miranda v. Arizona, 384 U.S. 436, 475 (1966).
326. See Berghuis v. Thompkins, 560 U.S., 130 S. Ct. 2250, 2263 (2010).
327. See Berghuis v. Thompkins, 560 U.S., 130 S. Ct. 2250, 2263 (2010).
328. See Berghuis v. Thompkins, 560 U.S., 130 S. Ct. 2250, 2263 (2010).
329. Miranda, 384 U.S. at 475.
330. Thompkins, 130 S. Ct. at 2264. Earlier in its opinion, the majority had said virtually the same thing. The majority also observed more generally: As a general proposition, the law can presume than an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise and has made a deliberate choice to relinquish the protection those rights afford....... Thompkins' answer to Helgert's question about praying to God for forgiveness... was sufficient to show a course of conduct indicating waiver.
331. Brief for the National Association of Criminal Defense Lawyers (NACDL) and the ACLU as Amici Curiae Supporting Respondent at 6, Thompkins, 130 S. Ct. 2250 (No. 08-1470).
332. Brief for the National Association of Criminal Defense Lawyers (NACDL) and the ACLU as Amici Curiae Supporting Respondent at 6, Thompkins, 130 S. Ct. 2250 (No. 08-1470).
333. George C. Thomas III & Richard A. Leo, Confessions of Guilt: From Torture to Miranda and Beyond 192 (2012).
334. 441 U.S. 369 (1979) (per Stewart, J.).
335. Thompkins, 130 S. Ct. at 2261.
336. See Butler, 441 U.S. at 370, 371.
337. Thompkins, 130 S. Ct. at 2266, 2271 (Sotomayor, J., dissenting, joined by Stevens, Ginsburg, and Breyer, JJ.).
338. One of Butler's arguments was that in order for a waiver of rights to be effective, a custodial suspect had to say specifically that he was waiving his right to the presence of counsel or the right to remain silent. See Butler, 441 U.S. at 370-71. After all, Miranda does say that "[an] express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. " Miranda v. Arizona, 384 U.S. 436, 475 (1966) (emphasis added).
339. 479 U.S. 523 (1987) (Brennan, J., concurring).
340. Thompkins, 130 S. Ct. at 2261 (referring to Barrett, 479 U.S. at 531-32).
341. 512 U.S. 452 (1994).
342. See Thompkins, 130 S. Ct. at 2253-60 (discussing Davis, 512 U.S. at 455).
343. See Thompkins, 130 S. Ct. at 2253-60 (discussing Davis, 512 U.S. at 455).
344. Davis, 512 U.S. at 455.
345. Davis, 512 U.S. at 455.
346. Davis, 512 U.S. at 470-71 (Souter, J., concurring, joined by Blackmun, Stevens and Ginsburg, JJ.).
347. Thompkins, 130 S. Ct. at 2276 (Sotomayor, J., dissenting).
348. Charles J. Ogletree, Are Confessions Really Good for the Soul?: A Proposal to Mirandize Miranda, 100 Harv. L. Rev. 1826, 1830 (1987).
349. Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69, 75 (1989).
350. Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69, 75 (1989).
351. Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69, 75 (1989).
352. Irene Merker Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69, 75 (1989).
353. Otis H. Stephens, Jr., The Supreme Court and Confessions of Guilt 205 (1973).
354. Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. (1959), at 525.
355. Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. (1959), at 525.
356. Moran v. Burbine, 475 U.S. 412, 426 (1986)
357. Symposium, Has the Court left the Attorney-General Behind?, 54 Ky. L.J. 464, 521, 520, 523 (1966).
358. Symposium, Has the Court left the Attorney-General Behind?, 54 Ky. L.J. 464, 521, 520, 523 (1966).
359. Symposium, Has the Court left the Attorney-General Behind?, 54 Ky. L.J. 464, 521, 520, 523 (1966).
360. Symposium, Has the Court left the Attorney-General Behind?, 54 Ky. L.J. 464, 521, 520, 523 (1966).
361. Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in The Burger Years 143, 150 (Herman Schwartz ed., 1987).
362. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1524.
363. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1524.
364. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1524.
365. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1524.
366. 560 U.S.,130 S. Ct. 2250 (2010).
367. 560 U.S.,130 S. Ct. 2250 (2010).
368. 560 U.S.,130 S. Ct. 2250 (2010).
369. See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1528, at 1564 (discussing Duckworth v. Eagan, 492 U.S. 195 (1989).
370. See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1528, at 1564 (discussing Duckworth v. Eagan, 492 U.S. 195 (1989).
371. See Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1528, at 1597-99.
372. 538 U.S. 760 (2003).
373. Dickerson v. United States, 530 U.S. 428, 432 (2000).
374. Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. (1996), at 869-70.
375. See Yale Kamisar, How Much Does It Really Matter Whether Courts Work Within the "Clearly Marked" Provisions of the Bill of Rights or With the "Generalities" of the Fourteenth Amendment?, 18 J. Contemp. Legal Issues 513, 522-27 (2009). After all, the Warren Court told us that the fact that "a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation... is a significant factor in considering the voluntariness of statements later made. " Davis v. North Carolina, 384 U.S. 737, 740-41 (1966) (emphasis added) (applying the "voluntariness" test on habeas corpus).
376. Yale Kamisar, How Much Does It Really Matter Whether Courts Work Within the "Clearly Marked" Provisions of the Bill of Rights or With the "Generalities" of the Fourteenth Amendment?, 18 J. Contemp. Legal Issues (2009), at 525 n.59.
377. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1597.
378. Brandon L. Garrett, Convicting the Innocent 248 (2011) (finding that "[at] least 500 police departments now videotape interrogations. Police in these departments have reported positive experiences with videotaping and say that recording does not discourage a suspect's cooperation").
379. Alaska required tape recording as a matter of due process under its state constitution. See Stephan v. State, 711 P.2d 1156 (Alaska 1985). Minnesota followed when the state supreme court exercised its supervisory powers over state criminal justice.
380. See State v. Scales, 518 N.W.2d 587 (Minn. 1994). Today, however, most of the nineteen jurisdictions that "require or encourage electronic recording of at least some interrogations" do so by statute.
381. See Brandon L. Garrett, Convicting the Innocent (2011), at 248.
382. Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping of Interrogations is the Solution to Illinois' Problem of False Confessions, 32 Loyola U. Chi. L.J. 337, 339 (2001).
383. Paul Cassell has forcefully argued that custodial suspects should be deprived of certain Miranda rights in return for a requirement that all police interrogators be videotaped. See Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 486-96 (1996).
384. Dickerson v. United States, 530 U.S. n.6 (2000), at 300.
385. For the view that there are three constitutional grounds for requiring police interrogations to be taped, see Dickerson v. United States, 530 U.S. 428, 440 n.6 (2000).
386. Dickerson v. United States, 530 U.S. n.6 (2000), at 296
387. see also Andrew E. Taslitz, High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations, 7 Nw. J. L. & Soc. Pol'y 400, 401 (2012).
388. Richard Leo, Police Interrogation and American Justice (2008), at 296.
389. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. (2008), at 1597.
390. Robert H. Jackson, The Supreme Court in the American System of Government 82 (1955). Justice Jackson added: "[Any] court which undertakes [to] enforce civil liberties needs the support of an enlightened and vigorous public opinion which will be intelligent and discriminating as to what cases really are civil liberties cases and what questions really are involved in these cases. I do not think the American public is enlightened on this subject. "
391. Nat'l Comm'n on Law Observance & Enforcement, Report on Lawlessness in Law Enforcement (1931) [hereinafter Wickersham Report]
392. see generally Richard Leo, Police Interrogation and American Justice (2008), at 41-77.
393. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 710.
394. James E. Hogan & Joseph M. Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 3 (1958).
395. Zechariah Chafee, Remedies for the Third Degree, Atlantic Monthly, Nov. 1931, at 621, 630.
396. 318 U.S. 332 (1943). The McNabb case did not rest on any specific provision of the Constitution. Instead, it was an exercise of the Court's supervisory power over the administration of federal criminal justice. Justice Frankfurter and Chafee had once been colleagues on the Harvard Law faculty. Although Chafee's article was not cited in McNabb, it is hard to believe that Justice Frankfurter did not read Chafee's article before ascending to the Supreme Court.
397. James E. Hogan & Joseph M. Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 3 (1958).
398. Note, Prearraignment Interrogation and the McNabb-Mallory Miasma: A Proposed Amendment to the Federal Rules of Civil Procedure, 68 Yale L.J. 1003, 1008 (1959).
399. 335 U.S. 410 (1948).
400. 354 U.S. 449 (1957).
401. James E. Hogan & Joseph M. Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. (1958), at 17. A provision of 18 U.S.C. § 3501, the 1968 law that purported to "overrule" Miranda, Part (c), was aimed at the McNabb-Mallory rule. It states, in part that a confession by a person under arrest or detention "shall not be inadmissible solely because of delay in bringing such person before a magistrate judge... if such confession was made [within] six hours immediately following [the person's] arrest or other detention. " 18 U.S.C. § 3501(c) (2006). Moreover, the six-hour time limitation does not apply where the delay is found to be "reasonable" considering the means of transportation and the distance to be traveled.
402. Corley v. United States, 556 U.S. 303 (2009).
403. See generally Jerald P. Keene, The Ill-Advised State Court Revival of the McNabb-Mallory Rule, 72 J. Crim. L. & Criminology 204 (1981).
404. The Connecticut statute is discussed in State v. Vollhardt, 244 A.2d 601, 607 (Conn. 1968).
405. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 711-12.
406. Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006), at 893.
407. Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006), at 893.
408. Donald A. Dripps, Constitutional Theory for Criminal Procedure: Dickerson, Miranda, and the Continuing Quest for Broad-But-Shallow, 43 Wm. & Mary L. Rev. (2001), at 45-46.
409. For example, Kauper's article was written four months before Powell v. Alabama, 287 U.S. 45 (1932), the famous right-to-counsel case, and four years before Brown v. Mississippi, 297 U.S. 278 (1936), the Court's first Fourteenth Amendment Due Process "coerced confession" case.
410. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932). Although, as Kauper himself made clear, he was not the first to make the proposal, he was the first to evaluate with any degree of thoroughness the policy and constitutional issues raised by such a plan.
411. See Yale Kamisar, Kauper's "Judicial Examination of the Accused" Forty Years Later-Some Comments on a Remarkable Article, 73 Mich. L. Rev. 15, 15 n.3 (1974).
412. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 708-16
413. see also Walter V. Schaefer, The Suspect and Society 78-81 (1967).
414. Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006).
415. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 713
416. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 80.
417. Three decades after Judges Friendly and Schaefer revised the Kauper proposal, Akhil Reed Amar & Renée B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995), offered another plan, one which seemed to start out like the Kauper proposal, but then moved in a different direction.
418. Under the Amar-Lettow proposal (criticized in Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 Mich. L. Rev. 929 (1995), a suspect who refused to answer any questions at a judicially supervised pretrial hearing could be held in contempt. Moreover, even if the suspect were compelled to answer, whether at the pretrial hearing or in the police station, significant evidence might still be admissible. Although the suspect's compelled words could not be used against him, the evidence derived from such words-for example, the whereabouts of damaging evidence or the existence and identity of prosecution witnesses-would still be admissible. See at 858-59, 898-99. Why so? "Physical evidence... can be introduced at trial whatever its source-even if that source is a compelled pretrial utterance" because "[a] witness testifies but physical evidence does not. "
419. Under the Amar-Lettow proposal (criticized in Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 Mich. L. Rev. 929 (1995), a suspect who refused to answer any questions at a judicially supervised pretrial hearing could be held in contempt. Moreover, even if the suspect were compelled to answer, whether at the pretrial hearing or in the police station, significant evidence might still be admissible. Although the suspect's compelled words could not be used against him, the evidence derived from such words-for example, the whereabouts of damaging evidence or the existence and identity of prosecution witnesses-would still be admissible. See at 858-59, 898-99. Why so? "Physical evidence... can be introduced at trial whatever its source-even if that source is a compelled pretrial utterance" because "[a] witness testifies but physical evidence does not. "
420. See Counselman v. Hitchcock, 142 U.S. 547 (1892)
421. see also Ullmann v. United States, 350 U.S. 422, 437 (1956). The Court has made plain that the use and derivative use of the compelled testimony is coextensive with the scope of the privilege against self-incrimination. See Kastigar v. United States, 406 U.S. 441 (1972)
422. Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006) at 930-36. The Court has forbidden comment on the refusal of a defendant to testify at his own trial because such comment amounts to "a penalty imposed by courts for exercising a constitutional privilege. " Griffin v. California, 380 U.S. 609, 614 (1965). Why would the Court allow a magistrate or other judicial officer presiding over a pretrial hearing to hold a suspect in contempt for refusing to answer? Whatever one's views about the significance of Miranda, we are talking about something else-the contempt sanction-the power to compel a person to speak within the meaning of the Fifth Amendment. Amar and Lettow contemplate a day when police interrogation no longer occurs in the stationhouse, only at a pretrial hearing presided over by a judicial officer. However, if the courts follow the lead of Amar and Lettow, I doubt that day will ever arise. If the courts allow the police to use the often-valuable evidence derived from an inadmissible confession, why would the police ever cease questioning suspects in the stationhouse?
423. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1247.
424. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1247.
425. Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 6 (1956) ("Due process... at any given time includes those procedures that are fair and feasible in the light of then existing values and capabilities. ").
426. See Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 713.
427. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1248.
428. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1248.
429. See Griffin v. California, 380 U.S. 609 (1965).
430. See Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 721-22
431. see also Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 78.
432. See Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625, 2670-72 (1996)
433. Marvin Frankel, From Private Rights to Public Justice, 51 N.Y.U. L. Rev. 516, 531 (1976).
434. See Donald A. Dripps, Forward: Against Police Interrogation-and the Privilege Against Self-Incrimination, 76 J. Crim. L. & Criminology 699, 730 (1988)
435. Phillip E. Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am. Crim. L. Rev. 303, 309 (1987)
436. Stephen A. Saltzburg, Miranda v. Arizona Revisited: Constitutional Law or Judicial Fiat, 26 Washburn L.J. 1, 25 (1986).
437. Because Professor Kauper operated on the premise that a defense lawyer would not be present at the judicially-supervised proceeding, he had no occasion to discuss the defense lawyer's role. But he left no doubt that if a defense lawyer were present she would be able to act just as she does at the criminal trial itself. She would "urge [the client] to be guarded in his replies, encourage him to fabricate a denial or alibi, and make vexatious objections to questions put by the magistrate. " Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1247.
438. See Miller v. Fenton, 796 F.2d 598, 602 (3d Cir. 1986).
439. See Miller v. Fenton, 796 F.2d 598, 602 (3d Cir. 1986).
440. Paul G. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich. L. Rev. (1932), at 1247.
441. Moran v. Burbine, 475 U.S. 412, 426 (1986).
442. Missouri v. Frye, U.S., 132 S. Ct. 1399, 1407 (2012).
443. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 77.
444. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 77.
445. 378 U.S. 478 (1964).
446. To quote Justice Schaefer in his 1966 lectures, "the doctrines converging upon the institution of police interrogation are threatening to push on to their logical conclusion-to the point where no questioning of suspects will be permitted. " Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, in Benchmarks (1967), at 9
447. see also Arnold N. Enker & Sheldon H. Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49 Minn. L. Rev. 47, 91 (1964) (voicing fears that the Court might be in the process of shaping "a novel right not to confess except knowingly and with the tactical assistance of counsel"). I should add that Justice Schaefer and I had numerous conversations about police interrogation and confessions both before and after Miranda. We were both members of the Advisory Committee to the American Law Institute's Model Code of Pre-Arraignment Procedure project. In addition, we were fellow panelists at a number of gatherings and conferences about police interrogation and confessions both before and after Miranda. He was greatly concerned that the Court might ultimately abolish the institution of police interrogation. Even after Miranda was decided (a case which seemed to retreat from the most sweeping language in Escobedo), Herbert Packer, one of the leading criminal procedure commentators of his time, observed: [I]t seems safe to predict that if the Miranda rule does not produce the intended effect of reducing the incidence of confessions, particularly by suspects who do not have the financial means to obtain counsel, the Court is likely to take the next step in the direction of the Due Process Model, which would be flatly to prohibit the use in evidence of statements given by suspects to the police.
448. Herbert L. Packer, The Limits of the Criminal Sanction 194 (1968).
449. 367 U.S. 643 (1961).
450. 372 U.S. 335 (1963).
451. Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. (1959), at 540.
452. Anthony Lewis, Gideon's Trumpet 150 (1964). The twenty-two states were led by Walter F. Mondale, Attorney General of Minnesota, and Edward J. McCormack, Jr., Attorney General of Massachusetts.
453. Francis Allen, The Supreme Court, Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. (1959), at 540.
454. Brief for the State Government Amici Curiae at 4, Gideon, 372 U.S. 335 (No. 155) (emphasis added) (summary of argument).
455. Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. (1970), at 791. Professor Amsterdam went on to say: "Out there in the formless void, some adjustment will undoubtedly be made to accommodate the new 'right,' but what the product of this whole exercise will be remains unfathomable. "
456. Herbert L. Packer, The Limits of the Criminal Sanction 194 (1968), at 242.
457. Yale Kamisar, Dickerson v. United States: The Case that Disappointed Miranda's Critics-and Then Its Supporters, in The Rehnquist Legacy 106 (Craig M. Bradley ed. 2006), at 567 (oral arguments in Miranda).